EXECUTION COPY
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
THE CIT GROUP/SALES FINANCING, INC.,
Servicer
DLJ MORTGAGE CAPITAL, INC.
Seller
VESTA SERVICING, L.P.,
Special Servicer
and
JPMORGAN CHASE BANK,
Trustee
================================================================================
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
================================================================================
CSFB ABS Trust Series 2001-MH29
CSFB MANUFACTURED HOUSING PASS-THROUGH CERTIFICATES,
SERIES 2001-MH29
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................................3
SECTION 1.01 Definitions................................................3
SECTION 1.02 Interest Calculations.....................................39
ARTICLE II CONVEYANCE OF CONTRACTS; REPRESENTATIONS AND WARRANTIES.........40
SECTION 2.01 Conveyance of Contracts...................................40
SECTION 2.02 Acceptance by the Trustee of the Contracts................42
SECTION 2.03 Representations and Warranties of the Seller, the
Depositor, the Servicer and the Special
Servicer..................................................44
SECTION 2.04 Representations and Warranties of the Depositor as to
the Contracts.............................................52
SECTION 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.............................................53
SECTION 2.06 Execution and Delivery of Certificates....................53
SECTION 2.07 Covenants of the Servicer and Special Servicer............53
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..................54
SECTION 3.01 Servicer to Service Contracts.............................54
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers..............................................55
SECTION 3.03 Records; Inspection.......................................55
SECTION 3.04 Enforcement...............................................55
SECTION 3.05 Trustee to Act as Servicer................................56
SECTION 3.06 Collection of Contracts; Collection Account;
Certificate Account.......................................57
SECTION 3.07 Permitted Withdrawals from the Collection Accounts and
Certificate Account.......................................59
SECTION 3.08 Maintenance of Hazard Insurance, Collections under
Hazard Insurance Policies Consent to Transfers of
Manufactured Homes, Assumption Agreements Fidelity Bond
and Errors and Omissions
Insurance.................................................61
SECTION 3.09 Realization Upon Defaulted Contracts......................63
SECTION 3.10 Trustee to Cooperate; Release of Contract Documents.......64
SECTION 3.11 Documents, Records and Funds in Possession of a Servicer
to be Held for the Trustee................................65
SECTION 3.12 Servicing Fee.............................................65
SECTION 3.13 Access to Certain Documentation...........................65
SECTION 3.14 Annual Statement as to Compliance.........................66
SECTION 3.15 Annual Independent Public Accountants' Servicing
Statement; Financial Statements...........................66
SECTION 3.16 REMIC Compliance..........................................66
SECTION 3.17 Duties of the Loss Mitigation Advisor.....................70
SECTION 3.18 Special Serviced Contracts................................70
SECTION 3.19 Simple Interest Deficiencies..............................71
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE SERVICER......................73
SECTION 4.01 Advances by the Servicer..................................73
SECTION 4.02 Priorities of Distribution................................73
SECTION 4.03 REMIC I Realized Losses...................................77
SECTION 4.04 Monthly Statements to Certificateholders..................77
SECTION 4.05 Servicer to Cooperate.....................................81
SECTION 4.06 Guarantee Agreement.......................................81
ARTICLE V THE CERTIFICATES................................................82
SECTION 5.01 The Certificates..........................................82
SECTION 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates..................................82
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.........88
SECTION 5.04 Persons Deemed Owners.....................................89
SECTION 5.05 Access to List of Certificateholders' Names and
Addresses.................................................89
SECTION 5.06 Maintenance of Office or Agency...........................89
ARTICLE VI THE DEPOSITOR, THE SELLER, THE SERVICER AND THE SPECIAL
SERVICER........................................................90
SECTION 6.01 Respective Liabilities of the Depositor, the Seller,
the Servicer and the Special Servicer.................... 90
SECTION 6.02 Merger or Consolidation of the Depositor, the Seller or
the Servicer..............................................90
SECTION 6.03 Limitation on Liability of the Depositor, the Seller,
the Servicer and Others...................................90
SECTION 6.04 Limitation on Resignation of the Servicer.................91
SECTION 6.05 Limitation Upon Liability of the Loss Mitigation Advisor..91
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VII DEFAULT.................................................92
SECTION 7.01 Events of Default.........................................92
SECTION 7.02 Trustee to Act; Appointment of Successor..................93
SECTION 7.03 Notification to Certificateholders........................94
ARTICLE VIII CONCERNING THE TRUSTEE..........................................95
SECTION 8.01 Duties of the Trustee.....................................95
SECTION 8.02 Certain Matters Affecting the Trustee.....................96
SECTION 8.03 Trustee Not Liable for Certificates or Contracts..........97
SECTION 8.04 Trustee May Own Certificates..............................97
SECTION 8.05 Trustee's Fees and Expenses...............................97
SECTION 8.06 Eligibility Requirements for the Trustee..................98
SECTION 8.07 Resignation and Removal of the Trustee....................99
SECTION 8.08 Successor Trustee.........................................99
SECTION 8.09 Merger or Consolidation of the Trustee...................100
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee............100
SECTION 8.11 Periodic Filings.........................................101
SECTION 8.12 Trust Obligations........................................102
SECTION 8.13 Indemnification with Respect to Certain Taxes and Loss
of REMIC Status..........................................102
ARTICLE IX TERMINATION....................................................103
SECTION 9.01 Termination upon Liquidation or Purchase of the
Contracts................................................103
SECTION 9.02 Final Distribution on the Certificates...................103
SECTION 9.03 Additional Termination Requirements......................104
ARTICLE X MISCELLANEOUS PROVISIONS.......................................106
SECTION 10.01 Amendment................................................106
SECTION 10.02 Recordation of Agreement; Counterparts...................107
SECTION 10.03 Governing Law............................................108
SECTION 10.04 Intention of Parties.....................................108
SECTION 10.05 Notices..................................................108
SECTION 10.06 Severability of Provisions...............................109
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 10.07 Assignment...............................................109
SECTION 10.08 Limitation on Rights of Certificateholders...............109
SECTION 10.09 Certificates Nonassessable and Fully Paid................110
SECTION 10.10 Purposes and Powers of the Trust Fund....................110
EXHIBITS
EXHIBIT A Form of Class A Certificates
EXHIBIT B Form of Class M and Class B-1 Certificates
EXHIBIT C Form of Class B-2 Certificate
EXHIBIT D Form of Residual Certificate
EXHIBIT E Form of Class SB Certificate
EXHIBIT F Form of Initial Certification of Trustee
EXHIBIT G Form of Final Certification of Trustee
EXHIBIT H-1 Transfer of Affidavit
EXHIBIT H-2 Form of Transferor Certificate
EXHIBIT I Form of Investor Representation Letter
EXHIBIT J Form of Investment Letter (Non-rule 144A)
EXHIBIT K Form of Rule 144A Letter
EXHIBIT L Request for Release
SCHEDULE I Contract Schedule
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2001, among
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation, as
the depositor (the "Depositor"), DLJ MORTGAGE CAPITAL, INC., as seller (the
"Seller"), THE CIT GROUP/SALES FINANCING, INC., a Delaware corporation (the
"Servicer"), VESTA SERVICING, L.P., a Delaware limited partnership, as the
special servicer (the "Special Servicer") and JPMorgan Chase Bank, a New York
corporation, as the trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor intends to sell manufactured housing pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in eight
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Contracts (as defined herein). As provided herein, the REMIC
Administrator will make an election to treat the entire segregated pool of
assets relating to the Contracts, as described in the definition of REMIC I
below, as a real estate mortgage investment conduit (a "REMIC") for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC I." The Class R-I Certificates will represent the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions (as defined herein)
under federal income tax law. The following table irrevocably sets forth the
designation, the REMIC I Remittance Rate, the initial Uncertificated Balance,
and solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC I
Regular Interests. None of the REMIC I Regular Interests will be certificated.
REMIC I INITIAL LATEST
REMITTANCE UNCERTIFICATED POSSIBLE
DESIGNATION RATE BALANCE MATURITY(1)
----------- -------------- ------------------ -------------------
I-LT1 Variable(2) $108,377,227.33 September 25, 0000
X-XX0 Variable(2) $3,337.74 September 25, 0000
X-XX0 0% $7,501.81 September 25, 0000
X-XX0 Variable(2) $7,501.81 September 25, 2031
--------------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date occurring in the third month
following the maturity date for the Contract with the latest maturity
date has been designated as the "latest possible maturity date" for
each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Remittance
Rate" herein.
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as REMIC II. The Class R-II Certificates will
1
represent the sole class of "residual interests" in REMIC II for purposes of the
REMIC Provisions under federal income tax law. The following table irrevocably
sets forth the designation, remittance rate (the "REMIC II Remittance Rate") and
the initial Certificate Balance for each of the "regular interests" in REMIC II
(the "REMIC II Regular Interests"). The "latest possible maturity date"
(determined solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii)) for each REMIC II Regular Interest shall be the first
Distribution Date that follows the stated maturity date for the Contract
included in the Trust Fund as of the Closing Date with the longest remaining
term to stated maturity.
Pass- Initial Initial Ratings
Through Certificate Minimum --------------------
Designation Type Rate Balance Denomination(1) Maturity Date S&P/Fitch Xxxxx'x
----------- ------------- ---------- -------------- --------------- ------------------ --------- -------
Class A Senior/ 5.60%(2) $83,500,000 $25,000 September 25, 2031 AAA Aaa
Fixed Rate
Class R-I Senior/Residual 5.60%(2) $50 (3) September 25, 2031 AAA/NA N/A
Class R-II Senior/Residual 5.60%(2) $50 (3) September 25, 2031 AAA/NA N/A
Class M-1 Mezzanine/ 6.52%(2) $8,100,000 $25,000 September 25, 2031 AA Aa2
Fixed Rate
Class M-2 Mezzanine/ 7.11%(2) $6,500,000 $25,000 September 25, 2031 A A2
Fixed Rate
Class B-1 Subordinate/ 8.10%(2) $5,400,000 $25,000 September 25, 2031 BBB Baa2
Fixed Rate
Class B-2 Subordinate/ 8.46%(2) $3,800,000 $250,000 September 25, 2031 A A2
Fixed Rate
Class SB Subordinate (4) $1,095,468 (5) September 25, 2031 N/A N/A
(1) The Certificates, other than the Class SB Certificates and Class R
Certificates, shall be issuable in minimum dollar denominations as indicated
above (by Certificate) and integral multiples of $1 in excess thereof.
(2) The Pass-Through Rate will be capped at the Net Funds Cap.
(3) The Class R Certificates are issued in minimum Percentage Interests of
20%.
(4) For purposes of the REMIC Provisions, the Class SB Certificates shall
be comprised of two regular interests: The REMIC I Regular Interest SB-PO with a
principal balance of $1,095,468.70 and bearing no interest; and the REMIC I
Regular Interest SB-IO which has no initial principal balance and bears interest
as described in the definition of "Pass-Through Rate." To the extent that
interest accrued on the REMIC I Regular Interest SB-IO is not paid currently,
the REMIC I Regular Interest SB-IO in a later period may have a principal
balance equal to the excess, if any, of the Pool Scheduled Principal Balance
over the sum of (a) the aggregate Certificate Balances of the Certificates
(other than the Class SB Certificates) and (b) the then current principal
balance of the REMIC I Regular Interest SB-PO. Amounts applied as payments of
principal in respect of the Class SB Certificates shall be deemed to first
reduce the principal balance ascribed to the REMIC I Regular Interest SB-IO
until such principal balance shall have been reduced to zero and then to reduce
the principal balance of the REMIC I Regular Interest SB-PO.
(5) The Class SB Certificates will be issued as a single certificate.
The Contracts have an aggregate Cut-off Date Principal Balance equal to
$108,395,568.70. The Contracts are fixed-rate and have terms to maturity at
origination or modification of not more than 30 years.
2
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
ACCEPTED SERVICING PRACTICES: With respect to any Contract, those servicing
practices (including collection procedures) of prudent mortgage banking
institutions which service manufactured housing installment sales contracts or
mortgage loans, as applicable, of the same type as such Contract in the
jurisdiction where the related Collateral is located.
ACCRUAL PERIOD: With respect to any Certificates and any Distribution Date,
the calendar month preceding the month in which such Distribution
Date occurs.
ACCRUED CERTIFICATE INTEREST: With respect to each Distribution Date and
the REMIC I or REMIC II Regular Interests, the Uncertificated Accrued Interest
for such Regular Interest. With respect to the Class SB Certificates, interest
accrued during the related Accrual Period at the Pass-Through Rate for such
Certificate on the related Notional Amount for such Distribution Date.
ADVANCE: As defined in Section 4.01(a) hereof.
ADVERSE REMIC EVENT: As defined in Section 3.16(f) hereof.
AGREEMENT: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
ANCILLARY INCOME: All income derived from the Contracts, other than
Servicing Fees, including but not limited to, late charges, fees received with
respect to checks or bank drafts returned by the related bank for non-sufficient
funds, assumption fees, optional insurance administrative fees and all other
incidental fees and charges, including investment income on the applicable
Collection Account.
APPRAISED VALUE: The market value of any Collateral as set forth in the
appraisal made for the Originator at the time of origination in conjunction with
the origination of the Contract.
ASSIGNMENT OF CONTRACT: A master assignment of the Contracts, notice of
transfer or equivalent instrument sufficient to transfer title of the Contract
to the Trustee.
ASSIGNMENT OF MORTGAGE: An assignment of the Mortgage, notice of transfer
or equivalent instrument in recordable form, prepared in blank, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage to the Depositor, if recorded.
AVERAGE SIXTY-DAY DELINQUENCY RATIO: With respect to the first Distribution
Date, the Delinquency Rate for the related Due Period; with respect to the
second Distribution Date, the arithmetic average of the Delinquency Rates for
the related Due Period and the preceding Due
3
Period; and with respect to any Distribution Date thereafter, the arithmetic
average of the Delinquency Rates for the related Due Period and the two
preceding Due Periods.
BANKRUPTCY CODE: The United States Bankruptcy Reform Act of 1978, as
amended.
BOOK-ENTRY CERTIFICATES: All Classes of Certificates other than the
Physical Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which banking institutions in the City of New York, New York, or the city in
which the Corporate Trust Office of the Trustee is located, or savings and loan
institutions in the States of California, Florida, Illinois, Minnesota or Texas
are authorized or obligated by law or executive order to be closed.
CERTIFICATE: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
CERTIFICATE ACCOUNT: The separate Eligible Account created and maintained
with the Trustee, or any other bank or trust company acceptable to the Rating
Agencies which is incorporated under the laws of the United States or any state
thereof pursuant to Section 3.06(d), which account shall bear a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the Trustee on behalf of the Certificateholders or any other account
serving a similar function acceptable to the Rating Agencies.
CERTIFICATE BALANCE: Each of the Class A Certificate Balance, the Class R-I
Certificate Balance, the Class R-II Certificate Balance, the Class M-1
Certificate Balance, the Class M-2 Certificate Balance, the Class B-1
Certificate Balance, or the Class B-2 Certificate Balance, as applicable.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate.
CERTIFICATE REGISTER: The register maintained pursuant to Section 5.02.
CERTIFICATEHOLDER OR HOLDER: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any affiliate of the Depositor shall be deemed not to
be Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision hereof that requires the consent of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in determining
which Certificates are registered in the name of an affiliate of the Depositor.
CLASS: All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
4
CLASS A CERTIFICATE: Any one of the Class A Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
A hereto.
CLASS A CERTIFICATE BALANCE: At any time, the Initial Class A Certificate
Balance minus the sum of all principal distributions previously made to the
Class A Certificateholders.
CLASS A DISTRIBUTION AMOUNT: With respect to any Distribution Date, the
total amount distributed to the Class A Certificateholders pursuant to Section
4.02.
CLASS A FORMULA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, the Class A Percentage multiplied by the Formula Principal
Distribution Amount. For any Distribution Date, if the Class A Formula Principal
Distribution Amount exceeds the Class A Certificate Balance less the Unpaid
Class A Principal Shortfall with respect to such Class and Distribution Date,
then such amounts shall be allocated to the Class M-1 Formula Principal
Distribution Amount.
CLASS A INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution
Date, the difference between (i) an amount equal to the sum of (a) one month's
interest at the Class A Pass-Through Rate on the Class A Certificate Balance as
of such Distribution Date (after giving effect to the principal distributions on
the previous Distribution Date) and (b) any Class A Unpaid Interest Shortfall
and (ii) the Class A Certificates pro rata share of any Interest Shortfalls
occurring during the immediately preceding Due Period.
CLASS A INTEREST SHORTFALL: With respect to any Distribution Date, any
amount by which the amount distributed to Holders of Class A Certificates on
such Distribution Date is less than the amount computed pursuant to clause (a)
of the definition of "Class A Interest Distribution Amount."
CLASS A PASS-THROUGH RATE: With respect to any Distribution Date, a rate
equal to the lesser of (i) 5.60% per annum, plus, if the Class A Certificates
are not repurchased on the Distribution Date succeeding the Optional Termination
Date, 0.50% and (ii) the Net Funds Cap.
CLASS A PERCENTAGE: With respect to any Distribution Date, on which the
Principal Distribution Tests have not been satisfied, 100%. With respect to any
Distribution Date on which the Principal Distribution Tests have been satisfied:
the percentage equivalent of a fraction (not to exceed one), the numerator of
which is the Class A Certificate Balance and the denominator of which is the sum
of (i) the Class A Certificate Balance; (ii) if the Class M-1 Principal
Distribution Test is satisfied on such Distribution Date, the Class M-1 Adjusted
Certificate Balance, otherwise, zero; (iii) if the Class M-2 Principal
Distribution Test is satisfied on such Distribution Date, the Class M-2 Adjusted
Certificate Balance, otherwise, zero; (iv) if the Class B-1 Principal
Distribution Test is satisfied on such Distribution Date, the Class B-1 Adjusted
Certificate Balance, otherwise, zero; and (v) if the Class B-2 Principal
Distribution Test is satisfied on such Distribution Date, the sum of the Class
B-2 Adjusted Certificate Balance and the Overcollateralization Amount,
otherwise, zero in each case determined as of the immediately preceding
Distribution Date (or as of the Closing Date in the case of the first
Distribution Date).
CLASS A PRINCIPAL SHORTFALL: With respect to any Distribution Date, the
excess of the Class A Formula Principal Distribution Amount over the amount in
respect of principal actually distributed to the Class A Certificateholders on
such Distribution Date.
5
CLASS A UNPAID INTEREST SHORTFALL: With respect to any Distribution Date,
the amount, if any, by which the aggregate of the Class A Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 4.02(a) in respect of prior Class A Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) during
the related Accrual Period at the Class A Pass-Through Rate on such amount with
respect to such prior Distribution Dates.
CLASS B ADJUSTED CERTIFICATE BALANCE: At any time, the sum of the Class B-1
Adjusted Certificate Balance and the Class B-2 Adjusted Certificate Balance.
CLASS B CERTIFICATE BALANCE: As of any Distribution Date, the sum of the
Class B-1 Certificate Balance and the Class B-2 Certificate Balance (before
giving effect to the principal distributions on such Distribution Date).
CLASS B CERTIFICATES: Any of the Class B-1 and Class B-2 Certificates.
CLASS B-1 ADJUSTED CERTIFICATE BALANCE: With respect to any Distribution
Date, the Class B-1 Certificate Balance as of such Distribution Date minus the
Class B-1 Liquidation Loss Amount as of such Distribution Date, if any.
CLASS B-1 CERTIFICATE: Any one of the Class B-1 Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B hereto.
CLASS B-1 CERTIFICATE BALANCE: At any time, the Initial Class B-1
Certificate Balance minus the sum of all principal distributions previously made
to the Class B-1 Certificateholders (including distributions in respect of Class
B-1 Liquidation Loss Amounts pursuant to Section 4.02(c)).
CLASS B-1 DISTRIBUTION AMOUNT: With respect to any Distribution Date, the
total amount distributed to the Class B-2 Certificateholders pursuant to Section
4.02.
CLASS B-1 FORMULA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, the Class B-1 Percentage multiplied by the Formula Principal
Distribution Amount. For any Distribution Date, if the Class B-1 Formula
Principal Distribution Amount exceeds the Class B-1 Certificate Balance less the
Unpaid Class B-1 Principal Shortfall with respect to such Class and Distribution
Date, then such amounts shall be allocated to the Class B-2 Formula Principal
Distribution Amount.
CLASS B-1 INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution
Date, an amount equal to the difference of (i) the sum of (a) one month's
interest at the Class B-1 Pass-Through Rate on the Class B-1 Adjusted
Certificate Balance as of such Distribution Date (before giving effect to the
principal distributions on such Distribution Date) and (b) any Class B-1 Unpaid
Interest Shortfall and (ii) the Class B-1 Certificates pro rata share of any
Interest Shortfalls occurring during the immediately preceding Due Period.
CLASS B-1 INTEREST SHORTFALL: With respect to any Distribution Date, any
amount by which the amount distributed to Holders of Class B-1 Certificates on
such Distribution Date is less than the amount computed pursuant to clause (a)
of the definition of "Class B-1 Interest Distribution Amount."
6
CLASS B-1 LIQUIDATION LOSS AMOUNT: On or after the Distribution Date on
which the Class B-2 Adjusted Certificate Balance has been reduced to zero and on
or before the Distribution Date on which the Class B-1 Adjusted Certificate
Balance has been reduced to zero, the lesser of (i) the amount, if any, by which
the sum of the Class A, Class M and Class B-1 Certificate Balances exceeds the
Pool Scheduled Principal Balance and (ii) the Class B-1 Certificate Balance, in
each case after giving effect to all distributions of principal made on such
Distribution Date.
CLASS B-1 LIQUIDATION LOSS INTEREST AMOUNT: With respect to any
Distribution Date, an amount equal to interest at the Class B-1 Pass-Through
Rate during the related Accrual Period on the Class B-1 Liquidation Loss Amount,
if any, remaining unpaid after the immediately preceding Distribution Date.
CLASS B-1 PASS-THROUGH RATE: The lesser of (a) 8.10% per annum and (b) the
Net Funds Cap.
CLASS B-1 PERCENTAGE: With respect to any Distribution Date, (i) if the
Class A Certificate Balance and the Class M Certificate Balance have not been
reduced to zero and each of the Principal Distribution Tests and the Class B-1
Principal Distribution Test have not been satisfied on such Distribution Date,
zero and (ii) (a) if the Class A Certificate Balance and the Class M Certificate
Balance has been reduced to zero or (b) if the Principal Distribution Tests and
the Class B-1 Principal Distribution Test have been satisfied on such
Distribution Date: the percentage equivalent of a fraction (not to exceed one),
the numerator of which is the Class B-1 Adjusted Certificate Balance and the
denominator of which is the sum of (i) the Class A Certificate Balance; (ii) if
the Class M-1 Principal Distribution Test has been satisfied on such
Distribution Date, the Class M-1 Adjusted Certificate Balance, otherwise zero;
(iii) if the Class M-2 Principal Distribution Test has been satisfied on such
Distribution Date, the Class M-2 Adjusted Certificate Balance, otherwise zero;
(iv) the Class B-1 Adjusted Certificate Balance; and (v) if the Class B-2
Principal Distribution Test is satisfied on such Distribution Date, the sum of
the Class B-2 Adjusted Certificate Balance and the Overcollateralization Amount,
otherwise, zero; in each case determined as of the immediately preceding
Distribution Date (or as of the Closing Date in the case of the first
Distribution Date).
CLASS B-1 PRINCIPAL DISTRIBUTION TEST: A test that will be satisfied on any
Distribution Date if the sum of the Class B-1 Adjusted Certificate Balance,
Class B-2 Adjusted Certificate Balance and the Overcollateralization Amount
divided by the Pool Scheduled Principal Balance as of the immediately preceding
Distribution Date equals or exceeds 25%.
CLASS B-1 PRINCIPAL SHORTFALL: With respect to any Distribution Date, the
excess, if any, of the Class B-1 Formula Principal Distribution Amount for such
Distribution Date over the amount in respect of principal actually distributed
to the Class B-1 Certificateholders on such Distribution Date.
CLASS B-1 SIMPLE INTEREST DEFICIENCY: With respect to any Distribution
Date, any deficiency in the Class B-1 Interest Distribution Amount resulting
from Net Simple Interest Shortfall.
CLASS B-1 SIMPLE INTEREST DEFICIENCY AMOUNT: With respect to any
Distribution Date, the aggregate of all amounts distributed to the Class B-1
Certificates in respect of Section 3.19 hereof in respect of Class B-1 Simple
Interest Deficiency.
7
CLASS B-1 UNPAID INTEREST SHORTFALL: With respect to any Distribution Date,
the amount, if any, by which the aggregate of the Class B-1 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 4.02(a) in respect of prior Class B-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) during
the related Accrual Period at the Class B-1 Pass-Through Rate on such amount
with respect to such prior Distribution Dates.
CLASS B-1 UNPAID LIQUIDATION LOSS INTEREST SHORTFALL: With respect to any
Distribution Date on or after the Distribution Date on which the Class B-2
Adjusted Certificate Balance has been reduced to zero, the amount, if any, by
which the aggregate unreimbursed Class B-1 Liquidation Loss Interest Amounts for
one or more prior Distributions Dates exceeds the amount previously distributed
to the Class B-1 Certificateholders in respect of Liquidation Loss Interest
Amounts on one or more prior Distribution Dates.
CLASS B-2 ADJUSTED CERTIFICATE BALANCE: With respect to any Distribution
Date, the Class B-2 Certificate Balance as of such Distribution Date minus the
Class B-2 Liquidation Loss Amount as of such Distribution Date, if any.
CLASS B-2 CERTIFICATE: Any one of the Class B-2 Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
C hereto.
CLASS B-2 CERTIFICATE BALANCE: At any time, the Initial Class B-2
Certificate Balance minus the sum of all principal distributions previously made
to the Class B-2 Certificateholders (including distributions in respect of Class
B-2 Liquidation Loss Amounts pursuant to Section 4.02(c) and all amounts paid
under the Guarantee Agreement).
CLASS B-2 DISTRIBUTION AMOUNT: With respect to any Distribution Date, the
total amount distributed to the Class B-2 Certificateholders pursuant to Section
4.02.
CLASS B-2 FORMULA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, the Class B-2 Percentage multiplied by the Formula Principal
Distribution Amount. For any Distribution Date, if the Class B-2 Formula
Principal Distribution Amount exceeds the Class B-2 Certificate Balance less the
Unpaid Class B-2 Principal Shortfall with respect to such Class and Distribution
Date, then such amounts shall be allocated to the Class SB Certificates pursuant
to Section 4.02(c)(xv) or (xvi) hereof, as applicable.
CLASS B-2 INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution
Date, an amount equal to the difference between (i) the sum of (a) one month's
interest at the Class B-2 Pass-Through Rate on the Class B-2 Adjusted
Certificate Balance as of such Distribution Date (before giving effect to the
principal distributions on such Distribution Date) and (b) any Class B-2 Unpaid
Interest Shortfall and (ii) the Class B-2 Certificates pro rata share of any
Interest Shortfalls occurring during the immediately preceding Due Period.
CLASS B-2 INTEREST SHORTFALL: With respect to any Distribution Date, any
amount by which the amount distributed to Holders of Class B-2 Certificates on
such Distribution Date is less than the amount computed pursuant to clause (a)
of the definition of "Class B-2 Interest Distribution Amount."
8
CLASS B-2 LIQUIDATION LOSS AMOUNT: On or before the Distribution Date prior
to which the Class B-2 Adjusted Certificate Balance has been reduced to zero,
the lesser of (i) the amount, if any, by which the sum of the Class A, Class M
and Class B Certificate Balances exceeds the Pool Scheduled Principal Balance
and (ii) the Class B-2 Certificate Balance, in each case after giving effect to
all distributions of principal made on such Distribution Date.
CLASS B-2 LIQUIDATION LOSS INTEREST AMOUNT: With respect to any
Distribution Date, an amount equal to interest at the Class B-2 Pass-Through
Rate during the related Accrual Period on the Class B-2 Liquidation Loss Amount,
if any, remaining unpaid after the immediately preceding Distribution Date.
CLASS B-2 PASS-THROUGH RATE: The lesser of (a) 8.46% per annum and (b) the
Net Funds Cap.
CLASS B-2 PERCENTAGE: With respect to any Distribution Date, (i) if the
Class A Certificate Balance, the Class M Certificate Balance and the Class B-1
Certificate Balance have not been reduced to zero and all of the Principal
Distribution Tests and the Class B-2 Principal Distribution Test have not been
satisfied on such Distribution Date, zero and (ii)(a) if the Class A Certificate
Balance, Class M Certificate Balance and the Class B-1 Certificate Balance have
been reduced to zero or (b) if the Principal Distribution Tests and the Class
B-2 Principal Distribution Test have been satisfied on such Distribution Date:
the percentage equivalent of a fraction (not to exceed one), the numerator of
which is the Class B-2 Adjusted Certificate Balance plus the
Overcollateralization Amount and the denominator of which is the sum of (i) the
Class A Certificate Balance; (ii) if the Class M-1 Principal Distribution Test
has been satisfied on such Distribution Date, the Class M-1 Adjusted Certificate
Balance, otherwise zero; (iii) if the Class M-2 Principal Distribution Test has
been satisfied on such Distribution Date, the Class M-2 Adjusted Certificate
Balance, otherwise zero; (iv) if the Class B-1 Principal Distribution Test has
been satisfied on such Distribution Date, the Class B-1 Adjusted Certificate
Balance, otherwise zero; and (v) the sum of the Class B-2 Adjusted Certificate
Balance and the Overcollateralization Amount; in each case determined as of the
immediately preceding Distribution Date (or as of the Closing Date in the case
of the first Distribution Date).
CLASS B-2 PRINCIPAL DISTRIBUTION TEST: A test that will be satisfied on any
Distribution Date if the sum of the Class B-2 Adjusted Certificate Balance and
the Overcollateralization Amount divided by the Pool Scheduled Principal Balance
as of the immediately preceding Distribution Date equals or exceeds 15%.
CLASS B-2 PRINCIPAL SHORTFALL: With respect to any Distribution Date, the
excess, if any, of the Class B-2 Formula Principal Distribution Amount for such
Distribution Date over the amount in respect of principal actually distributed
to the Class B-2 Certificateholders on such Distribution Date.
CLASS B-2 SIMPLE INTEREST DEFICIENCY: With respect to any Distribution
Date, any deficiency in the Class B-2 Interest Distribution Amount resulting
from Net Simple Interest Shortfall.
CLASS B-2 SIMPLE INTEREST DEFICIENCY AMOUNT: With respect to any
Distribution Date, the aggregate of all amounts distributed to the Class B-2
Certificates in respect of Section 3.19 hereof in respect of Class B-2 Simple
Interest Deficiency.
9
CLASS B-2 UNPAID INTEREST SHORTFALL: With respect to any Distribution Date,
the amount, if any, by which the aggregate of the Class B-2 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 4.02(a) in respect of prior Class B-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) during
the related Accrual Period at the Class B-2 Pass-Through Rate on such amount
with respect to such prior Distribution Dates.
CLASS B-2 UNPAID LIQUIDATION LOSS INTEREST SHORTFALL: With respect to any
Distribution Date, the amount, if any, by which the aggregate unreimbursed Class
B-2 Liquidation Loss Interest Amounts for one or more prior Distributions Dates
exceeds the amount previously distributed to the Class B-2 Certificateholders in
respect of Liquidation Loss Interest Amounts on one or more prior Distribution
Dates.
CLASS I-LT PRINCIPAL REDUCTION AMOUNTS: For any Distribution Date, the
amounts by which the principal balances of the Class I-LT1, Class I-LT2, Class
I-LT3 and Class I-LT4 REMIC I Regular Interest respectively will be reduced on
such Distribution Date by the allocation of Realized Losses and the distribution
of principal, determined as follows:
For purposes of the succeeding formulas the following symbols shall have
the meanings set forth below:
Y1 = the principal balance of the Class I-LT1 REMIC I Regular Interest
after the allocation of REMIC I Realized Losses and making of
distributions on the prior Distribution Date.
Y2 = the principal balance of the Class I-LT2 REMIC I Regular Interest
after the allocation of REMIC I Realized Losses and making of
distributions on the prior Distribution Date.
Y3 = the principal balance of the Class I-LT3 REMIC I Regular Interest
after the allocation of REMIC I Realized Losses and making of
distributions on the prior Distribution Date.
Y4 = the principal balance of the Class I-LT4 REMIC I Regular Interest
after the allocation of REMIC I Realized Losses and making of
distributions on the prior Distribution Date (note: Y3 = Y4).
?Y1 = the Class I-LT1 Principal Reduction Amount.
?Y2 = the Class I-LT2 Principal Reduction Amount.
?Y3 = the Class I-LT3 Principal Reduction Amount.
?Y4 = the Class I-LT4 Principal Reduction Amount.
P0 = the aggregate principal balance of the Class I-LT1, Class I-LT2,
Class I-LT3, and Class I-LT4 REMIC I Regular Interest after
distributions and the allocation of Realized Losses on the prior
Distribution Date.
10
= the aggregate principal balance of the Contracts after giving
effect to principal payments distributed and Realized Losses
allocated on the prior Distribution Date.
P1 = the aggregate principal balance of the Class I-LT1, Class I-LT2,
Class I-LT3 and Class I-LT4 REMIC I Regular Interest after
distributions and the allocation of Realized Losses to be made on
such Distribution Date.
????? the aggregate principal balance of the Contracts after giving
effect to principal payments distributed and Realized Losses
allocated on such Distribution Date.
?P = P0 - P1 = the aggregate of the Class I-LT1, Class I-LT2, Class
I-LT3 and Class I-LT4 Principal Reduction Amounts.
= the sum of (I) the aggregate of the Realized Losses attributable
to the Contracts for such Distribution Date and allocated to
principal by the definition of REMIC I Realized Losses, (II) the
portion of Principal Collections for such Distribution Date
attributable to the Contracts and (III) the principal portion of
amounts advanced for such Distribution Date in respect of the
Contracts.
R0 = the weighted average of the Net Contract Rates (stated as a
monthly rate) after giving effect to amounts distributed and
Realized Losses allocated on the prior Distribution Date.
R1 = the weighted average of the Net Contract Rates (stated as a
monthly rate) after giving effect to amounts to be distributed and
Realized Losses to be allocated on such Distribution Date.
(alpha)= (Y2 + Y3)/P0. The initial value of (alpha) on the Closing Date for
use on the first Distribution Date shall be 0.0001.
(gamma)0 = the lesser of (A) the sum of (i)the sum for all Classes of Class
A, Class M and Class B Certificates of the product of (a) the
monthly interest rate for such Class and (b) the Certificate
Balance for such Class after distributions and the allocation of
Realized Losses to be made on the prior Distribution Date, (ii)
the sum for all classes of Class A, Class M and Class B
Certificates of the Interest Shortfall Amounts for such
Distribution Date and (iii) the sum for all classes of Class A,
Class M and Class B Certificates of the Unpaid Interest
Shortfall Amounts for such Distribution Date and (B) Ro*Po.
(gamma)1 = the lesser of (A) the sum of (i) the sum for all Classes of
Class A, Class M and Class B Certificates of the product of (a)
the monthly interest rate for such Class and (b) the Certificate
Balance for such Class after distributions and the allocation of
Realized Losses to be made on such Distribution Date, (ii) the
sum for all classes of Class A, Class M and Class B Certificates
of the Interest Shortfall Amounts for the next succeeding
Distribution Date and (iii) the sum for all classes of Class A,
Class M and Class B Certificates of the Unpaid Interest
Shortfall Amounts for the next succeeding Distribution Date and
(B) R1*P1.
11
Then, based on the foregoing definitions:
?Y1 = ?P - ?Y2 - ?Y3 - ?Y4;
?Y2 = ((alpha)/2){((gamma) 0R1 - (gamma)1R0)/R0R1};
?Y3 = (alpha)?P - ?Y2; and
?Y4 = ?Y3.
if both ?Y2 and ?Y3, as so determined, are non-negative numbers. Otherwise:
(1) If ?Y2, as so determined, is negative, then
?Y2 = 0;
?Y3 = {2(alpha)?PY2R1R0-(alpha)2P0((gamma)0R1-(gamma)1R0)}/
{2(alpha)Y2R1R0-(alpha)((gamma)0R1-(gamma)1R0)};
?Y4 = ?Y3; and
?Y1 = ?P - ?Y2 - ?Y3 - ?Y4.
(2) If ?Y3, as so determined, is negative, then
?Y3 = 0;
?Y2 = {(alpha)2P0((gamma)0R1-(gamma)1R0)}-2(alpha)?PY2R1R0}/
(2(alpha)Y2R1R0-2(alpha)?PR1R0+(alpha)((gamma)0R1-(gamma)1R0)};
?Y4 = ?Y3; and
?Y1 = ?P - ?Y2 - ?Y3 - ?Y4.
CLASS I-LT1 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, the
excess, if any, of the Class I-LT1 Principal Reduction Amount for such
Distribution Date over the principal Realized Losses allocated to the Class
I-LT1 Certificates on such Distribution Date.
CLASS I-LT2 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, the
excess, if any, of the Class I-LT2 Principal Reduction Amount for such
Distribution Date over the principal Realized Losses allocated to the Class
I-LT2 Certificates on such Distribution Date.
CLASS I-LT3 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, the
excess, if any, of the Class I-LT3 Principal Reduction Amount for such
Distribution Date over the principal Realized Losses allocated to the Class
I-LT3 Certificates on such Distribution Date.
CLASS I-LT4 PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, the
excess, if any, of the Class I-LT4 Principal Reduction Amount for such
Distribution Date over the principal Realized Losses allocated to the Class
I-LT4 Certificates on such Distribution Date.
CLASS M CERTIFICATES: Any of the Class M-1 and Class M-2 Certificates.
12
CLASS M CERTIFICATE BALANCE: With respect to any Distribution Date, the sum
of the Class M-1 and Class M-2 Certificate Balance (before giving effect to the
principal distributions on such Distribution Date).
CLASS M CERTIFICATES: The Class M-1 Certificates and the Class M-2
Certificates.
CLASS M-1 ADJUSTED CERTIFICATE BALANCE: With respect to any Distribution
Date, the Class M-1 Certificate Balance as of such Distribution Date minus the
Class M-1 Liquidation Loss Amount as of such Distribution Date, if any.
CLASS M-1 CERTIFICATE: Any one of the Class M-1 Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B hereto.
CLASS M-1 CERTIFICATE BALANCE: At any time, the Initial Class M-1
Certificate Balance minus the sum of all principal distributions previously made
to the Class M-1 Certificateholders (including distributions in respect of Class
M-1 Liquidation Loss Amounts pursuant to Section 4.02(c)).
CLASS M-1 DISTRIBUTION AMOUNT: With respect to any Distribution Date, the
total amount distributed to the Class M-1 Certificateholders pursuant to Section
4.02.
CLASS M-1 FORMULA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, the Class M-1 Percentage multiplied by the Formula Principal
Distribution Amount. For any Distribution Date, if the Class M-1 Formula
Principal Distribution Amount exceeds the Class M-1 Certificate Balance less the
Unpaid Class M-1 Principal Shortfall with respect to such Class and Distribution
Date, then such amounts shall be allocated to the Class M-2 Formula Principal
Distribution Amount.
CLASS M-1 INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution
Date, an amount equal to the difference between (i) the sum of (a) one month's
interest at the Class M-1 Pass-Through Rate on the Class M-1 Adjusted
Certificate Balance as of such Distribution Date (before giving effect to the
principal distributions on such Distribution Date) and (b) any Class M-1 Unpaid
Interest Shortfall and (ii) the Class M-1 Certificates pro rata share of any
Interest Shortfalls occurring during the immediately preceding Due Period.
CLASS M-1 INTEREST SHORTFALL: With respect to any Distribution Date, any
amount by which the amount distributed to Holders of Class M-1 Certificates on
such Distribution Date is less than the amount computed pursuant to clause (a)
of the definition of "Class M-1 Interest Distribution Amount."
CLASS M-1 LIQUIDATION LOSS AMOUNT: On or after the Distribution Date on
which the Class M-2 Adjusted Certificate Balance has been reduced to zero and on
or before the Distribution Date on which the Class M-1 Adjusted Certificate
Balance has been reduced to zero, the lesser of (i) the amount, if any, by which
the sum of the Class A and Class M-1 Certificate Balances exceeds the Pool
Scheduled Principal Balance and (ii) the Class M-1 Certificate Balance, in each
case after giving effect to all distributions of principal made on such
Distribution Date.
CLASS M-1 LIQUIDATION LOSS INTEREST AMOUNT: With respect to any
Distribution Date, an amount equal to interest at the Class M-1 Pass-Through
Rate during the related Accrual Period on
13
the Class M-1 Liquidation Loss Amount allocable to the Class M-1 Certificates,
if any, remaining unpaid after the immediately preceding Distribution Date.
CLASS M-1 PASS-THROUGH RATE: The lesser of (a) 6.52% per annum and (b) the
Net Funds Cap.
CLASS M-1 PERCENTAGE: With respect to any Distribution Date, (i) if the
Class A Certificate Balance has not been reduced to zero and each of the
Principal Distribution Tests and the Class M-1 Principal Distribution Test have
not been satisfied on such Distribution Date, zero, and (ii) (a) if the Class A
Certificate Balance has been reduced to zero or (b) if the Principal
Distribution Tests and the Class M-1 Principal Distribution Test have been
satisfied on such Distribution Date: the percentage equivalent of a fraction
(not to exceed one), the numerator of which is the Class M-1 Adjusted
Certificate Balance and the denominator of which is the sum of (i) the Class A
Certificate Balance; (ii) the Class M-1 Adjusted Certificate Balance; (iii) if
the Class M-2 Principal Distribution Test is satisfied on such Distribution
Date, the Class M-2 Adjusted Certificate Balance, otherwise zero; (iv) if the
Class B-1 Principal Distribution Test is satisfied on such Distribution Date,
the Class B-1 Adjusted Certificate Balance, otherwise zero; and (v) if the Class
B-2 Principal Distribution Test is satisfied on such Distribution Date, the sum
of the Class B-2 Adjusted Certificate Balance and the Overcollateralization
Amount, otherwise, zero; in each case determined as of the immediately preceding
Distribution Date (or as of the Closing Date in the case of the first
Distribution Date).
CLASS M-1 PRINCIPAL DISTRIBUTION TEST: A test that will be satisfied on any
Distribution Date if the sum of the Class M-1 Adjusted Certificate Balance,
Class M-2 Adjusted Certificate Balance, Class B-1 Adjusted Certificate Balance,
Class B-2 Adjusted Certificate Balance and the Overcollateralization Amount
divided by the Pool Scheduled Principal Balance as of the immediately preceding
Distribution Date equals or exceeds 52%.
CLASS M-1 PRINCIPAL SHORTFALL: With respect to any Distribution Date, the
excess, if any, of the Class M-1 Formula Principal Distribution Amount over the
amount in respect of principal actually distributed to the Class M-1
Certificateholders on such Distribution Date.
CLASS M-1 SIMPLE INTEREST DEFICIENCY: With respect to any Distribution
Date, any deficiency in the Class M-1 Interest Distribution Amount resulting
from a Net Simple Interest Shortfall.
CLASS M-1 SIMPLE INTEREST DEFICIENCY AMOUNT: With respect to any
Distribution Date, the aggregate of all amounts distributed to the Class M-1
Certificates in respect of Section 3.19 hereof in respect of Class M-1 Simple
Interest Deficiency.
CLASS M-1 UNPAID INTEREST SHORTFALL: With respect to any Distribution Date,
the amount, if any, by which the aggregate of the Class M-1 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 4.02(a) in respect of prior Class M-1 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) during
the related Accrual Period at the Class M-1 Pass-Through Rate on such amount
with respect to such prior Distribution Dates.
CLASS M-1 UNPAID LIQUIDATION LOSS INTEREST SHORTFALL: With respect to any
Distribution Date, the amount, if any, by which the aggregate unreimbursed Class
M-1 Liquidation Loss Interest
14
Amounts for one or more prior Distributions Dates exceeds the amount previously
distributed to the Class M-1 Certificateholders in respect of Liquidation Loss
Interest Amounts on one or more prior Distribution Dates.
CLASS M-2 ADJUSTED CERTIFICATE BALANCE: With respect to any Distribution
Date, the Class M-2 Certificate Balance as of such Distribution Date minus the
Class M-2 Liquidation Loss Amount as of such Distribution Date, if any.
CLASS M-2 CERTIFICATES: Any one of the Class M-2 Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
B hereto.
CLASS M-2 CERTIFICATE BALANCE: At any time, the Initial Class M-2
Certificate Balance minus the sum of all principal distributions previously made
to the Class M-2 Certificateholders (including distributions in respect of Class
M-2 Liquidation Loss Amounts pursuant to Section 4.02(c)).
CLASS M-2 DISTRIBUTION AMOUNT: With respect to any Distribution Date, the
total amount distributed to the Class M-2 Certificateholders pursuant to Section
4.02.
CLASS M-2 FORMULA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, the Class M-2 Percentage multiplied by the Formula Principal
Distribution Amount. For any Distribution Date, if the Class M-2 Formula
Principal Distribution Amount exceeds the Class M-2 Certificate Balance less the
Unpaid Class M-2 Principal Shortfall with respect to such Class and Distribution
Date, then such amounts shall be allocated to the Class B-1 Formula Principal
Distribution.
CLASS M-2 INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution
Date, an amount equal to the difference between (i) the sum of (a) one month's
interest at the Class M-2 Pass-Through Rate on the Class M-2 Adjusted
Certificate Balance as of such Distribution Date (before giving effect to the
principal distributions on such Distribution Date) and (b) any Class M-2 Unpaid
Interest Shortfall and (ii) the Class M-2 Certificates pro rata share of any
Interest Shortfalls occurring during the immediately preceding Due Period.
CLASS M-2 INTEREST SHORTFALL: With respect to any Distribution Date, any
amount by which the amount distributed to Holders of Class M-2 Certificates on
such Distribution Date is less than the amount computed pursuant to clause (a)
of the definition of "Class M-2 Interest Distribution Amount."
CLASS M-2 LIQUIDATION LOSS AMOUNT: On or after the Distribution Date on
which the Class B-1 Adjusted Certificate Balance has been reduced to zero and on
or before the Distribution Date on which the Class M-2 Adjusted Certificate
Balance has been reduced to zero, the lesser of (i) the amount, if any, by which
the sum of the Class A, Class M-1 and Class M-2 Certificate Balances exceeds the
Pool Scheduled Principal Balance and (ii) the Class M-2 Certificate Balance, in
each case after giving effect to all distributions of principal made on such
Distribution Date.
CLASS M-2 LIQUIDATION LOSS INTEREST AMOUNT: With respect to any
Distribution Date, an amount equal to interest at the Class M-2 Pass-Through
Rate during the related Accrual Period on the Class M-2 Liquidation Loss Amount,
if any, remaining unpaid after the immediately preceding Distribution Date.
15
CLASS M-2 PASS-THROUGH RATE: The lesser of (a) 7.11% per annum and (b) the
Net Funds Cap.
CLASS M-2 PERCENTAGE: With respect to any Distribution Date, (i) if the
Class A Certificate Balance has not been reduced to zero and each of the
Principal Distribution Tests and the Class M-2 Principal Distribution Test have
not been satisfied, zero, and (ii)(a) if the Class A Certificate Balance and the
Class M-1 Certificate Balance have been reduced to zero or (b) if the Principal
Distribution Tests and the Class M-2 Principal Distribution Test have been
satisfied on such Distribution Date: the percentage equivalent of a fraction
(not to exceed one), the numerator of which is the Class M-2 Adjusted
Certificate Balance and the denominator of which is the sum of (i) the Class A
Certificate Balance; (ii) if the Class M-1 Principal Distribution Test is
satisfied on such Distribution Date, the Class M-1 Adjusted Certificate Balance,
otherwise zero; (iii) the Class M-2 Adjusted Certificate Balance; (iv) if the
Class B-1 Principal Distribution Test is satisfied on such Distribution Date,
the Class B-1 Adjusted Certificate Balance, otherwise zero; and (v) if the Class
B-2 Principal Distribution Test is satisfied on such Distribution Date, the sum
of the Class B-2 Adjusted Certificate Balance and the Overcollateralization
Amount, otherwise, zero; in each case determined as of the immediately preceding
Distribution Date (or as of the Closing Date in the case of the first
Distribution Date).
CLASS M-2 PRINCIPAL DISTRIBUTION TEST: A test that will be satisfied on any
Distribution Date if the sum of the Class M-2 Adjusted Certificate Balance,
Class B-1 Adjusted Certificate Balance, Class B-2 Adjusted Certificate Balance
and the Overcollateralization Amount divided by the Pool Scheduled Principal
Balance as of the immediately preceding Distribution Date equals or exceeds 37%.
CLASS M-2 PRINCIPAL SHORTFALL: With respect to any Distribution Date, the
excess, if any, of the Class M-2 Formula Principal Distribution Amount over the
amount in respect of principal actually distributed to the Class M-2
Certificateholders on such Distribution Date.
CLASS M-2 SIMPLE INTEREST DEFICIENCY: With respect to any Distribution
Date, any deficiency in the Class M-2 Interest Distribution Amount resulting
from Net Simple Interest Shortfall.
CLASS M-2 SIMPLE INTEREST DEFICIENCY AMOUNT: With respect to any
Distribution Date, the aggregate of all amounts distributed to the Class M-2
Certificates in respect of Section 3.19 hereof in respect of Class M-2 Simple
Interest Deficiency.
CLASS M-2 UNPAID INTEREST SHORTFALL: With respect to any Distribution Date,
the amount, if any, by which the aggregate of the Class M-2 Interest Shortfalls
for prior Distribution Dates exceeds all prior distributions made pursuant to
Section 4.02(a) in respect of prior Class M-2 Interest Shortfalls, plus accrued
interest thereon (to the extent payment thereof is legally permissible) during
the related Accrual Period at the Class M-2 Pass-Through Rate on such amount
with respect to such prior Distribution Dates.
CLASS M-2 UNPAID LIQUIDATION LOSS INTEREST SHORTFALL: With respect to any
Distribution Date, the amount, if any, by which the aggregate unreimbursed Class
M-2 Liquidation Loss Interest Amounts for one or more prior Distributions Dates
exceeds the amount previously distributed to the Class M-2 Certificateholders in
respect of Liquidation Loss Interest Amounts on one or more prior Distribution
Dates.
16
CLASS R CERTIFICATE: Any one of the Class R-I Certificates or Class R-II
Certificates.
CLASS R INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution
Date, an amount equal to the difference between (i) the sum of (a) interest at
the Class R Pass-Through Rate during the related Accrual Period on the sum of
the Class R-I Certificate Balance and the Class R-II Certificate Balance as of
such Distribution Date (before giving effect to the principal distributions on
such Distribution Date) and (b) any unpaid interest shortfall not paid to the
holders of the Class R Certificates on any previous Distribution Date and (ii)
the Class R Certificates' pro rata share of any Interest Shortfalls occurring
during the immediately preceding Due Period.
CLASS R PASS-THROUGH RATE: With respect to the Class R-I Certificates and
the Class R-II Certificates, a per annum rate equal to the lesser of (i) lesser
of 5.60% and (ii) the Net Funds Cap.
CLASS R-I CERTIFICATE: Any one of the Class R-I Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as EXHIBIT D and evidencing an interest designated as a
"residual interest" in REMIC I for purposes of the REMIC Provisions.
CLASS R-I CERTIFICATE BALANCE: At any time, $50 minus the sum of all
principal distributions previously made to the Class R-I Certificateholders.
CLASS R-II CERTIFICATE: Any one of the Class R-II Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as EXHIBIT D and evidencing an interest designated as a
"residual interest" in REMIC II for purposes of the REMIC Provisions.
CLASS R-II CERTIFICATE BALANCE: At any time, $50 minus the sum of all
principal distributions previously made to the Class R-II Certificateholders.
CLASS SB CERTIFICATE BALANCE: With respect to any date of determination:
(a) $1,095,468.70, plus (b) the principal balance of the REMIC I Regular
Interest SB-IO, as described in the Preliminary Statement hereto, as of such
date of determination, minus (c) all amounts distributed to the Class SB
Certificates pursuant to Section 4.02(c)(xv) hereof on or prior to such date of
determination, minus (d) any Realized Losses that have been applied to reduce
the Overcollateralization Amount on or prior to such date of determination.
CLASS SB CERTIFICATES: Any one of the Class SB Certificates, executed and
authenticated as provided herein, substantially in the form set forth in EXHIBIT
E hereto.
CLOSING DATE: November 21, 2001.
CODE: The Internal Revenue Code of 1986, as the same may be amended from
time to time (or any successor statute thereto).
COLLATERAL: Mortgaged Property and/or Secured Property.
COLLECTION ACCOUNT: The accounts established and maintained by the Servicer
in accordance with Section 3.06.
17
COMPENSATING INTEREST PAYMENT: For any Distribution Date and the Contracts,
the lesser of (a) 0.75% per annum of the aggregate Stated Principal Balance of
the Contracts as of the Due Date in the month of such Distribution Date and (b)
the aggregate Prepayment Interest Shortfall allocable to Payoffs for the
Contracts for the related Due Period.
CONDEMNATION PROCEEDS: All awards, compensation and settlements in respect
of a taking of all or part of any Collateral by exercise of the power of
condemnation or the right of eminent domain.
CONTRACT: (A) Each Manufactured Home retail installment contract (other
than a Land Home Contract) evidencing (i) the Obligor's obligation to pay the
indebtedness evidenced by such Contract and (ii) the security interest in the
related Secured Property or (B) a Land Home Contract.
CONTRACT DOCUMENTS: As defined in section 2.01(b).
CONTRACT POOL: All of the Contracts listed on the Contract Schedule.
CONTRACT RATE: The annual rate, as stated in the Contract or Mortgage Note,
as applicable, at which interest accrues on the unpaid principal balance of the
Contract or Mortgage Note, as applicable.
CONTRACT SCHEDULE: The schedule of Contracts and/or Mortgage Loans annexed
as SCHEDULE I hereto, such schedule setting forth the following information with
respect to each Contract,: (1) the Originator's Contract/Mortgage Loan
identifying number and the applicable Originator; (2) the street address of the
Collateral, as applicable, including the state and zip code; (3) a code
indicating whether the Collateral, as applicable, is owner-occupied; (4) the
original months to maturity; (5) the origination date of the Contract or
Mortgage Loan and the remaining months to maturity from the related Cut-off
Date, based on the original amortization schedule; (6) on a best efforts basis,
the Appraised Value and purchase price of the Collateral, as applicable and the
Loan-to-Value Ratio at origination; (7) the Contract Rate; (8) the date on which
the first Scheduled Payment was due on the Contract; (9) the stated maturity
date; (10) the amount of the Monthly Payment; (11) the last Due Date on which a
Monthly Payment was actually applied to the Stated Principal Balance of the
Contract; (12) the original principal amount of the Contract; (13) the Stated
Principal Balance of the Contract or Mortgage Loan, as applicable, as of the
related Cut-off Date; (14) a code indicating the purpose of the loan (i.e.,
purchase financing, rate/term refinancing); (15) a code indicating the
documentation style; (16) credit grade; (17) on a best efforts basis, the
Obligor's FICO Score; (18) the Due Date of each Contract; (19) whether the
Contract is classified as a high cost loan under Section 32 of the Home
Ownership and Equity Protection Act of 1994 or a high cost loan under North
Carolina Law; (20) a code indicating whether the Contract is a simple interest
Contract; and (21) the number of times during the twelve month period preceding
the related Closing Date that any Monthly Payment has been received thirty or
more days after its Due Date. With respect to the Contracts or the Mortgage
Loans, as applicable, in the aggregate, the Contract Schedule shall set forth
the following information, as of the related Cut-off Date: (1) the number of
Contracts; (2) the current outstanding principal balance of the Contracts; (3)
the weighted average Contract Rate of the Contracts; (4) the weighted average
maturity of the Contracts; and (5) the weighted average FICO Score of the
Contracts.
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CORPORATE TRUST OFFICE: The designated office of the Trustee in the State
of New York at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Institutional Trust Services/Structured Finance
Services - CSFB 2001 MH29.
CUMULATIVE REALIZED LOSSES: With respect to any date of determination, the
cumulative amount of Realized Losses since the Cut-off Date.
CUMULATIVE REALIZED LOSS TEST: With respect to any Distribution Date, the
following:
(i) if such Distribution Date occurs from December 1, 2005 through
November 30, 2006, the Cumulative Realized Loss Test will be satisfied if
Cumulative Realized Losses as of such Distribution Date are less than or
equal to 6.0% of the Cut-Off Date Pool Principal Balance;
(ii) if such Distribution Date occurs from December 1, 2006 through
November 30, 2007, the Cumulative Realized Loss Test will be satisfied if
Cumulative Realized Losses as of such Distribution Date are less than or
equal to 7.0% of the Cut-Off Date Pool Principal Balance;
(iii) if such Distribution Date occurs from December 1, 2007 through
November 30, 2008, the Cumulative Realized Loss Test will be satisfied if
Cumulative Realized Losses as of such Distribution Date are less than or
equal to 9.0% of the Cut-off Date Pool Principal Balance; and
(iv) if such Distribution Date occurs on or after December 1, 2008, the
Cumulative Realized Loss Test will be satisfied if Cumulative Realized Losses
as of such Distribution Date are less than or equal to 11.0% of the Cut-off
Date Pool Principal Balance.
CURRENT REALIZED LOSSES: With respect to any Distribution Date, the
aggregate of the Realized Losses incurred with respect to Contracts during the
Due Period immediately preceding such Distribution Date.
CURRENT REALIZED LOSS RATIO: With respect to the first Distribution Date,
the annualized percentage equivalent of the fraction, the numerator of which is
the Current Realized Losses for the preceding Due Period and the denominator of
which is the Aggregate Contract Balance for such Distribution Date. With respect
to the second Distribution Date, the annualized percentage equivalent of the
fraction, the numerator of which is the Current Realized Losses for the two
preceding Due Periods and the denominator of which is the arithmetic average of
the Aggregate Contract Balances for such Distribution Date and the immediately
preceding Distribution Date. With respect to any Distribution Date thereafter,
the annualized percentage equivalent of the fraction, the numerator of which is
the sum of the Current Realized Losses for the three preceding Due Periods and
the denominator of which is the arithmetic average of the Pool Scheduled
Principal Balances for such Distribution Date and the preceding two Distribution
Dates.
CURTAILMENT: Any payment of principal on a Contract, made by or on behalf
of the related Obligor, other than a Scheduled Payment, a prepaid Scheduled
Payment or a Payoff, which is applied to reduce the outstanding Stated Principal
Balance of the Contract.
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CUSTODIAN: Bank One Trust Company, N.A., a national banking association, or
its successor in interest.
CUSTODIAL AGREEMENT: The Custodial Agreement dated as of the date hereof,
among the Custodian and the Trustee.
CUT-OFF DATE: October 31, 2001.
CUT-OFF DATE POOL PRINCIPAL BALANCE: $108,395,568.70.
CUT-OFF DATE PRINCIPAL BALANCE: With respect to any Contract, the
outstanding principal balance thereof as of the close of business on the Cut-off
Date.
DEFECTIVE CONTRACT: Any Contract which is required to be repurchased
pursuant to Section 2.02 or 2.03.
DEFICIENCY: With respect to any Contract that is a Liquidation Contract,
the amount by which (i) the outstanding principal balance of such Contract, plus
accrued and unpaid interest thereon at the related Contract Rate to the Due Date
for such Contract in the Due Period in which such Contract became a Liquidation
Contract exceeds (ii) the Net Liquidation Proceeds for such Contract.
DEFINITIVE CERTIFICATES: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(f).
DELETED CONTRACT: As defined in Section 2.03(c).
DELINQUENCY RATE: With respect to any Due Period, generally, the fraction,
expressed as a percentage, the numerator of which is the aggregate outstanding
principal balance of all Contracts sixty (60) or more days delinquent (including
all foreclosures, bankruptcies and repossessions) as of the close of business on
the last day of such Due Period, and the denominator of which is the Pool
Scheduled Principal Balance as of the close of business on the last day of such
Due Period; provided that a Contract will not be considered delinquent if a
payment within $65.00 of a Scheduled Payment is received.
DENOMINATION: With respect to each Certificate, the amount set forth on the
face thereof as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face thereof.
DEPOSITOR: Credit Suisse First Boston Mortgage Securities Corp., a Delaware
corporation, or its successor in interest.
DEPOSITORY: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York.
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DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: With respect to any Distribution Date and any Contract,
the Business Day immediately preceding the related Servicer Remittance Date.
DISTRIBUTION DATE: The 25th day of each month or if such day is not a
Business Day, the first Business Day thereafter, in each case commencing in
December 2001.
DISQUALIFIED ORGANIZATION: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, and if not otherwise
included, any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for
Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code, (v) any "electing large partnership," as defined in Section 775(a) of
the Code and (vi) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class R
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
DUE DATE: With respect to each Contract and any Distribution Date, the date
on which Scheduled Payments on such Contract are due, exclusive of any days of
grace.
DUE PERIOD: With respect to any Distribution Date, the calendar month
preceding such Distribution Date.
ELIGIBLE ACCOUNT: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company acceptable to
the Rating Agencies or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided that
any such deposits not so insured shall be maintained in an account at a
depository institution or trust company whose commercial paper or other short
term debt obligations (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the commercial
paper or other short term debt obligations of such holding company) have been
rated by each Rating Agency in its highest short-term rating category, or (iii)
a segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity.
Eligible Accounts may bear interest.
ELIGIBLE INVESTMENTS: Any one or more of the obligations and securities
listed below:
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(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America; or obligations fully guaranteed by,
the United States of America; the FHLMC, FNMA, the Federal Home Loan Banks
or any agency or instrumentality of the United States of America rated Aa3
or higher by Xxxxx'x;
(ii) federal funds, demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository institution
or trust company incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state banking authorities, so long as at the
time of such investment or contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal subsidiary
of a holding company, the commercial paper or other short-term debt
obligations of such holding company) are rated in the highest ratings by
each Rating Agency, and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution
or trust company which is the principal subsidiary of a holding company,
the long-term debt obligations of such holding company) are rated in one of
two of the highest ratings, by each Rating Agency;
(iii) repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered into with
a depository institution or trust company (acting as a principal) the
short-term debt obligations of which are rated A-1 or higher by S&P, rated
A-1 or higher by Fitch, and rated A-2 or higher by Xxxxx'x; provided,
however, that collateral transferred pursuant to such repurchase obligation
must be of the type described in clause (i) above and must (A) be valued
daily at current market price plus accrued interest, (B) pursuant to such
valuation, be equal, at all times, to 105% of the cash transferred by the
Trustee in exchange for such collateral, and (C) be delivered to the
Trustee or, if the Trustee is supplying the collateral, an agent for the
Trustee, in such a manner as to accomplish perfection of a security
interest in the collateral by possession of certificated securities;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any state thereof which has a long-term unsecured debt rating in the
highest available rating category of Xxxxx'x, short-term unsecured debt
rating of A-1 or higher by Fitch and a short-term unsecured debt rating of
A-1 or higher by S&P, at the time of such investment;
(v) commercial paper having an original maturity of less than 365
days and issued by an institution having a short-term unsecured debt rating
in the highest available rating category by each Rating Agency, at the time
of such investment;
(vi) a guaranteed investment contract approved by each of the Rating
Agencies and issued by an insurance company or other corporation having a
long-term unsecured debt rating in the highest available rating category of
Xxxxx'x, short-term unsecured debt rating of A-1 or higher by Fitch and a
short-term unsecured debt rating of A-1 or higher by S&P, at the time of
such investment; and
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(vii) money market funds having ratings in the highest available
rating category of Xxxxx'x and Fitch and either "AAAm" or "AAAm-G" of S&P
at the time of such investment (any such money market funds which provide
for demand withdrawals being conclusively deemed to satisfy any maturity
requirements for Eligible Investments set forth herein) including money
market funds of the Servicer or the Trustee and any such funds that are
managed by the Servicer or the Trustee or their respective Affiliates or
for the Servicer or the Trustee or any Affiliate of either acts as advisor,
as long as such money market funds satisfy the criteria of this
subparagraph (vii);
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-RESTRICTED CERTIFICATE: The Class R Certificates and the Private
Certificates.
ERRORS AND OMISSIONS INSURANCE POLICY: An errors and omissions insurance
policy to be maintained by the Servicer pursuant to Section 3.08.
EVENT OF DEFAULT: As defined in Section 7.01.
EXPENSE FEE: As to each Contract, the sum of the related Servicing Fee,
Trustee Fee and Loss Mitigation Advisor Fee.
EXPENSE FEE RATE: As to each Contract, the sum of the related Servicing Fee
Rate and the Trustee Fee Rate, and the Loss Mitigation Advisor Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: Xxxxxxx Mac, a corporate instrumentality of the United States
created and existing under Title III of the Emergency Home Finance Act of 1970,
as amended, or any successor thereto.
FICO SCORE: With respect to each Contract and Mortgage Loan, the
statistical credit score obtained by the related lender in connection with the
loan application to help assess the related Obligor's creditworthiness.
FINAL RECOVERY DETERMINATION: With respect to any defaulted Contract, a
determination made by the Servicer that all Insurance Proceeds, Liquidation
Proceeds and other payments or recoveries which the Servicer, in its reasonable
good faith, judgment, expects to be finally recoverable in respect thereof have
been so recovered. The Servicer shall maintain records prepared by a servicing
officer of each Final Recovery Determination.
FIDELITY BOND: A fidelity bond to be maintained by the Servicer pursuant to
Section 3.08.
FINAL CERTIFICATION: A certification in the form of EXHIBIT G hereto.
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FINAL SCHEDULED DISTRIBUTION DATE: The Distribution Date in September 2031.
FITCH: Fitch, Inc., or any successor thereto. For purposes of Section 10.05
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other address as Xxxxx'x may hereafter furnish
to the Depositor, the Servicer and the Trustee.
FNMA: Xxxxxx Mae, a federally chartered and privately owned corporation
organized and existing under the Federal National Mortgage Association Charter
Act, or any successor thereto.
FORMULA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date, an amount equal the difference between (a) to the sum of (i) the amounts
set forth under clauses (1), (2), (3) and (4) of Principal Remittance Amount for
such Distribution Date and (ii) the Stated Principal Balance of each Contract
that became a Liquidated Contract during the related Due Period, plus the amount
of any reduction in the outstanding principal balance of a Contract during the
related Due Period ordered as the result of a bankruptcy or similar proceeding
involving the related obligor and (b) the Overcollateralization Release Amount
for such Distribution Date.
GUARANTEE AGREEMENT: That certain June Credit Support Agreement, dated as
of the Closing Date, that has been delivered to the Trustee and the holders of
the Class B-2 Certificates.
GUARANTEE OUTSTANDING AMOUNT: With respect to any Distribution Date,
$10,839,556.87 less the aggregate Guarantee Payment Amounts from all preceding
Distribution Dates.
GUARANTEE PAYMENT AMOUNT: On any Distribution Date prior to the Guarantee
Trigger Date, $0.00. On the Guarantee Trigger Date, the lesser of (i) the
Guarantee Outstanding Amount and (ii) the excess of (A) Cumulative Realized
Losses as of such Distribution Date over (B) $7,587,689.81. On any Distribution
Date after the Guarantee Trigger Date, the lesser of (i) the Guarantee
Outstanding Amount and (ii) Current Realized Losses.
GUARANTEE TRIGGER DATE: The first Distribution Date on which Cumulative
Realized Losses exceed $7,587,689.81.
GUARANTOR: The entity named in the Guarantee Agreement as "Support
Provider" and its successors in interest.
HAZARD INSURANCE POLICY: With respect to each Contract, the policy of fire
and extended coverage insurance (and federal flood insurance, if applicable)
required to be maintained for the related Manufactured Home, as provided in
Section 3.07 (which may be a blanket insurance policy maintained by the Servicer
in accordance with the terms and conditions of Section 3.07).
INDIRECT PARTICIPANT: A broker, dealer, bank or other financial institution
or other Person that clears through or maintains a custodial relationship with a
Depository Participant.
INITIAL CERTIFICATION: A certification in the form of EXHIBIT F hereto.
INITIAL CLASS A CERTIFICATE BALANCE: $83,500,000.
INITIAL CLASS B-1 CERTIFICATE BALANCE: $5,400,000.
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INITIAL CLASS B-2 CERTIFICATE BALANCE: $3,800,000.
INITIAL CLASS M-1 CERTIFICATE BALANCE: $8,100,000.
INITIAL CLASS M-2 CERTIFICATE BALANCE: $6,500,000.
INSURANCE POLICY: With respect to any Contract included in the Trust Fund,
any standard hazard insurance policy, flood insurance policy or title insurance
policy, including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
INSURANCE PROCEEDS With respect to each Contract, proceeds of any insurance
policy insuring the related Secured Property.
INTEREST DISTRIBUTION AMOUNT: The Class A Distribution Amount, the Class
B-1 Interest Distribution Amount, the Class B-2 Interest Distribution Amount,
the Class M-1 Interest Distribution Amount and/or the Class M-2 Interest
Distribution Amount, as applicable.
INTEREST REMITTANCE AMOUNT: For any Distribution Date, an amount equal to
the sum of (1) all interest collected (other than related Payaheads and Net
Simple Interest Excess, if applicable) or advanced in respect of Scheduled
Payments on the Contracts during the related Due Period, the interest portion of
Payaheads previously received and intended for application in the related Due
Period and the interest portion of all Payoffs and Curtailments received on the
Contracts during the related Due Period, less (x) the Servicing Fee and any
insurance premiums not paid by the related Obligor with respect to such
Contracts and (y) unreimbursed Advances and other amounts due to the Servicer or
Trustee with respect to such Contracts, to the extent allocable to interest, (2)
all Compensating Interest Payments paid by the Servicer with respect to the
Contracts with respect to such Distribution Date, (3) the portion of any
Substitution Adjustment Amount or Repurchase Price paid with respect to such
Contracts during the calendar month immediately preceding the Distribution Date
allocable to interest, and (4) all Net Liquidation Proceeds, and any Insurance
Proceeds and other recoveries (net of unreimbursed Advances, Servicing Advances
and expenses, to the extent allocable to interest, and unpaid Servicing Fees)
collected with respect to the Contracts during the prior calendar month, to the
extent allocable to interest.
INTEREST SHORTFALL: For any Distribution Date, an amount equal to the
aggregate shortfall, if any, in collections of interest (adjusted to the related
Net Contract Rate) on Contracts resulting from (a) Prepayment Interest
Shortfalls to the extent not covered by a Compensating Interest Payment and (b)
interest payments on certain of the Contracts being limited pursuant to the
provisions of the Soldiers' and Sailors' Civil Relief Act of 1940. Interest
Shortfalls will be allocated among all of the Certificates in proportion to
their respective amounts of Interest Distribution Amount payable on such
Distribution Date absent such reductions.
LAND HOME CONTRACT: Each Manufactured Home retail installment contract
evidencing (i) the Obligor's obligation to pay the indebtedness evidenced by
such Contract and (ii) the security interest in the related Collateral; and that
is coupled with a Mortgage Loan.
LIQUIDATION CONTRACT: With respect to any Distribution Date, a defaulted
Contract (including any Repossessed Collateral) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has determined (in accordance with this
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Agreement) that it has received all amounts it expects to receive in connection
with the liquidation of such Contract, including the final disposition of the
related Repossessed Collateral (exclusive of any possibility of a deficiency
judgment).
LIQUIDATION PROCEEDS: Cash (including Insurance Proceeds, other than those
applied to the restoration of the related Collateral or released to the related
Obligor in accordance with the normal servicing procedures of the Servicer, and
Condemnation Proceeds) received in connection with the liquidation of defaulted
Contracts, whether through foreclosure, repossession or otherwise.
LOAN-TO-VALUE RATIO OR LTV: With respect to any Contract, the ratio of the
original outstanding principal amount of the Contract, including prepaid finance
charges to (i) with respect to any Contract that is not located in California
and that is not Land Home Contract, the cash selling price of the Collateral
plus the sum of (a) sales tax, (b) freight, (c) prepaid finance charges, (d)
closing fees to third parties and (e) insurance or (ii) with respect to any
Contract located in California or that is Land Home Contract, the sum of the
Appraised Value of the Collateral plus the sum of (a) sales tax, (b) freight,
(c) prepaid finance charges, (d) closing fees to third parties and (e)
insurance.
LOSS MITIGATION ADVISOR: The Murrayhill Company, a Colorado corporation,
and any successor.
LOSS MITIGATION ADVISORY AGREEMENT: The agreement between the Servicer and
the Loss Mitigation Advisor dated as of the Closing Date.
LOSS MITIGATION ADVISOR FEE: The fee payable to the Loss Mitigation Advisor
on each Distribution Date for its services as Loss Mitigation Advisor, in an
amount equal to one-twelfth of the Loss Mitigation Advisor Fee Rate multiplied
by the Stated Principal Balance of the Contracts immediately prior to such
Distribution Date.
LOSS MITIGATION ADVISOR FEE RATE: 0.020% per annum.
LOST MORTGAGE NOTE: Any Mortgage Note the original of which was permanently
lost or destroyed and has not been replaced.
MAJORITY IN INTEREST: With respect to any Class of Regular Certificates,
the Holders of Certificates of such Class evidencing, in the aggregate, at least
51 % of the Percentage Interests evidenced by all Certificates of such Class.
MANUFACTURED HOME: (i) A structure, transportable in one or more sections,
built to National Manufactured Home Construction and Safety Standards, on a
permanent chassis and designed to be used as a single family dwelling with or
without a permanent foundation when connected to the required utilities
including any plumbing, heating, air conditioning and electrical systems present
and installed in the Manufactured Home or (ii) a manufactured home, including
all accessions thereto, that is legally classified as real property under
applicable state law and as set forth on the Contract Schedule.
MONTHLY ADVANCE REIMBURSEMENT AMOUNT: Any amount received or deemed to be
received by the Servicer pursuant to Section 4.01(b) or (c) in reimbursement of
an Advance made out of its own funds.
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MONTHLY EXCESS CASHFLOW: For any Distribution Date, an amount equal to the
sum of the Monthly Excess Interest and Overcollateralization Release Amount, if
any, for such date.
MONTHLY EXCESS INTEREST: With respect to any Distribution Date, the
Interest Remittance Amount remaining after the application of payments pursuant
to clauses (i) through (xiii) of Section 4.02(a) and the Formula Principal
Distribution Amount remaining after the application of payments pursuant to
clauses (i) through (v) of Section 4.02(b).
MONTHLY STATEMENT: The statement delivered to the Certificateholders
pursuant to Section 4.04.
MOODY'S: Xxxxx'x Investors Service, Inc., or any successor thereto. For
purposes of Section 10.05 the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Manufactured Housing Monitoring Department, or such other address as Moody's may
hereafter furnish to the Depositor, the Servicer and the Trustee.
MORTGAGE: The mortgage, deed of trust, security deed, deed to secure debt,
extension agreement, assumption of indebtedness or other instrument(s) creating
a first lien on or first priority security title ownership interest in real
property securing a Mortgage Note.
MORTGAGE LOAN: A loan made by the Originator as lender, or its assignor as
lender, evidenced by a Mortgage Note and secured by a Mortgage.
MORTGAGE NOTE: The original executed note or other evidence of indebtedness
evidencing the indebtedness of a Obligor under a Contract.
MORTGAGED PROPERTY: The real property, including improvements and related
interests, securing a Mortgage.
NET CONTRACT RATE: As to each Contract, and at any time, the per annum rate
equal to the Contract Rate less the related Expense Fee Rate.
NET FUNDS CAP: With respect to any Distribution Date, a per annum rate
equal to the weighted average of the Net Contract Rates of the Contracts as of
the first day of the related Due Period.
NET LIQUIDATION PROCEEDS: Liquidation Proceeds, net of (1) unreimbursed,
reasonable out-of-pocket expenses, including fees and expenses of legal counsel,
and (2) unreimbursed Servicing Fees, Servicing Advances and Advances.
NET SIMPLE INTEREST EXCESS: As of any Distribution Date, the excess, if
any, of the aggregate amount of Simple Interest Excess over the amount of Simple
Interest Shortfall.
NET SIMPLE INTEREST SHORTFALL: As of any Distribution Date, the excess, if
any, of the aggregate amount of Simple Interest Shortfall over the amount of
Simple Interest Excess.
NON-UNITED STATES PERSON: Any Person other than a United States Person.
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NONRECOVERABLE ADVANCE: With respect to any Contract, any portion of an
Advance or Servicing Advance previously made or proposed to be made by the
Servicer that, in the good faith judgment of the Servicer, will not be
ultimately recoverable by the Servicer from the related Obligor, related
Liquidation Proceeds or otherwise.
NOTIONAL AMOUNT:. With respect to the Class SB Certificates and any Payment
Date, the aggregate of the principal balances for all Classes of REMIC I Regular
Interests before giving effect to payments to be made and the allocation of
Realized Losses to occur on such Payment Date.
NOTIONAL AMOUNT CERTIFICATES: The Class SB Certificates.
OBLIGOR: The individual buyer or buyers of the Manufactured Home identified
in the Contract or Mortgage, as applicable, and their successors and assigns who
agree to pay the indebtedness identified therein and who granted a security
interest in the Collateral to the Originator and its assignees.
OFFERED CERTIFICATES: All Classes of Certificates other than the Private
Certificates.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of the Board or
the Vice Chairman of the Board or the President or a Vice President or an
Assistant Vice President or the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of a Servicer or any certificate
of any Servicing Officer, and delivered to the Depositor or the Trustee, as the
case may be, as required by this Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may be counsel for
the Depositor or the Servicer, including in-house counsel, reasonably acceptable
to the Trustee; provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (i) in fact be
independent of the Depositor and the Servicer, (ii) not have any material direct
financial interest in the Depositor or the Servicer or in any affiliate of
either, and (iii) not be connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions. The cost of any Opinion of Counsel, except as
otherwise specifically provided herein, shall not be at the expense of the
Trustee.
OPTIONAL TERMINATION DATE: The first Distribution Date on which the Pool
Scheduled Principal Balance is less than ten percent of the Cut-off Date Pool
Principal Balance.
ORIGINATOR: The CIT Group/Sales Financing, Inc., a Delaware corporation, or
The CIT Group/Consumer Finance, Inc. (NY), a New York corporation, as
applicable.
OTS: The Office of Thrift Supervision.
OUTSTANDING: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
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OUTSTANDING AMOUNT ADVANCED: With respect to any Distribution Date, the
aggregate of all Advances made by the Servicer out of its own funds pursuant to
Section 4.01 less the aggregate of all Monthly Advance Reimbursement Amounts
actually received by the Servicer prior to such Distribution Date.
OUTSTANDING CONTRACT: As of any Due Date, a Contract with a Stated
Principal Balance greater than zero which was not the subject of a Payoff prior
to such Due Date and which did not become a Liquidation Contract prior to such
Due Date.
OVERCOLLATERALIZATION AMOUNT: For any Distribution Date, an amount equal to
the amount, if any, by which (x) the Pool Scheduled Principal Balance for such
Distribution Date exceeds (y) the aggregate Certificate Balances of the
Certificates (other than the Class SB Certificates) after giving effect to
payments on such Distribution Date.
OVERCOLLATERALIZATION RELEASE AMOUNT: For any Distribution Date, an amount
equal to the lesser of (x) the related Principal Remittance Amount for such
Distribution Date and (y) the amount, if any, by which (1) the
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the aggregate of the related Principal
Remittance Amount for such date is applied on such date in reduction of the
aggregate Certificate Balances of the Certificates (other than the Class SB
Certificates), exceeds (2) the related Targeted Overcollateralization Amount for
such date.
OWNERSHIP INTEREST: As to any Residual Certificate, any ownership or
security interest in such Certificate including any interest in such Certificate
as the Holder thereof and any other interest therein, whether direct or
indirect, legal or beneficial.
PASS-THROUGH RATE: With respect to each Class of Certificates, other than
the Class SB Certificates, the Class A Pass-Through Rate, the Class M-1
Pass-Through Rate, the Class M-2 Pass-Through Rate, the Class B-1 Pass-Though
Rate and the Class B-2 Pass-Through Rate, as applicable. With respect to the
Class SB Certificates or the Class SB-IO Interest and any Distribution Date, a
rate per annum equal to the percentage equivalent of a fraction, the numerator
of which is the sum of the amounts calculated pursuant to clauses (A) through
(C) below, and the denominator of which is the aggregate principal balance of
the REMIC I Regular Interests. For purposes of calculating the Pass-Through Rate
for the Class SB Certificates, the numerator is equal to the sum of the
following components:
(A) the REMIC I Remittance Rate for REMIC I Regular Interest I-LT1 minus
two (2) times the weighted average of the REMIC I Remittance Rates for REMIC I
Regular Interest I-LT2 and I-LT3 applied to a notional amount equal to the
Uncertificated Balance of I-LT1.
(B) the REMIC I Remittance Rate for REMIC I Regular Interest I-LT2 minus
two (2) times the weighted average of the REMIC I Remittance Rates for REMIC I
Regular Interests I-LT2 and I-LT3 applied to a notional amount equal to the
Uncertificated Balance of I-LT2.
(C) the REMIC I Remittance Rate for REMIC I Regular Interest I-LT4 minus
four (4) times the weighted average of the REMIC I Remittance Rates for REMIC I
Regular Interests I-LT2 and I-LT3 applied to a notional amount equal to the
Uncertificated Balance of I-LT4.
29
PAYAHEAD: Any Scheduled Payment intended by the related Obligor to be
applied in a Due Period subsequent to the Due Period in which such payment was
received.
PAYOFF: Any payment of principal on a Contract equal to the entire
outstanding principal balance of such Contract, if received in advance of the
last scheduled Due Date for such Contract and accompanied by an amount of
interest equal to accrued unpaid interest on the Contract to the date of such
payment-in-full.
PERCENTAGE INTEREST: As to any Certificate, either the percentage set forth
on the face thereof or equal to the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of the same Class.
PERMITTED TRANSFEREE: Any Transferee of a Class R Certificate, other than a
Disqualified Organization or Non-United States Person.
PERSON: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
PHYSICAL CERTIFICATES: The Class B-2, Class R and Class SB Certificates.
POOL SCHEDULED PRINCIPAL BALANCE: With respect to any Distribution Date,
the sum of the Stated Principal Balances of all Contracts at the end of the
related Due Period.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution Date, any
Contract and any Principal Prepayments in Full that occurs during the related
Due Period, the difference between (i) one full month's interest at the
applicable Contract Rate, as reduced by the Servicing Fee Rate, on the
outstanding principal balance of such Contract immediately prior to such
prepayment and (ii) the amount of interest due and actually received from the
related Obligor that accrued during the month immediately preceding such
Distribution Date with respect to such Contract in connection with such
Principal Prepayment in Full, as reduced by the Servicing Fee with respect to
such Contract.
PRINCIPAL DISTRIBUTION TESTS: A test that will be satisfied with respect to
any Distribution Date, if (i) the Distribution Date occurs in or after December
2005, (ii) the Average Sixty-Day Delinquency Ratio is less than or equal to
5.0%, (iii) the Current Realized Loss Ratio is less than or equal to 2.50%, and
(iv) the Cumulative Realized Loss Test is satisfied.
PRINCIPAL PREPAYMENT: Any payment of principal on a Contract which
constitutes a Payoff or Curtailment.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment of the entire
principal balance of a Contract.
PRINCIPAL REMITTANCE AMOUNT: For any Distribution Date, an amount equal to
the sum of (1) all principal collected (other than Payaheads) or advanced in
respect of Scheduled Payments on the Contracts during the related Due Period
(less unreimbursed Advances, Servicing Advances and other amounts due to the
Servicer and the Trustee with respect to such Contracts, to the extent allocable
to principal) and the principal portion of Payaheads previously received and
intended for application in the related Due Period, (2) all Principal
Prepayments on the Contracts received during
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the related Due Period, (3) the outstanding principal balance of each Contract
that was repurchased by the Seller during the calendar month immediately
preceding such Distribution Date, (4) the portion of any Substitution Adjustment
Amount paid with respect to any Deleted Contracts during the calendar month
immediately preceding such Distribution Date allocable to principal, and (5) all
Liquidation Proceeds and other recoveries (net of unreimbursed Advances,
Servicing Advances and other expenses, to the extent allocable to principal)
collected with respect to the Contracts during the prior calendar month, to the
extent allocable to principal.
PRIVATE CERTIFICATES: The Class B-2 Certificates and the Class SB
Certificates.
PURCHASE AND SALE AGREEMENT: That certain purchase and sale agreement dated
as of November 1, 2001, by and between the Seller and the Depositor, relating to
the Contracts and the Guarantee Agreement.
QUALIFIED SUBSTITUTE CONTRACT: A Contract substituted by the Seller for a
Deleted Contract which must, on the date of such substitution, as confirmed in a
Request for Release, substantially in the form as set forth in the Custodial
Agreement have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution (or, in the
case of a substitution of more than one contract for a Deleted Contract, an
aggregate Stated Principal Balance), not in excess of, and not more than 10%
less than the Stated Principal Balance of the Deleted Contract; (ii) be accruing
interest at a rate no lower than and not more than 1% per annum higher than,
that of the Deleted Contract; (iii) have a Loan-to-Value Ratio no higher than
that of the Deleted Contract; (iv) have a remaining term to maturity no greater
than (and not more than one year less than that of) the Deleted Contract; (v)
and (v) comply with each representation and warranty set forth in Section
2.03(b).
RATING AGENCY: Fitch, Moody's, and S&P. If any such organization or a
successor is no longer in existence, "Rating Agency" shall be such nationally
recognized statistical rating organization, or other comparable Person, as is
designated by the Depositor, notice of which designation shall be given to the
Trustee and the Servicer. References herein to a given rating or rating category
of a Rating Agency shall mean such rating category without giving effect to any
modifiers.
RATINGS: As of any date of determination, the ratings, if any, of the
Certificates as assigned by the Rating Agencies.
REALIZED LOSS: With respect to each Liquidation Contract, an amount (not
less than zero or more than the Stated Principal Balance of the Contract) as of
the date of such liquidation, equal to (i) the Stated Principal Balance of the
Liquidation Contract as of the date of such liquidation, plus (ii) interest at
the Net Contract Rate from the related Due Date as to which interest was last
paid or advanced (and not reimbursed) to Certificateholders up to the related
Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidation Contract from
time to time, minus (iii) the Net Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Contract Rate and to principal of the
Liquidation Contract.
RECORD DATE: With respect to each Distribution Date, the last Business Day
of the calendar month preceding such Distribution Date.
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REGULAR CERTIFICATES: All Classes of Certificates other than the Class R
Certificates.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC ADMINISTRATOR: The Trustee.
REMIC I: The segregated pool of assets subject hereto, constituting the
primary trust created hereby and to be administered hereunder, with respect to
which a REMIC election is to be made consisting of (i) such Contracts as from
time to time are subject to this Agreement, together with the Contract Documents
relating thereto, and together with all collections thereon and proceeds
thereof, (ii) any Repossessed Collateral, together with all collections thereon
and proceeds thereof, (iii) the Trustee's rights with respect to the Contracts
under all insurance policies required to be maintained pursuant to this
Agreement and any proceeds thereof and, (iv) the Collection Account (other than
amounts due to the Servicer) and the Certificate Account and such assets that
are deposited therein from time to time and any investments thereof.
REMIC I REGULAR INTEREST: Any of the four separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the preliminary statement hereto. The designations for
the respective REMIC I Regular Interests are set forth in the Preliminary
Statement hereto.
REMIC I REALIZED LOSSES: For any Distribution Date, Realized Losses for the
related Due Period shall be allocated as follows: The interest Realized Losses,
if any, shall be allocated among the classes of REMIC I Regular Interests
pro-rata according to the accrued certificate interest thereon to the extent of
such accrued certificate interest in reduction thereof. Any interest Realized
Losses in excess of the amount allocated pursuant to the preceding sentence
shall be treated as principal Realized Losses and allocated pursuant to the
succeeding sentences. The principal Realized Losses shall be allocated (i)
first, to the Class I-LT2, Class I-LT3 and Class I-LT4 REMIC I Regular Interests
pro-rata according to their respective Principal Reduction Amounts for such
Distribution Date up to the amount thereof, (ii) second, any principal Realized
Losses not allocated to either the Class I-LT2, Class I-LT3 and Class I-LT4
REMIC I Regular Interests pursuant to the proviso of clause (i) shall be
allocated to the Class I-LT1 REMIC I Regular Interest until the principal
balance thereof is reduced to zero, and (iii) third, any remaining principal
Realized Losses shall be allocated among the Class I-LT2, Class I-LT3 and Class
I-LT4 REMIC I Regular Interests pro-rata according to their respective remaining
principal balances.
REMIC I REGULAR INTEREST I-LT1: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LT1 shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
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REMIC I REGULAR INTEREST I-LT2: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LT2 shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
REMIC I REGULAR INTEREST I-LT3: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LT3 shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
REMIC I REGULAR INTEREST I-LT4: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LT4 shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
REMIC I REMITTANCE RATE: The weighted average of Net Contract Rates.
REMIC II: The segregated pool of assets consisting of all of the REMIC I
Regular Interests, with respect to which a separate REMIC election is to be
made.
REMIC II REGULAR INTEREST: Any of the following five certificated
beneficial ownership interests in REMIC II issued hereunder and two
uncertificated REMIC II Regular Interests defined herein, and, hereby,
designated as a "regular interest" in REMIC II: Class A Certificates, Class M-1
Certificates, Class M-2 Certificates, Class -B-1 Certificates, Class B-2
Certificates, REMIC II Regular Interest SB-PO and REMIC II Regular Interest
SB-IO.
REMIC II REGULAR INTEREST SB-IO: A separate non-certificated beneficial
ownership interests in REMIC II issued hereunder and designated as a Regular
Interest in REMIC II. REMIC II Regular Interest SB-IO shall have no entitlement
to principal, and shall be entitled to distributions of interest subject to the
terms and conditions hereof, in aggregate amount equal to the interest
distributable with respect to the Class SB Certificates pursuant to the terms
and conditions hereof.
REMIC II REGULAR INTEREST SB-PO: A separate non-certificated beneficial
ownership interests in REMIC II issued hereunder and designated as a Regular
Interest in REMIC II. REMIC II Regular Interest SB-PO shall have no entitlement
to interest, and shall be entitled to distributions of principal subject to the
terms and conditions hereof, in aggregate amount equal to the initial
Certificate Balance of the Class SB Certificates as set forth in the Preliminary
Statement hereto.
REMIC PROVISIONS: Provisions of the federal income tax law relating to real
estate mortgage investment conduits, which appear at sections 860A through 860G
of Subchapter M of Chapter 1 of
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the Code, and related provisions, and regulations promulgated thereunder, as the
foregoing may be in effect from time to time.
REPOSSESSED COLLATERAL: Collateral acquired by the Trust Fund through
repossession or foreclosure in connection with a defaulted Contract.
REPURCHASE PRICE: With respect to any Contract required to be purchased by
the Seller pursuant to this Agreement or purchased at the option of the Servicer
pursuant to this Agreement, an amount equal to the sum of (i) 100% of the unpaid
principal balance of the Contract on the date of such purchase, and (ii) accrued
and unpaid interest thereon at the applicable Contract Rate (reduced by the
Servicing Fee Rate if the purchaser of the Contract is also the Servicer
thereof) from the date through which interest was last paid by the Obligor to
the Due Date in the month in which the Repurchase Price is to be distributed to
Certificateholders.
REQUEST FOR RELEASE: The Request for Release submitted by the Servicer to
the Custodian substantially in the form of EXHIBIT L.
REQUIRED INSURANCE POLICY: With respect to any Contract, any insurance
policy that is required to be maintained from time to time under this Agreement.
RESIDUAL CERTIFICATES: The Class R Certificates.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, any Assistant Secretary, any Trust
Officer or any other officer or employee of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also to whom, with respect to a particular matter, such matter is referred
because of such officer's or employee's knowledge of and familiarity with the
particular subject and in each case who shall have direct responsibility for the
administration of this Agreement.
S&P: Standard & Poor's Ratings Agency, a division of The XxXxxx-Xxxx
Companies, Inc. For purposes of Section 10.05 the address for notices to S&P
shall be Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other address as S&P may hereafter furnish to the Depositor, the
Servicer and the Trustee.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
SCHEDULED PAYMENT: The scheduled monthly payment on a Contract due on any
Due Date allocable to principal and/or interest on such Contract pursuant to the
terms of the related Mortgage Note.
SECURED PROPERTY: The property securing a Contract, which consists of a
Manufactured Home, not considered real property under applicable state law and
any additional personal property identified in the Contract as collateral
securing payment of the Contract.
SECURITIES ACT: The Securities Act of 1933, as amended.
SELLER: DLJ Mortgage Capital, Inc., a Delaware corporation, and its
successors and assigns.
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SERVICER: The CIT Group/Sales Financing, Inc., a Delaware corporation and
any successors in interest, as applicable.
SERVICER REMITTANCE DATE: With respect to any Contract and Distribution
Date, the 18th calendar day of the month in which such Distribution Date occurs
or the preceding Business Day if such calendar day is not a Business Day.
SERVICER REMITTANCE REPORT: With respect to each Distribution Date, the
servicing information delivered to the Trustee pursuant to Section 4.04(a) which
contains the information required to prepare the Monthly Statement.
SERVICING ADVANCE: All reasonable and customary "out of pocket" costs and
expenses incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost (including reasonable
attorneys' fees and disbursements) of (i) the preservation, restoration and
protection of Collateral, (ii) any enforcement or judicial proceedings,
including foreclosures and any litigation related to a Contract, (iii) the
management and liquidation of any Repossessed Collateral including reasonable
fees paid to any independent contractor in connection therewith, (iv) compliance
with the obligations under Section 3.08 or 3.09 and (v) in connection with the
liquidation of a Contract, expenditures relating to the purchase or maintenance
of a first lien Contract, all of which reasonable and customary out-of-pocket
costs and expenses are reimbursable to the Servicer to the extent provided in
Sections 3.07(a)(ii), (iii), (iv) and (vi).
SERVICING FEE: With respect to each Contract and any Distribution Date, the
fee payable to the Servicer on such Distribution Date for its services as
Servicer hereunder, in an amount equal to one-twelfth of the Servicer Fee Rate
multiplied by the Stated Principal Balance of such Contract as of the first day
of the related Due Period.
SERVICING FEE RATE: With respect to any Contract, 0.75% per annum;
provided, however, that with respect to any successor servicer appointed
pursuant to Section 7.02, the Servicing Fee Rate with respect to any Contract
will be 1.00% or such other rate as agreed to by the parties to this Agreement;
provided that if the Servicing Fee Rate is greater than 1.00%, the Depositor has
received written confirmation from each of the Rating Agencies that such higher
fee will not cause a downgrade or withdrawal of the then current rating on any
Class of Certificates.
SERVICING OFFICER: Any officer of the servicer involved in, or responsible
for, the administration and servicing of the Contracts whose name appears in a
list of servicing officers furnished to the Trustee by the Servicer, as such
list may from time to time be amended.
SIMPLE INTEREST CONTRACT: Any Contract for which the interest due thereon
is calculated based on the actual number of days elapsed between the date on
which interest was last paid through the date on which the most current payment
is received.
SIMPLE INTEREST EXCESS: As of any Distribution Date for each Simple
Interest Qualifying Loan, the excess, if any, of (i) the portion of the monthly
payment received from the Obligor for such Contract allocable to interest with
respect to the related Due Period, over (ii) 30 days' interest on the Stated
Principal Balance of such Contract at the Contract Rate.
SIMPLE INTEREST QUALIFYING LOAN: As of any Determination Date, any Simple
Interest Contract that was neither prepaid in full during the related Due
Period, nor delinquent with respect
35
to a payment that became due during the related Due Period as of the close of
business on the Determination Date following such Due Period.
SIMPLE INTEREST SHORTFALL: As of any Distribution Date, the excess, if any,
of (i) 30 days' interest on the Stated Principal Balance of all Contracts at the
Contract Rate, over (ii) the portion of the monthly payment received from the
Obligor for such Contract allocable to interest with respect to the related Due
Period.
SPECIAL SERVICER: Vesta Servicing, L.P., a Delaware limited partnership,
and its successors and assigns.
SPECIAL SERVICED CONTRACTS: Contracts for which the Special Servicer acts
as Servicer pursuant to Section 3.18.
STARTUP DAY: The Closing Date.
STATED PRINCIPAL BALANCE: With respect to any Contract or related
Repossessed Collateral as of any date of determination, (i) the Cut-off Date
Principal Balance of such Contract, minus (ii) the sum of (a) the principal
portion of the Scheduled Payments due with respect to such Contract or
Repossessed Collateral during each Due Period ending prior to the most recent
Distribution Date which were received or with respect to which an Advance was
made, and (b) all Principal Prepayments with respect to such Contract, and all
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and proceeds
received in respect of Repossessed Collateral, to the extent applied by the
Servicer as recoveries of principal with respect to such Contract or Repossessed
Collateral, in each case which were distributed pursuant to Section 4.02 on any
previous Distribution Date, and (c) any Realized Loss allocated to
Certificateholders with respect thereto for any previous Distribution Date.
SUBORDINATE CERTIFICATES: The Class M-1, Class M-2, Class B-1, Class B-2
Certificates and Class SB Certificates.
SUBSERVICER: Any Subservicer which is subservicing any of the Contracts
pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 3.02.
SUBSERVICING AGREEMENT: An agreement between the Servicer and a Subservicer
for the servicing of the related Contracts.
SUBSTITUTION ADJUSTMENT AMOUNT: As defined in Section 2.03.
TARGETED OVERCOLLATERALIZATION AMOUNT: For any Distribution Date, the
lesser (i) 4.00% of the Cut-off Date Pool Principal Balance plus all amounts
paid in respect of principal to the Class B-2 Certificates under the Guarantee
Agreement and (ii) the aggregate of the Certificate Balances as of such
Distribution Date.
TRANSFER AFFIDAVIT AND AGREEMENT: As defined in Section 5.02(d)(i)(B)
TRANSFEREE: Any Person who is acquiring by transfer any Ownership Interest
in a Certificate.
36
TRANSFEROR: Any Person who is disposing by transfer of any Ownership
Interest in a Certificate.
TRUST: CSFB ABS Trust Series 2001-MH29 established pursuant to this
Agreement.
TRUSTEE: JPMorgan Chase Bank, in its capacity as trustee under this
agreement and assigns in such capacity.
TRUSTEE FEE: With respect to each Contract and any Distribution Date, the
fee payable to the Trustee on such Distribution Date for its services as Trustee
hereunder, in an amount equal to one-twelfth of the Trustee Fee Rate multiplied
by the Stated Principal Balance of such Contract as of the first day of the
related Due Period.
TRUSTEE FEE RATE: 0.0025% per annum.
TRUST FUND: The corpus of the trust created hereunder consisting of (i) the
Contracts and all interest and principal received on or with respect thereto
after the Cut-off Date, other than such amounts which were due on the Contracts
on or before the Cut-off Date; (ii) the Collection Account, the Certificate
Account and all amounts deposited therein pursuant to the applicable provisions
of this Agreement; (iii) property which secured a Contract and which has been
acquired by foreclosure or deed in lieu of foreclosure after the applicable
Cut-off Date; (iv) the Depositor's rights under the Purchase and Sale Agreement;
(v) the Guarantee Agreement and (vi) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing.
UNCERTIFICATED BALANCE: The amount of any REMIC I Regular Interest
outstanding as of any date of determination. As of the Closing Date, the
Uncertificated Balance of each REMIC I Regular Interest shall equal the amount
set forth in the Preliminary Statement hereto as its initial Uncertificated
Balance. On each Distribution Date, the Uncertificated Balance of each REMIC I
Regular Interest shall be reduced by all distributions of principal made on such
REMIC I Regular Interest, as applicable, on such Distribution Date pursuant to
Section 4.02 and, to the extent necessary and appropriate, shall be further
reduced on such Distribution Date by Realized Losses as provided in Section
4.03. The Uncertificated Balance of each REMIC I Regular Interest shall never be
less than zero. With respect to REMIC II Regular Interest SB-PO the initial
amount set forth with respect thereto in the Preliminary Statement as reduced by
distributions deemed made in respect thereof pursuant to Section 4.03.
UNCERTIFICATED INTEREST: With respect to any REMIC I Regular Interest for
any Distribution Date, one month's interest at the REMIC I Remittance Rate
applicable to such REMIC I Regular Interest for such Distribution Date, accrued
on the Uncertificated Balance thereof immediately prior to such Distribution
Date. Uncertificated Interest in respect of any REMIC I Regular Xxxxxxxx X-XX0,
X-XX0, X-XX0 and I-LT4 shall accrue on the basis of a 360-day year consisting of
twelve 30-day months. Uncertificated Interest with respect to each Distribution
Date, as to any REMIC I Regular Interest, shall be reduced by any Interest
Shortfalls. Uncertificated Interest on the REMIC II Regular Interest SB-IO for
each Distribution Date shall equal Accrued Certificate Interest for the Class SB
Certificates. In addition, Uncertificated Interest with respect to each
Distribution Date, as to any REMIC I Regular Interest shall be reduced by
interest portion of Realized Losses allocable to such REMIC I Regular Interest,
if any, pursuant to Section 4.03 hereof.
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UNITED STATES PERSON: (i) A citizen or resident of the United States, (ii)
a corporation, partnership or other entity treated as a corporation or
partnership for United States federal income tax purposes organized in or under
the laws of the United States or any state thereof or the District of Columbia
(unless, in the case of a partnership, Treasury regulations provide otherwise),
provided that, for purposes solely of the restrictions on the transfer of
residual interests, no partnership or other entity treated as a partnership for
United States federal income tax purposes shall be treated as a United States
Person unless all persons that own an interest in such partnership either
directly or indirectly through any chain of entities no one of which is a
corporation for United States federal income tax purposes are required by the
applicable operating agreement to be United States Persons, (iii) an estate the
income of which is includible in gross income for United States tax purposes,
regardless of its source, or (iv) a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States persons have authority to control all substantial
decisions of the trust. Notwithstanding the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as United States persons prior to such date, that elect to
continue to be treated as United States persons will also be a United States
Person.
UNPAID CLASS A PRINCIPAL SHORTFALL: With respect to any Distribution Date,
the amount, if any, by which the aggregate unreimbursed Class A Principal
Shortfalls for one or more prior Distribution Dates exceeds the amount
previously distributed to the Class A Certificateholders in respect of Class A
Principal Shortfalls on one or more prior Distribution Dates.
UNPAID CLASS B-1 PRINCIPAL SHORTFALL: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class B-1 Principal Shortfalls
for one or more prior Distribution Dates exceeds the amount previously
distributed to the Class B-1 Certificateholders in respect of Class B-1
Principal Shortfalls on one or more prior Distribution Dates.
UNPAID CLASS B-2 PRINCIPAL SHORTFALL: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class B-2 Principal Shortfalls
for one or more prior Distribution Dates exceeds the amount previously
distributed to the Class B-2 Certificateholders in respect of Class B-2
Principal Shortfalls on one or more prior Distribution Dates.
UNPAID CLASS M-1 PRINCIPAL SHORTFALL: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class M-1 Principal Shortfalls
for one or more prior Distribution Dates exceeds the amount previously
distributed to the Class M-1 Certificateholders in respect of Class M-1
Principal Shortfalls on one or more prior Distribution Dates.
UNPAID CLASS M-2 PRINCIPAL SHORTFALL: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class M-2 Principal Shortfalls
for one or more prior Distribution Dates exceeds the amount previously
distributed to the Class M-2 Certificateholders in respect of Class M-2
Principal Shortfalls on one or more prior Distribution Dates.
VOTING RIGHTS: The portion of the voting rights of all the Certificates
that is allocated to any Certificate for purposes of the voting provisions of
this Agreement. At all times during the term of this Agreement, 99% of all
Voting Rights shall be allocated among the Class A, Class M-1, Class M-2 and
Class B Certificates. The portion of such 99% Voting Interests shall be
allocated to each of the Class A, Class M-1, Class M-2 and Class B Certificates
based on the fraction, expressed as a percentage, the numerator of which is the
Certificate Balance of such Class then outstanding
38
and the denominator of which is the aggregate Certificate Balances of the Class
A, Class M-1, Class M-2 and Class B Certificates then outstanding. The Class SB
Certificates shall be allocated 1% of the Voting Rights. Voting Rights shall be
allocated among the Certificates within each such Class (other than the Class SB
Certificates, which has only one certificate) in accordance with their
respective Percentage Interests. The Class R Certificates shall have no voting
rights.
SECTION 1.02 INTEREST CALCULATIONS.
Interest on the Certificates shall be calculated during the related Accrual
Period on the basis of a 360-day year consisting of twelve 30-day months. All
dollar amounts calculated hereunder shall be rounded to the nearest xxxxx with
one-half of one xxxxx being rounded down.
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ARTICLE II
CONVEYANCE OF CONTRACTS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 CONVEYANCE OF CONTRACTS.
(a) The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
in trust for the benefit of the Certificateholders, without recourse, all the
right, title and interest of the Depositor in and to (i) each Contract,
including all interest and principal received or receivable on or with respect
to such Contracts after the Cut-off Date; (ii) any insurance policies in respect
of the Contracts; (iii) the Depositor's rights under the Purchase and Sale
Agreement, (iv) the Guarantee Agreement; and (v) all proceeds of any of the
foregoing.
(b) In connection with the transfer and assignment set forth in clause (a)
above, the Depositor has delivered or caused to be delivered to the Custodian
for the benefit of the Certificateholders, the documents and instruments with
respect to each Contract as assigned (collectively, the "Contract Documents"),
with respect to each Contract:
(i) the fully executed original Contract and all modifications thereto,
executed by the Obligor evidencing indebtedness in connection with the
purchase of a Manufactured Home;
(ii) the original Assignment of Contract, in blank. In the event that
the Contract was acquired by the Originator in a merger, the assignment must
be by "[Originator], successor by merger to [name of predecessor]"; and in
the event that the Contract was acquired or originated by the Originator
while doing business under another name, the assignment must be by
"[Originator], formerly known as [previous name]";
(iii) the original of all assumption, extensions and modification
agreements;
(iv) the originals of all intervening assignments of contract; and
(v) either (A) the original title document for the related Manufactured
Home or a duplicate certified by the appropriate governmental authority which
issued the original thereof or the application for such title document or if
the laws of the jurisdiction in which the related Manufactured Home is
located do not provide for the issuance of title documents for manufactured
housing, other evidence of ownership of the related Manufactured Home which
is customarily relied upon in such jurisdiction as evidence of title to a
manufactured housing unit or (B) an original or copy of the UCC-1 Financing
Statements, certified as true and correct by the Originator and all necessary
UCC-3 Continuation Statements with evidence of filing thereon or copies
thereof certified by the Originator to have been sent for filing, and UCC-3
Assignments executed by the Originator in blank, which UCC-3 Assignments
shall be in form and substance acceptable for filing or notation of the
security interest on the title document.
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In addition, with respect to each Land Home Contract, the Contract
Documents shall include the following:
(i) the original Mortgage Note endorsed, "Pay to the order of
, without recourse" and signed in the name of the
---------------------------
Originator by an authorized officer. evidencing a complete chain of title
from the originator to the Originator. In the event that the Mortgage Loan
was acquired by the Originator in a merger, the endorsement must be by
"[Originator], successor by merger to [name of predecessor]"; and in the
event that the Mortgage Loan was acquired or originated by the Originator
while doing business under another name, the endorsement must be by
"[Originator], formerly known as [previous name]";
(ii) except as provided below, the original Mortgage with evidence of
recording thereon. If the Seller cannot deliver or cause to be delivered the
original Mortgage with evidence of recording thereon on or prior to the
related Closing Date because of a delay caused by the public recording office
where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Seller shall deliver or cause to be delivered
to the Custodian a photocopy of such Mortgage together with (A) in the case
of a delay caused by the public recording office, an Officer's Certificate of
the title insurer insuring the Mortgage stating that such Mortgage has been
delivered to the appropriate public recording office for recordation and that
the original recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original
recorded Mortgage will be promptly delivered to the Custodian upon receipt
thereof by the Seller; or (B) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in the case where
a Mortgage is lost after recordation in a public recording office, a copy of
such Mortgage with the recording information thereon certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage. In either case, a copy of the recorded Mortgage with recording
information thereon shall be delivered within 180 days following the
applicable Closing Date;
(iii) the original Assignment of Mortgage, in blank, which assignment
shall be in form and substance acceptable for recording but not recorded. In
the event that the Mortgage Loan was acquired by the Originator in a merger,
the assignment must be by "[Originator], successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Originator while doing business under another name, the
assignment must be by "[Originator], formerly known as [previous name]";
(iv) the original policy of title insurance, except for those Mortgage
Loans originated within 60 days before the related Closing Date, for which
Mortgage Loans the Seller shall have delivered and released to the Custodian
the related binders. In addition, the Seller shall deliver to the Custodian
the original policy of title insurance within 180 days after the related
Closing Date. The policy must be properly endorsed, any necessary notices of
transfer must be forwarded and any other action required to be taken must be
taken in order to fully protect, under the terms of the policy and applicable
law, the Trustee's interest as first mortgagee;
(v) the original of all assumption, extensions and modification
agreements; and
(vi) the originals of all intervening assignments of mortgage with
evidence of recording thereon, or if any such intervening assignment of
mortgage has not been returned from the
41
applicable recording office or has been lost or if such public recording
office retains the original recorded assignment of mortgage, the Seller shall
deliver or cause to be delivered to the Custodian, a photocopy of such
intervening assignment of mortgage together with (A) in the case of a delay
caused by the public recording office, an Officer's Certificate of the title
insurer insuring the Mortgage stating that such intervening assignment of
mortgage has been delivered to the appropriate public recording office for
recordation and that such original recorded intervening assignment of
mortgage or a copy of such intervening assignment of mortgage certified by
the appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Seller; or (B) in the
case of an intervening assignment of mortgage where a public recording office
retains the original recorded intervening assignment of mortgage or in the
case where an intervening assignment of mortgage is lost after recordation in
a public recording office, a copy of such intervening assignment of mortgage
with recording information thereon certified by such public recording office
to be a true and complete copy of the original recorded intervening
assignment of mortgage. In either case, a copy of the recorded intervening
Assignment of Mortgage with recording information thereon shall be delivered
within 180 days following the related Closing Date.
(c) At least 24 hours prior to delivery of the Contracts, the Depositor
will provide or cause to be provided to the Custodian, via electronic
transmission, a list of all the Contracts and their related data fields
including loan ID, Obligor name, property address, interest rate, maturity date,
and original principal balance of each such Contract. This data shall be
delivered to the Custodian in an acceptable format that can be easily uploaded
to the Custodian's system. A hard copy of the Contract Schedule will be
delivered to the Custodian at the time of delivery to the Custodian of such
documents related to the Contracts identified in such Contract Schedule.
SECTION 2.02 ACCEPTANCE BY THE TRUSTEE OF THE CONTRACTS.
(a) Based on the Initial Certification of the Custodian, the Trustee
acknowledges receipt by the Custodian documents identified in the Initial
Certification and declares that the Custodian holds and will cause its agent to
hold such documents and the other documents delivered to the Custodian's
constituting the Contract Documents, and that it holds or will hold or will
cause its agent to hold such other assets as are included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it or the Custodian will
maintain possession of the Contracts in the State of Texas, State of California
or State of Illinois, as directed by the Depositor, unless otherwise permitted
by the Rating Agencies.
The Trustee agrees to deliver on the Closing Date to the Depositor and the
Servicer an Initial Certification from the Custodian. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the Custodian acknowledges that such documents appear regular on
their face and relate to such Contract. Neither the Trustee not the Custodian
shall be under any duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the same
are genuine, enforceable, recordable or appropriate for the represented purpose
or that they have actually been recorded in the real estate records or that they
are other than what they purport to be on their face.
42
Not later than 90 days after the Closing Date, upon receipt of a Final
Certification from the Custodian provided in the Custodial Agreement, the
Trustee shall deliver to the Depositor, the Seller and the Servicer such Final
Certification, with any applicable exceptions noted thereon.
If, in the course of such review, the Trustee is notified by the Custodian
that any document constituting a part of a Contract Document which does not meet
the requirements of Section 2.01, the Trustee shall cause the Custodian to list
such as an exception in the Final Certification; provided, however, that neither
the Trustee nor the Custodian shall make any determination as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the party
so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to which
the assignment relates.
The Seller shall promptly correct or cure such defect within 90 days from
the date it is so notified of such defect and, if the Seller does not correct or
cure such defect within such period, the Seller shall either (i) substitute for
the related Contract a Qualified Substitute Contract, which substitution shall
be accomplished in the manner and subject to the conditions set forth in Section
2.03, or (ii) purchase such Contract from the Trustee within 90 days from the
date the Seller was notified of such defect in writing at the Repurchase Price
of such Contract; provided, however, that if the cure, substitution or
repurchase of a Contract pursuant to this provision is required by reason of a
delay in delivery of any documents by the appropriate recording office, then the
Seller shall be given 720 days from the Closing Date to cure such defect or
substitute for, or repurchase such Contract; and further provided, that the
Seller shall have no liability for recording any Assignment of Mortgage in favor
of the Trustee or for the Servicer's failure to record such Assignment of
Mortgage, and the Seller shall not be obligated to repurchase or cure any
Contract as to which such Assignment of Mortgage is not recorded. The Trustee
shall deliver written notice to each Rating Agency within 270 days from the
Closing Date indicating each Mortgage (a) which has not been returned by the
appropriate recording office or (b) as to which there is a dispute as to
location or status of such Mortgage. Such notice shall be delivered every 90
days thereafter until the related Mortgage is returned to the Custodian. Any
such substitution effected more than 90 days after the Closing Date shall not be
effected prior to the delivery to the Trustee of the Opinion of Counsel required
by Section 2.05 hereof and any substitution shall not be effected prior to the
additional delivery to the or the Custodian, of a Request for Release and the
Contract Document for any such Qualified Substitute Contract. The Repurchase
Price for any such Contract shall be deposited by the Seller in the applicable
Collection Account on or prior to the Business Day immediately preceding such
Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form of
EXHIBIT L hereto, the Custodian, shall release the related Contract Document to
the Seller and shall execute and deliver at such entity's request such
instruments of transfer or assignment prepared by such entity, in each case
without recourse, representation and warranty or as shall be necessary to vest
in such entity, or a designee, the Trustee's interest in any Contract released
pursuant hereto.
(b) It is understood and agreed that the obligation of the Seller to cure,
substitute for or to repurchase any Contract which does not meet the
requirements of Section 2.01 shall constitute the sole remedy respecting such
defect available to the Trustee, the Depositor and any Certificateholder against
the Seller.
43
(c) All of the Contract Documents are being held pursuant to the Custodial
Agreement. Notwithstanding anything to the contrary contained herein, the
parties hereto acknowledge that the functions of the Trustee with respect to the
custody, acceptance, inspection and release of the Contract Documents pursuant
to Sections 2.01, 2.02, 2.05, 3.09 and 3.10 shall be performed by the Custodian.
At the expense of the Servicer, the Trustee, from time to time, shall instruct
or cause the instruction of the Custodian to deliver the Contract Documents to
the Servicer for completion and recordation of the Assignments of Mortgage.
SECTION 2.03 REPRESENTATIONS AND WARRANTIES OF THE SELLER, THE
DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER.
(a) The Seller represents and warrants to the Depositor, the Servicer, the
Special Servicer and the Trustee that as of the Closing Date:
(i) ORGANIZATION AND GOOD STANDING; LICENSING. The Seller is a
company duly organized, validly existing and in good standing under the
laws of the jurisdiction of its formation and has all licenses necessary to
carry out its business as now being conducted, and is licensed and
qualified to transact business in and is in good standing under the laws of
its state of jurisdiction;
(ii) POWER, AUTHORITY AND BINDING OBLIGATIONS. The Seller has the
power and authority to make, execute, deliver and perform this Agreement
and all of the transactions contemplated under the Agreement, and has taken
all necessary action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of the Seller
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and by the availability of
equitable remedies;
(iii) NO CONFLICTS. Neither the execution and delivery of this
Agreement, nor the consummation OF the transactions herein contemplated
hereby, nor compliance with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on the Servicer or its properties or the certificate of
incorporation or by-laws of the Seller, except those conflicts, breaches or
defaults which would not reasonably be expected to have a material adverse
effect on the Seller's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) NO CONSENT. The execution, delivery and performance by the Seller
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made and conveyance of the related
Contracts by the Seller are not subject to bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction;
(v) ENFORCEABILITY. This Agreement has been duly executed and
delivered by the Seller and, assuming due authorization, execution and
delivery by the Trustee, the Servicer, the
44
Special Servicer and the Depositor, constitutes a valid and binding
obligation of the Seller enforceable against it in accordance with its
terms (subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally);
(vi) NO LITIGATION. There are no actions, litigation, suits or
proceedings pending or threatened against the Seller before or by any
court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement, (ii) on
the sale of the Contracts, or (iii) with respect to any other matter which
in the judgment of the Seller if determined adversely to the Seller would
reasonably be expected to materially and adversely affect such Seller's
ability to perform its obligations under this Agreement; and the Seller is
not in default with respect to any order of any court, administrative
agency, arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement;
(vii) DELIVERY OF CONTRACTS. Each Contract, each Assignment of
Contract or Assignment of Mortgage, as applicable, and any other documents
required pursuant to this Agreement to be delivered to the Depositor or its
designee, or its assignee for each Contract will be, on or before the
Closing Date, delivered by the Seller to the Depositor or its designee, or
its assignee, except as permitted by Section 2.01;
(viii) SOLVENT. The Seller does not believe, nor does it have any
cause or reason to believe, that it cannot perform each and every covenant
contained in this Agreement. The Seller is solvent and the sale of the
Contracts by it will not cause the Seller to become insolvent. The sale of
the Contracts by the Seller is not undertaken with the intent to hinder,
delay or defraud any of the Seller's creditors; and
(b) The Servicer represents and warrants to the Depositor, the Seller, the
Special Servicer and the Trustee that as of the Closing Date:
(i) ORGANIZATION AND GOOD STANDING; LICENSING: The Servicer is a
company duly organized, validly existing and in good standing under the
laws of the jurisdiction of its formation and has all licenses necessary to
carry out its business as now being conducted, and is licensed and
qualified to transact business in and is in good standing under the laws of
each state in which any Contract or Collateral serviced by it is located or
is otherwise exempt under applicable law from such licensing or
qualification or is otherwise not required under applicable law to effect
such licensing or qualification and no demand for such licensing or
qualification has been made upon the Servicer by any such state, and in any
event the Servicer is in compliance with the laws of any such state to the
extent necessary to ensure the enforceability of the servicing of the
Contracts in accordance with the terms of this Agreement;
(ii) POWER AND AUTHORITY: The Servicer has the power and authority to
make, execute, deliver and perform this Agreement and all of the
transactions contemplated under the Agreement, and has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Servicer enforceable in
accordance with its terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency or similar laws
45
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(iii) NO CONFLICTS. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein contemplated
hereby, nor compliance with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on the Servicer or its properties or the certificate of
incorporation or by-laws of the Servicer, except those conflicts, breaches
or defaults which would not reasonably be expected to have a material
adverse effect on the Servicer's ability to enter into this Agreement and
to consummate the transactions contemplated hereby;
(iv) NO CONSENTS. The execution, delivery and performance by the
Servicer of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving
of notice to, the registration with, or the taking of any other action in
respect of, any state, federal or other governmental authority or agency,
except those consents, approvals, notices, registrations or other actions
as have already been obtained, given or made or those consents, approvals,
notices, registrations or other actions which would not reasonably be
expected to have a material adverse effect on the Servicer's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(v) NO LITIGATION. There are no actions, litigation, suits or
proceedings pending or threatened against the Servicer before or by any
court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement, (ii) on
the sale of the Contracts, or (iii) with respect to any other matter which
in the judgment of the Servicer if determined adversely to the Servicer
would reasonably be expected to materially and adversely affect the
Servicer's ability to perform its obligations under this Agreement; and the
Servicer is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to materially
and adversely affect the transactions contemplated by this Agreement;
(vi) COLLECTION AND SERVICING Practices. The collection and servicing
practices used by the Servicer with respect to each Contract have been
legal and in accordance with applicable laws and regulations and the terms
of the Contracts, and in all material respects proper and prudent in the
manufactured housing origination and servicing business;
(vii) ABILITY TO PERFORM. The Servicer does not believe, nor does it
have any cause or reason to believe, that it cannot perform each and every
covenant contained in this Agreement;
(viii) NO MISSTATEMENTS. No statement, tape, diskette, form, report or
other document prepared by, or on behalf of, the Servicer pursuant to this
Agreement or in connection with the transactions contemplated hereby,
contains or will contain any statement that is or will be inaccurate or
misleading in any material respect; and
(ix) REASONABLE COMPENSATION. The Servicer acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing
such services and that the
46
entire Servicing Fee shall be treated by the Servicer, for accounting and
tax purposes, as compensation for the servicing and administration of the
Contracts pursuant to this Agreement.
(c) The Special Servicer represents and warrants to the Depositor, the
Servicer, the Seller and the Trustee that as of the Closing Date:
(i) ORGANIZATION AND GOOD STANDING; LICENSING. The Special Servicer
is a limited partnership, duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation and has all
licenses necessary to carry out its business as now being conducted, and is
licensed and qualified to transact business in and is in good standing
under the laws of each state in which any Contract serviced by it is
located or is otherwise exempt under applicable law from such licensing or
qualification or is otherwise not required under applicable law to effect
such licensing or qualification and no demand for such licensing or
qualification has been made upon the Special Servicer by any such state,
and in any event the Special Servicer is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the
servicing of the Contracts in accordance with the terms of this Agreement;
(ii) POWER, AUTHORITY AND BINDING OBLIGATIONS. The Special Servicer
has the power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated under the Agreement, and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of the Special
Servicer enforceable in accordance with its terms, except as enforcement of
such terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(iii) NO CONFLICTS. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein contemplated
hereby, nor compliance with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on the Special Servicer or its properties or the certificate of
limited partnership or agreement of limited partnership of the Special
Servicer, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the Special
Servicer's ability to enter into this Agreement and to consummate the
transactions contemplated hereby
(iv) NO CONSENTS. The execution, delivery and performance by the
Special Servicer of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving
of notice to, the registration with, or the taking of any other action in
respect of, any state, federal or other governmental authority or agency,
except those consents, approvals, notices, registrations or other actions
as have already been obtained, given or made;
(v) NO LITIGATION. There are no actions, litigation, suits or
proceedings pending or threatened against the Special Servicer before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
or (ii) with respect to any other matter which in the judgment of the
Special Servicer if determined adversely to the Seller would reasonably be
expected to materially and
47
adversely affect the Special Servicer's ability to perform its obligations
under this Agreement; and the Special Servicer is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement; and
(vi) ABILITY TO PERFORM. The Special Servicer does not believe, nor
does it have any cause or reason to believe, that it cannot perform each
and every covenant contained in this Agreement.
(d) The Seller represents and warrants to the Depositor, the Servicer, the
Special Servicer and the Trustee that as of the Closing Date (or such other date
as specified herein):
(i) SOLE OWNER. The Seller or its affiliate is the sole owner of
record and holder of the Contract and the indebtedness evidenced by the
Contract. Immediately prior to the transfer and assignment to the Depositor
on the Closing Date, the Contract was not subject to an assignment or
pledge, and the Seller had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell the Contract to the
Depositor 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 Contract and following the sale of the Contract, the
Depositor will own such Contract free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest;
(ii) COMPLIANCE WITH LAWS. 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 Contract have been
complied with in all material respects;
(iii) NO WAIVERS. The terms of the Contract have not been impaired,
waived, altered or modified in any respect, except by written instruments
which have been recorded to the extent any such recordation is required by
law, or, necessary to protect the interest of the Depositor. No instrument
of waiver, alteration or modification has been executed, and no Obligor 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 Contract Documents and the terms of which are reflected in the
Contract Schedule; the substance of any such waiver, alteration or
modification has been approved by the issuer of any related Primary
Insurance Policy and title insurance policy, to the extent required by the
related policies;
(iv) UNDERWRITING STANDARDS. The Contract complies with all the terms,
conditions and requirements of the related Originator's underwriting
standards in effect at the time of origination of such Contract;
(v) CONTRACT SCHEDULE. The information set forth in the Contract
Schedule is complete, true and correct in all material respects as of the
Cut-off Date;
(vi) VALID SECURITY INTEREST. Each Contract, other than any Land Home
Contract, creates a valid, subsisting and enforceable (except as may be
limited by laws affecting creditors' rights generally) first-priority
security interest in favor of the Seller as secured lender, or agent
48
thereof, in the Manufactured Home covered thereby; such security interest
has been assigned by the Seller to the Depositor in accordance with the
terms of the Purchase and Sale Agreement. Each Mortgage is a valid first
lien in favor of the Originator on the real property securing the amount
owed by the Obligor under the related Land Home Contract subject only to
(a) the lien of current real property taxes and assessments, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording of such Mortgage, such exceptions
appearing of record being acceptable to mortgage lending institutions
generally in the area wherein the property subject to the Mortgage is
located or specifically reflected in the appraisal obtained in connection
with the origination of the related Land Home Contract and (c) 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 such Mortgage. The Seller has assigned all of its right, title
and interest in such Land Home Contract and related Mortgage, including the
security interest in the Manufactured Home covered thereby, to the
Depositor. The Depositor has a valid and perfected and enforceable (except
as may be limited by laws affecting creditors' rights generally and by
general principles of equity) first priority security interest in such Land
Home Contract;
(vii) MECHANICS' LIENS. 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 Collateral which are or may be liens prior to or equal to the lien
of the related Contract;
(viii) UNPAID TAXES. 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;
(ix) NO DEFENSES. The Contract is 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 Contract, or the exercise of any right thereunder, render the
Contract 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;
(x) NO DAMAGE. The Mortgaged Property is not subject to any material
damage by waste, fire, earthquake, windstorm, flood or other casualty. At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property;
(xi) IMPROVEMENTS. All improvements subject to any 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 related Mortgaged Property except those which are insured against by a
title insurance policy and all improvements on the property comply with all
applicable zoning and subdivision laws and ordinances;
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(xii) RECORDATION. With respect to each Land Home Contract, the Seller
has delivered or caused to be delivered to the Trustee or the Custodian on
behalf of the Trustee the original Mortgage bearing evidence that such
instruments have been recorded in the appropriate jurisdiction where the
Mortgaged Property is located as determined by the Seller (or, in lieu of
the original of the Mortgage or the assignment thereof, a duplicate or
conformed copy of the Mortgage or the instrument of assignment, if any,
together with a certificate of receipt from the Seller or the settlement
agent who handled the closing of the Mortgage Loan, certifying that such
copy or copies represent true and correct copy(ies) of the originals) and
that such original(s) have been or are currently submitted to be recorded
in the appropriate governmental recording office of the jurisdiction where
the Mortgaged Property is located) or a certification or receipt of the
recording authority evidencing the same;
(xiii) INSURANCE. All buildings or other customarily insured
improvements upon the Contract are insured by company authorized to do
business where the Manufactured Home is located. 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. The Contract obligates the
Obligor thereunder to maintain all such insurance at the Obligor's cost and
expense;
(xiv) FEE SIMPLE. With respect to a Land Home Contract, 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;
(xv) DELINQUENCIES. As of the Cut-off Date, (a) no more than 1.15% of
the Contracts are more than 30 days delinquent; (b) no more than 0.14% of
the Contracts are more than 60 days delinquent; and (c) none of the
Contracts are 90 days or more delinquent;
(xvi) ORIGINAL. The Contract is original and genuine and is the legal,
valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the rights of creditors and by general equitable principles;
(xvii) LOAN TO VALUE RATIO. At origination, each Contract had an LTV
equal to or less than 100%. The Contracts are not insured by a primary
mortgage insurance policy;
(xviii) QUALIFIED MORTGAGE FOR REMIC. Each Contract constitutes a
"qualified mortgage" under Section 860G(a)(3)(A) of the Code and Treasury
Regulations Section 1.860G-2(a)(1). The fair market value of the
Manufactured Home securing each Contract was at least 80% of the adjusted
issue price of the Contract at (i) the time the Contract was originated
(determined pursuant to the REMIC Provisions) or (ii) the time the
Contracts is transferred to the Depositor. Each Contract is secured by a
"single family residence" within the meaning of Section 25(e)(10) of the
Code; and
(xix) SECONDARY MORTGAGE MARKET ENHANCEMENT ACT. Each Contract was
originated by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing Act, a
savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or similar institution which is
50
supervised and examined by a federal or state authority. The related
Manufactured Home is a "manufactured home" within the meaning of 00 Xxxxxx
Xxxxxx Code, Section 5402(6), and at the origination of each Contract, the
Originator was approved for insurance by the Secretary of Housing and Urban
Development pursuant to Section 2 of the National Housing Act.
(e) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Contract, the
party discovering such breach shall give prompt notice thereof to the other
parties. The Seller hereby covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a breach of any
representation or warranty made by it pursuant to Section 2.03(b) which
materially and adversely affects the value of the related Contract or the
interests of the Certificateholders, they shall cure such breach in all material
respects, and if such breach is not so cured, shall, (i) if such 90-day period
expires prior to the second anniversary of the Closing Date, remove such
Contract (a "Deleted Contract") from the Trust Fund and substitute in its place
a Qualified Substitute Contract, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Contract or Contracts
from the Trustee at the Repurchase Price in the manner set forth below;
provided, however, that any such substitution pursuant to (i) above shall not be
effected prior to the delivery to the Trustee of the Opinion of Counsel required
by Section 2.05 hereof, if any, and any such substitution pursuant to (i) above
shall not be effected prior to the additional delivery to the Custodian (with a
copy to the Trustee) of a Request for Release and the Contract Document for any
such Qualified Substitute Contract. The Seller shall promptly reimburse the
Trustee for any actual out-of-pocket expenses reasonably incurred by the Trustee
in respect of enforcing the remedies for such breach. With respect to any
representation and warranty described in this Section which are made to the best
of the Seller's knowledge, if it is discovered by either the Depositor, the
Seller or the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value of the
related Contract or the interests of the Certificateholders therein,
notwithstanding the Seller's lack of knowledge with respect to the substance of
such representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
With respect to any Qualified Substitute Contract, the Seller shall
deliver to the Custodian for the benefit of the Certificateholders the documents
and agreements as are required by Section 2.01(b), with the Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. Scheduled
Payments due with respect to Qualified Substitute Contracts in the month of
substitution shall not be part of the Trust Fund and will be retained by the
Seller. For the month of substitution, distributions to Certificateholders will
include the monthly payment due on any Deleted Contract for such month and
thereafter the Seller shall be entitled to retain all amounts received in
respect of such Deleted Contract. The Seller shall amend the related Contract
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Contract and the substitution of the Qualified Substitute Contract
or Loans and the Seller shall deliver the amended Contract Schedule to the
Trustee, Custodian and the Depositor. Upon such substitution, the Qualified
Substitute Contract or Loans shall be subject to the terms of this Agreement in
all respects, and the Seller shall be deemed to have made with respect to such
Qualified Substitute Contract or Loans, as of the date of substitution, the
representations and warranties made pursuant to Section 2.03(b) with respect to
such Contract. Upon any such substitution and the deposit to the applicable
Collection Account of the amount required to be deposited therein in connection
with such substitution as described in the following paragraph, the Trustee
shall or shall cause the Custodian to release the Contract Document held for the
benefit of the Certificateholders relating to
51
such Deleted Contract to the Seller and shall execute and deliver at the
Seller's direction such instruments of transfer or assignment prepared by the
Seller, in each case without recourse, representation or warranty as shall be
necessary to vest title in the Seller, or its designee, the Trustee's interest
in any Deleted Contract substituted for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Qualified
Substitute Contracts for one or more Deleted Contracts, the Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Contracts as of the date of substitution is less than
the aggregate Stated Principal Balance of all such Deleted Contracts (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed
Advances with respect to such Deleted Contracts shall be deposited in the
applicable Collection Account by the Seller on or before the Business Day
immediately preceding the related Servicer Remittance Date in the month
succeeding the calendar month during which the related Contract became required
to be purchased or replaced hereunder.
In the event that the Seller shall have repurchased a Contract, the
Repurchase Price therefor shall be deposited in the related Collection Account
pursuant to Section 3.06 on or before the Business Day immediately preceding the
related Servicer Remittance Date in the month following the month during which
the Seller became obligated hereunder to repurchase or replace such Contract and
upon such deposit of the Repurchase Price and receipt of a Request for Release,
the Trustee shall release or cause the Custodian to release the related Contract
Document held for the benefit of the Certificateholders to such Person, and the
Trustee shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
representation or warranty as shall be necessary to transfer title from the
Trustee. It is understood and agreed that the obligation under this Agreement of
any Person to cure, repurchase or substitute any Contract as to which a breach
has occurred and is continuing shall constitute the sole remedy against such
Persons respecting such breach available to Certificateholders, the Depositor or
the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Contract Documents to the Trustee, or to the
Custodian on the Trustee's behalf, for the benefit of the Certificateholders.
SECTION 2.04 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AS TO THE
CONTRACTS.
The Depositor hereby represents and warrants to the Trustee with respect to
each Contract that, as of the Closing Date, assuming good title has been
conveyed to the Depositor, the Depositor had good title to the Contracts and
Mortgage Notes, and did not encumber the Contracts during its period of
ownership thereof, other than as contemplated by the Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Contract Documents to
the Trustee, or to the Custodian on the Trustee's behalf.
52
SECTION 2.05 DELIVERY OF OPINION OF COUNSEL IN CONNECTION WITH
SUBSTITUTIONS.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 shall be made more than 90 days after the
Closing Date unless the Seller delivers to the Trustee an Opinion of Counsel,
which Opinion of Counsel shall not be at the expense of either the Trustee or
the Trust Fund, addressed to the Trustee, to the effect that such substitution
will not (i) result in the imposition of the tax on "prohibited transactions" on
the Trust Fund or contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively, or (ii) cause any REMIC
hereunder to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
(b) Upon discovery by the Depositor, the Seller, the Servicer, or the
Trustee that any Contract does not constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall
promptly (and in any event within five (5) Business Days of discovery) give
written notice thereof to the other parties. In connection therewith, the
Trustee shall require the Seller, at the Seller's option, to either (i)
substitute, if the conditions in Section 2.03(c) with respect to substitutions
are satisfied, a Qualified Substitute Contract for the affected Contract, or
(ii) repurchase the affected Contract within 90 days of such discovery in the
same manner as it would a Contract for a breach of representation or warranty
made pursuant to Section 2.03. The Trustee shall reconvey to the Seller the
Contract to be released pursuant hereto in the same manner, and on the same
terms and conditions, as it would a Contract repurchased for breach of a
representation or warranty contained in Section 2.03.
SECTION 2.06 EXECUTION AND DELIVERY OF CERTIFICATES.
The Trustee acknowledges receipt by the Custodian on its behalf of the
documents identified in the Initial Certification and, concurrently with such
receipt, has executed and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund
and exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates and to perform the duties set forth in this
Agreement according to its terms.
SECTION 2.07 COVENANTS OF THE SERVICER AND SPECIAL SERVICER.
The Servicer and Special Servicer each hereby covenants to the Depositor
and the Trustee for itself only as follows:
(a) It shall comply in the performance of its obligations under this
Agreement in all material respects; and
(b) no written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any affiliate of the
Depositor or the Trustee and prepared by it pursuant to this Agreement will
contain any untrue statement of a material fact.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 SERVICER TO SERVICE CONTRACTS.
For and on behalf of the Certificateholders, the Servicer shall service and
administer the related Contracts in accordance with the terms of this Agreement
and with Accepted Servicing Practices. Subject to Section 3.02, without limiting
the generality of the foregoing, the Servicer hereby is authorized and
empowered, when the Servicer believes it appropriate in its best judgment, to
execute and deliver, on behalf of the Certificateholders and the Trust Fund 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 Contracts. The Trustee shall furnish the Servicer with any powers
of attorney and other documents necessary or appropriate to enable the Servicer
to service and administer the Contracts and shall be indemnified by the Servicer
for any and all liability, cost and expense incurred by the Trustee in
connection with the Servicer's use or misuse of any power of attorney. The
relationship of the Servicer (and of any successor to the Servicer as Servicer
under this Agreement) to the Trustee under this Agreement is intended by the
parties to be that of an independent contractor and not that of a joint
venturer, partner or agent of the Trustee.
In servicing and administering the Contracts and Mortgage Loans, the
Servicer shall employ procedures including collection procedures and exercise
the same care that it customarily employs and exercises in servicing and
administering similar contracts for its other accounts giving due consideration
to Accepted Servicing Practices of prudent lending institutions.
The Servicer shall forward to the Custodian original documents evidencing
an assumption, modification, consolidation or extension of any Contract entered
into in accordance with the terms of this Agreement within two weeks of their
execution, provided, however, that the Servicer shall provide the Custodian with
a certified true copy of any such document submitted for recordation within two
weeks of its execution, and shall provide the original of any document certified
by the appropriate public recording office to be a true and complete copy of the
original within ninety (90) days of its submission for recordation.
In accordance with the standards of the preceding paragraph, the Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Obligors pursuant to Section 3.06, and further as provided
in Section 3.07. The costs incurred by a Servicer, if any, in effecting the
timely payments of taxes and assessments on the Mortgaged Properties and related
insurance premiums shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the Stated Principal
Balances of the related Contracts, notwithstanding that the terms of such
Contracts so permit.
With respect to the Contracts, the Servicer of such Contracts agrees that,
with respect to the Obligors of such Contracts, the Servicer shall accurately
and fully report its borrower credit files to credit repositories in a timely
manner.
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The Servicer hereby acknowledges that, to the extent the Servicer has
previously serviced some or all of the Contracts pursuant to another servicing
agreement, the provisions contained in this Agreement shall supersede the
provisions contained in such other servicing agreement.
SECTION 3.02 SUBSERVICING; ENFORCEMENT OF THE OBLIGATIONS OF
SUBSERVICERS.
The Servicer shall be entitled to outsource one or more separate servicing
functions to a Person, so long as such outsourcing does not constitute the
delegation of the Servicer's obligation to perform all or substantially all of
the servicing of the related Contracts to such outsourcer. In such event, the
use by the Servicer of any such outsourcer shall not release the Servicer from
any of its obligations hereunder and the Servicer shall remain responsible
hereunder for all acts and omissions of such outsourcer as fully as if such acts
and omissions were those of the Servicer, and the Servicer shall pay all fees
and expenses of the outsourcer from the Servicer's own funds.
SECTION 3.03 RECORDS; INSPECTION.
(a) The Servicer, during the period it is Servicer hereunder, shall
maintain such books of account and other records as will enable the Trustee (if
the Trustee so elects in its discretion) to determine the status of each
Contract. Without limiting the generality of the preceding sentence, the
Servicer shall keep such records in respect of Liquidation Expenses as will
enable the Trustee (if the Trustee so elects in its discretion) to determine
that the correct amount of Net Liquidation Proceeds in respect of a Liquidation
Contract has been deposited in the applicable Certificate Account.
(b) At all times during the term hereof, the Servicer shall afford the
Trustee and its authorized agents reasonable access during normal business hours
to the Servicer's records relating to the Contracts and will cause its personnel
to assist in any examination of such records by the Trustee or any of its
authorized agents. The examination referred to in this Section 3.03 will be
conducted in a manner which does not interfere unreasonably with the Servicer's
normal operations or customer or employee relations. Without otherwise limiting
the scope of the examination which the Trustee may make, the Trustee or its
authorized agents, using generally accepted audit procedures, may in their
discretion verify the status of each Contract and review the records relating
thereto for conformity to Monthly Reports prepared pursuant hereto and
compliance with the standards represented to exist as to each Contract in this
Agreement.
(c) At all times during the term hereof, the Servicer shall keep available
a copy of the Contract Schedule for inspection by Certificateholders.
SECTION 3.04 ENFORCEMENT.
(a) The Servicer, consistent with Section 3.01, shall act with respect to
the Contracts in such manner as will maximize the receipt of principal and
interest on such Contracts.
(b) The Servicer shall xxx to enforce, initiate a replevin action or
collect upon Contracts and, where permitted by applicable law, may, in its sole
judgment, xxx to collect any Deficiency at its own expense, in its own name, if
possible, or as agent for the Trustee in its own name, if possible, or as agent
for the Trust Fund. If the Servicer elects to commence a legal proceeding to
enforce a Contract, the act of commencement shall be deemed to be an automatic
assignment of the Contract to the Servicer for purposes of collection only. If,
however, in any enforcement suit or legal
55
proceeding it is held that the Servicer may not enforce a Contract on the ground
that it is not a real party in interest or a holder entitled to enforce the
Contract, the Trustee shall, at the Servicer's expense, take such steps as the
Servicer deems necessary to enforce the Contract, including bringing suit in its
name or the names of the Certificateholders. If there has been a recovery of
attorneys' fees in favor of the Servicer or the Trust Fund in an action
involving the enforcement of a Contract, the Servicer shall be reimbursed out of
such recovery for its out-of-pocket attorney's fees and expenses incurred in
such enforcement action.
(c) The Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Contract in accordance with the
Servicer's usual practice. In exercising recourse rights, the Servicer is
authorized on the Trustee's behalf to reassign the Contract or to resell the
related Manufactured Home and, if applicable, the Mortgaged Property, to the
Person against whom recourse exists at the price set forth in the document
creating the recourse.
(d) The Servicer may, consistent with its customary servicing procedures
and consistent with Section 3.01, grant to the Obligor on any Contract an
extension of payments due under such Contract, provided that Obligors may not be
solicited for extensions, no such extension may extend beyond the final
scheduled payment date of the Contract with the latest maturity, no more than
one extension of payments under a Contract may be granted in any twelve-month
period and no extension shall be longer than three (3) months; provided,
however, that the Servicer may grant an extension of up to twelve months if
either (A) the Contract is in imminent default or (B) the Servicer delivers an
Opinion of Counsel to the effect that such extension will not affect the status
of any REMIC created hereunder as a REMIC, and in the case of (A) and (B) above,
such extension is reasonably likely to produce a greater recovery with respect
to such Contract than would liquidation. For these purposes, a Contract is in
imminent default if: (A) the Contract is 90 days or more past due; (B) the
Obligor has indicated in writing to the Servicer that such Obligor is unable or
will not continue to make Scheduled Payments pursuant to the terms of the
Contract (except in the case of bankruptcy where contact with the Obligor is not
permitted); and (C) the Servicer has attempted to cure the delinquency without
success.
SECTION 3.05 TRUSTEE TO ACT AS SERVICER.
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of an Event of Default, as defined in
Section 7.01), the Trustee or its successor shall thereupon assume all of the
rights and obligations of the Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Servicer pursuant to
Section 3.08 hereof or any acts or omissions of the related predecessor Servicer
hereunder, (ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions of
Contracts hereunder including, but not limited to, repurchases or substitutions
of Contracts pursuant to Section 2.02 or 2.03 hereof or (iv) deemed to have made
any representations and warranties of the Servicer hereunder). Any such
assumption shall be subject to Section 7.02 hereof.
The Servicer shall, upon request of the Trustee, but at the expense of the
Servicer, deliver to the assuming party all documents and records relating to
each Subservicing Agreement or substitute Subservicing Agreement and the
Contracts then being serviced thereunder and hereunder by the Servicer and an
accounting of amounts collected or held by it and otherwise use its best efforts
to
56
effect the orderly and efficient transfer of the substitute Subservicing
Agreement to the assuming party at the expense of the outgoing Servicer.
SECTION 3.06 COLLECTION OF CONTRACTS; COLLECTION ACCOUNT; CERTIFICATE
ACCOUNT.
(a) Continuously from the date hereof until the principal and interest on
all Contracts have been paid in full or such Contracts have become Liquidation
Contracts, the Servicer shall proceed in accordance with the customary and usual
standards of practice of prudent mortgage loan servicers to collect all payments
due under each of the related Contracts when the same shall become due and
payable to the end that the installments payable by the Obligors will be
sufficient to pay charges related to the Contracts as and when they become due
and payable. Consistent with the foregoing, the Servicer may in its discretion
(i) waive any late payment charge and (ii) extend the due dates for payments due
on a Contract for a period not greater than that permitted by Section 3.01(d);
provided, however, that the Servicer cannot extend the maturity of any such
Contract past the date on which the final payment is due on the latest maturing
Contract as of the Cut-off Date. In the event of any such arrangement, the
Servicer shall make Advances on the related Contract in accordance with the
provisions of Section 4.01 during the scheduled period in accordance with the
amortization schedule of such Contract without modification thereof by reason of
such arrangements. The Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Contract,
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Contract, Mortgage or other instrument
pursuant to which such payment is required is prohibited by applicable law.
(b) The Servicer shall segregate and hold all funds collected and received
pursuant to a Contract separate and apart from any of its own funds and general
assets and shall establish and maintain a Collection Accounts, titled
"Collection Account--JPMorgan Chase Bank, in trust for the Holders of CSFB
Manufactured Housing Pass-Through Certificates, Series 2001-MH29." The
Collection Account shall be an Eligible Account. Any funds deposited in a
Collection Account shall at all times be either invested in Eligible Investments
or shall be fully insured to the full extent permitted under applicable law.
Funds deposited in a Collection Account may be drawn on by the Servicer in
accordance with Section 3.07.
(c) The Servicer shall deposit in the Collection Account promptly as
practicable (not later than the second Business Day) after receipt of:
(i) all payments on account of principal on the related Contracts,
including all Principal Prepayments;
(ii) all payments on account of interest on the related Contracts
adjusted to the per annum rate equal to the Contract Rate reduced by the
Servicing Fee Rate;
(iii) all Net Liquidation Proceeds on the related Contracts;
(iv) all Insurance Proceeds on the related Contracts including amounts
required to be deposited pursuant to Section 3.08 and all Condemnation
Proceeds unless used to directly offset the cost of repairing the related
property;
57
(v) all Advances made by the Servicer pursuant to Section 4.01;
(vi) all Repurchase Prices on the related Contracts;
(vii)with respect to each Principal Prepayment on the related Contracts,
the Prepayment Interest Shortfall, if any, for the Due Period. The aggregate
of such deposits shall be made from the Servicer's own funds, without
reimbursement therefor, up to a maximum amount per month equal to the
Compensating Interest Payment, if any, for the Contracts serviced by that the
Servicer and Distribution Date, which amount shall not exceed the Servicing
Fee payable in respect of the related Due Period;
(viii) any amounts received in connection with the purchase of any
Contract pursuant to Section 2.02(b) and 2.02(c); and
(ix) any other amounts required to be deposited in the Collection
Account pursuant to this Agreement.
Subject to Section 3.07 hereof, the foregoing requirements respecting
deposits into the Collection Account are exclusive. Ancillary Income need not be
deposited by the Servicer into such Collection Account. In addition,
notwithstanding the provisions of this Section 3.06, the Servicer may deduct
from amounts received by it, prior to deposit to the applicable Collection
Account, any portion of any Scheduled Payment representing the Servicing Fee. In
the event that the Servicer shall remit any amount not required to be remitted,
it may at any time withdraw or direct the institution maintaining the related
Collection Account to withdraw such amount from such Collection Account, any
provision herein to the contrary notwithstanding. Such withdrawal or direction
may be accomplished by delivering written notice thereof to the Trustee or such
other institution maintaining such Collection Account which describes the
amounts deposited in error in such Collection Account. The Trustee may
conclusively rely on such notice and shall have no liability in connection with
the withdrawal of such funds at the direction of a Servicer. The Servicer shall
maintain adequate records with respect to all withdrawals made by it pursuant to
this Section. All funds deposited in a Collection Account shall be held in trust
for the Certificateholders until withdrawn in accordance with Section 3.07(a).
(d) On or prior to the Closing Date, the Trustee shall establish and
maintain, on behalf of the Certificateholders, the Certificate Account. The
Trustee shall, promptly upon receipt, deposit in the Certificate Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.07(a)(viii); and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
In the event that the Servicer shall remit to the Trustee any amount not
required to be remitted, it may at any time in writing direct the Trustee to
withdraw such amount from the Certificate Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering
written notice to the Trustee (upon which the Trustee may conclusively rely)
which describes the amounts deposited in error in the Certificate Account. All
funds deposited
58
in the Certificate Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.07(b). In no event shall the Trustee
incur liability for withdrawals from the Certificate Account at the direction of
the Servicer.
(e) Each institution at which the Collection Account is maintained shall
either hold such funds on deposit uninvested or shall invest the funds therein
in Eligible Investments as directed in writing by the Servicer which shall
mature not later than the Servicer Remittance Date. All such Eligible
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gain net of any losses realized from any such
balances or investment of funds on deposit in the Collection Account shall be
for the benefit of the Servicer as servicing compensation and shall be remitted
to it monthly. The amount of any net investment losses in the Collection Account
shall promptly be deposited by the Servicer in such Collection Account. The
Trustee in its fiduciary capacity shall not be liable for the amount of any loss
incurred in respect of any investment or lack of investment of funds held in the
Collection Account made in accordance with this Section 3.06. All funds on
deposit in the Certificate Account shall remain uninvested or may be invested in
by the Trustee, in its sole discretion in Eligible Investments selected by the
Trustee and shall mature not later than the next Distribution Date. All net
income and gain realized from the investment of, and all earnings on, funds
deposited in the Certificate Account shall be for the benefit of the Trustee and
shall be available to be withdrawn pursuant to Section 3.07(b)(i).
(f) The Servicer shall give notice to the Trustee, each Rating Agency and
the Depositor of any proposed change of the location of the related Collection
Account prior to any change thereof. The Trustee shall give notice to the
Servicer, each Rating Agency and the Depositor of any proposed change of the
location of the Certificate Account prior to any change thereof.
SECTION 3.07 PERMITTED WITHDRAWALS FROM THE COLLECTION ACCOUNTS AND
CERTIFICATE ACCOUNT.
(a) The Servicer may from time to time make withdrawals from the related
Collection Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained by
the Servicer) the Servicing Fee and other servicing compensation to which
it is entitled pursuant to Section 3.15, and to pay to the Servicer, as
additional servicing compensation, earnings on or investment income with
respect to funds in or credited to such Collection Account;
(ii) to reimburse the Servicer for unreimbursed Advances made by it,
such right of reimbursement pursuant to this subclause (ii) being limited
to amounts received on the Contract(s) in respect of which any such Advance
was made (including without limitation, late recoveries of payments,
Liquidation Proceeds and Insurance Proceeds to the extent received by the
Servicer);
(iii)to reimburse the Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Servicer for (A) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this clause
(iv) with respect to any Contract being
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limited to amounts received on such Contract which represent late payments
of principal and/or interest (including, without limitation, Liquidation
Proceeds and Insurance Proceeds with respect to such Contract) respecting
which any such advance was made and (B) for unpaid Servicing Fees as
provided in Section 3.09 hereof;
(v) to pay to the purchaser, with respect to each Contract or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02 or 2.03, all amounts received thereon after the date of such
purchase;
(vi) to reimburse the Servicer or the Depositor for expenses incurred
by any of them and reimbursable pursuant to Section 3.08 or 6.03 hereof;
(vii) to withdraw any amount deposited in such Collection Account and
not required to be deposited therein;
(viii) on or prior to 4:00 p.m. New York time on the Servicer
Remittance Date preceding each Distribution Date, to withdraw an amount
equal to the sum of the portion of the Interest Remittance Amount and the
Principal Remittance Amount in such Collection Account applicable to the
Contracts serviced by the Servicer for such Distribution Date and remit
such amount to the Trustee for deposit in the Certificate Account; and
(ix) to clear and terminate such Collection Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
The Servicer shall keep and maintain separate accounting, on a Contract by
Contract basis, for the purpose of justifying any withdrawal from the Collection
Account pursuant to such subclauses (i), (ii), (iv) and (v). Prior to making any
withdrawal from the Collection Account pursuant to subclause (iii), the Servicer
shall deliver to the Trustee a certificate of a Servicing Officer indicating the
amount of any previous Advance determined by the Servicer to be a Nonrecoverable
Advance and identifying the related Contracts(s), and their respective portions
of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Certificate Account for
distributions to Certificateholders in the manner specified in this Agreement.
In addition, the Trustee may from time to time make withdrawals from the
Certificate Account for the following proposes:
(i) to pay to itself any investment income from balances in the
Certificate Account prior to distributions to Certificateholders and to pay
itself for any expenses for which the trustee is entitled to be reimbursed
or indemnified for;
(ii) to withdraw and return to the Servicer for deposit to the
applicable Collection Account any amount deposited in the Certificate
Account and not required to be deposited therein; and
(iii) to clear and terminate the Certificate Account upon termination
of the Agreement pursuant to Section 9.01 hereof.
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SECTION 3.08 MAINTENANCE OF HAZARD INSURANCE, COLLECTIONS UNDER HAZARD
INSURANCE POLICIES CONSENT TO TRANSFERS OF MANUFACTURED
HOMES, ASSUMPTION AGREEMENTS FIDELITY BOND AND ERRORS AND
OMISSIONS INSURANCE.
(a) Except as otherwise provided in subsection (b) of this Section 3.08,
the Servicer shall cause to be maintained with respect to each Contract having a
Stated Principal Balance equal to $2500 or greater one or more Hazard Insurance
Policies which provide, at a minimum, the same coverage as a standard form fire
and extended coverage insurance policy that is customary for manufactured
housing, issued by a company authorized to issue such policies in the state in
which the Manufactured Home is located, and in an amount which is not less than
the maximum insurable value of such Manufactured Home or the principal balance
of the related Contract, whichever is less; PROVIDED that such Hazard Insurance
Policies may provide for customary deductible amounts, and FURTHER PROVIDED that
the amount of coverage provided by each Hazard Insurance Policy shall be
sufficient to avoid the application of any co-insurance clause contained
therein. Each Hazard Insurance Policy caused to be maintained by the Servicer
shall contain a standard loss payee clause in favor of the Servicer and its
successors and assigns. If any Obligor is in default in the payment of premiums
on its Hazard Insurance Policy or Policies, the Servicer shall advance such
premiums out of its own funds (but only to the extent that it deems, in its sole
judgment, that such advances are recoverable), and may add separately such
premium to the Obligor's obligation as provided by the Contract, but may not add
such premium to the remaining principal balance of the Contract for purposes of
this Agreement. If the Obligor does not reimburse the Servicer for payment of
such premiums and the related Contract is liquidated after a default, the
Servicer shall be reimbursed for its payment of such premiums out of the related
Liquidation Proceeds and, if such Liquidation Proceeds original certificates are
insufficient therefor, as a Nonrecoverable Advance.
(b) The Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Manufactured Home pursuant to
subsection (a) of this Section 3.08, and shall, to the extent that the related
Contract does not require the Obligor to maintain a Hazard Insurance Policy with
respect to the related Manufactured Home, maintain one or more blanket insurance
policies covering losses as provided in subsection (a) of this Section 3.08
resulting from the absence or insufficiency of individual Hazard Insurance
Policies. Any such blanket policy shall be substantially in the form that is the
industry standard for blanket insurance policies issued to cover Manufactured
Homes and in the amount sufficient to cover all losses on the Contracts. The
Servicer shall pay, out of its own funds, the premium for such policy on the
basis described therein and shall deposit in the applicable Certificate Account,
on the Business Day next preceding the Determination Date following the Due
Period in which the insurance proceeds from claims in respect of any Contracts
under such blanket policy are or should have been received, the deductible
amount with respect to such claims. The Servicer shall not, however, be required
to deposit any deductible amount with respect to claims under individual Hazard
Insurance Policies maintained pursuant to subsection (a) of this Section 3.08.
(c) If the Servicer shall have repossessed a Manufactured Home on behalf
of the Trustee, the Servicer shall not be required to maintain a Hazard
Insurance Policy with respect to such Manufactured Home.
(d) Any cost incurred by the Servicer in maintaining any of the foregoing
insurance, for the purpose of calculating monthly distributions to
Certificateholders, shall not be added to the
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amount owing under the Contract, notwithstanding that the terms of the Contract
so permit. Except as provided in the final sentence of this paragraph, the
Servicer shall not be entitled to reimbursement from the Seller, the Trustee or
the Certificateholders for such costs. Such costs (other than the cost of the
blanket policy) shall only be recovered out of later payments by the Obligor for
such premiums or, if the related Contract is liquidated after a default, out of
the related Liquidation Proceeds. If Liquidation Proceeds are insufficient to
reimburse the Servicer for any such premiums, the amount of such insufficiency
shall constitute, and be reimbursable to the Servicer as, a Nonrecoverable
Advance.
(e) In connection with its activities as Servicer of the Contracts, the
Servicer agrees to present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Hazard Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary to
permit recovery under any Hazard Insurance Policies or any blanket policies
obtained pursuant to Section 3.08(b) (except that the Servicer shall not be
required to make any advances that the Servicer believes, in its sole judgment,
would become a nonrecoverable advance). Any amounts collected by the Servicer
under any such Hazard Insurance Policies shall be deposited in the Collection
Account pursuant to Section 3.07, except to the extent they are applied to the
restoration of the related Manufactured Home or released to the related Obligor
in accordance with the normal servicing procedures of the Servicer.
(f) In connection with any transfer of ownership of a Manufactured Home
and, if applicable, the related Mortgaged Property, by an Obligor to a Person,
the Servicer shall consent to any such transfer and permit the assumption by
such Person of the Contract related to such Manufactured Home, provided that (i)
such Person, in the judgment of the Servicer, meets the Servicer's underwriting
standards then in effect, (ii) such Person enters into an assumption agreement,
(iii) the Servicer determines that permitting such assumption by such Person
will not materially increase the risk of nonpayment of such Contract and (iv)
such action will not adversely affect or jeopardize any coverage under any
insurance policy required by this Agreement. In the event the Servicer
determines that the conditions of the proviso of the preceding sentence have not
been fulfilled, then the Servicer shall withhold its consent to any such
transfer, but only to the extent permitted under the Contract and applicable law
and governmental regulations and only to the extent that such action will not
adversely affect or jeopardize any coverage under any insurance policy required
by this Agreement. In connection with any such assumption, the rate of interest
borne by, and all other material terms of, the related Contract shall not be
changed.
(g) In any case in which Collateral is to be conveyed to a Person by an
Obligor, and such Person is to enter into an assumption agreement or
modification agreement or supplement to the Contract in accordance with Section
3.08(f) or Section 3.08(d), upon the closing of such conveyance, the Servicer
shall cause the originals of the assumption agreement, the release (if any), or
the modification or supplement to the Contract to be deposited with the Contract
Document or the Land Home Contract Document, as applicable, for such Contract.
Any fee collected by the Servicer for entering into an assumption or
substitution of liability agreement with respect to such Contract will be
retained by the Servicer as additional servicing compensation.
(h) The 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 in any
capacity with regard to the Contracts to handle funds, money, documents and
papers relating to the Contracts. Any such fidelity bond and errors and
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omissions insurance shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons. No provision of this Section 3.08 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be in an amount
as is customary for servicers that service a portfolio of manufactured housing
installment sales contracts of $100 million or more and that are generally
acceptable as servicers to institutional investors. On or before April 1 of
every year, the Servicer shall cause to be delivered to the Trustee a certified
true copy of such fidelity bond and insurance coverage required hereby which
fidelity bond or insurance shall in no event be terminated or materially
modified without 30 days' prior written notice to the Trustee.
SECTION 3.09 REALIZATION UPON DEFAULTED CONTRACTS.
(a) Subject to applicable law, the Servicer shall repossess, foreclose
upon or otherwise comparably convert the ownership of Collateral securing all
Contracts that come into default and which the Servicer believes in its good
faith business judgment will not be brought current. Subject to Section 4.17,
the Servicer shall manage, conserve and protect such Collateral for the purposes
of their prompt disposition and sale, and shall dispose of such Collateral on
such terms and conditions as it deems in the best interests of the
Certificateholders. If the Servicer has actual knowledge that a Mortgaged
Property is affected by hazardous waste, then the Servicer shall not cause the
Trust Fund or the Trustee to acquire title to such Mortgaged Property in a
foreclosure or similar proceeding. For purposes of the preceding sentence, the
Servicer shall not be deemed to have actual knowledge that Collateral is
affected by hazardous waste unless it shall have received written notice that
hazardous waste is present on such property. In connection with such
repossession, foreclosure or other conversion, the Servicer shall take such
action as (i) shall be consistent with Section 3.01, (ii) the Servicer shall
determine consistently with Accepted Servicing Practices to be in the best
interest of the Trustee and Certificateholders, and (iii) is consistent with the
requirements of the insurer under any Required Insurance Policy; provided,
however, that the Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the related Contract after reimbursement
to itself of such expenses and (ii) that such expenses will be recoverable to it
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the related Collection Account). The Servicer shall
be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the Liquidation Proceeds with respect to the related Mortgaged
Property or otherwise pursuant to Section 3.07(a).
(b) The decision of a Servicer to foreclose on a defaulted Contract shall
be subject to a determination by the Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any Repossessed Collateral, net of
reimbursement to the Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of applicable accrued
and unpaid Servicing Fees, and unreimbursed Advances and Servicing Advances,
shall be applied to the payment of principal of and interest on the related
defaulted Contracts (with interest accruing as though such Contracts were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the related Collection Account. To
the extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and
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accrued interest at the related Contract Rate on the related Contract for such
calendar month, such excess shall be considered to be a partial prepayment of
principal of the related Contract.
(c) The proceeds from any liquidation of a Contract, as well as any income
from an Repossessed Collateral, will be applied in the following order of
priority: first, to reimburse the Servicer for any related unreimbursed
Servicing Advances, including insurance premiums; second, to reimburse the
Servicer for any unreimbursed Advances; third, to reimburse the related
Collection Account for any Nonrecoverable Advances (or portions thereof) that
were previously withdrawn by the Servicer pursuant to Section 3.07 that related
to such Contract; fourth, to accrued and unpaid interest (to the extent no
Advance has been made for such amount or any such Advance has been reimbursed)
on the Contract or related Repossessed Collateral, at the per annum rate equal
to the related Contract Rate reduced by the Servicing Fee Rate to the Due Date
occurring in the month in which such amounts are required to be distributed; and
fifth, as a recovery of principal of the Contract.
SECTION 3.10 TRUSTEE TO COOPERATE; RELEASE OF CONTRACT DOCUMENTS.
(a) Upon payment in full of any Contract, the Servicer will notify the
Trustee on the next Distribution Date by a certificate of a Servicing Officer
(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 Certificate Account pursuant to Section 3.06 have been
deposited). The Servicer is authorized to execute an instrument in satisfaction
of such Contract and to do such other acts and execute such other documents as
the Servicer deems necessary to discharge the Obligor thereunder and eliminate
the security interest in the Manufactured Home. The Servicer shall determine
when a Contract has been paid in full. To the extent insufficient payments are
received on a Contract mistakenly determined by the Servicer to be prepaid or
paid in full and satisfied, the shortfall shall be paid by the Servicer out of
its own funds by deposit into the Certificate Account.
(b) From time to time as appropriate for servicing and foreclosure in
connection with any Land Home Contract, the Trustee shall, upon written request
of a Servicing Officer and delivery to the Trustee of a receipt signed by such
Servicing Officer, cause the original Land Home Contract and the related Land
Home Contract Document to be released to the Servicer and shall execute such
documents as the Servicer shall deem necessary to the prosecution of any such
proceedings. The Trustee shall stamp the face of each such Land Home Contract to
be released to the Servicer with a notation that the Land Home Contract has been
assigned to the Trustee.
(c) The Servicer's receipt of a Land Home Contract and/or Land Home
Contract Document shall obligate the Servicer to return the original Land Home
Contract and the related Land Home Contract Document to the Trustee, or any
person acting on behalf of the Trustee, when its need by the Servicer has ceased
unless the Contract shall be paid in full, liquidated, repurchased or replaced
as described in Section 3.05.
(d) Upon request of a Servicing Officer, the Trustee shall, at the expense
of the Servicer, perform such acts as are reasonably requested by the Servicer
(including the execution of documents) and otherwise cooperate with the Servicer
in the enforcement of rights and remedies with respect to Contracts.
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SECTION 3.11 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF A SERVICER
TO BE HELD FOR THE TRUSTEE.
Notwithstanding any other provisions of this Agreement, the Servicer shall
transmit to the Custodian on behalf of the Trustee as required by this Agreement
all documents and instruments in respect of a Contract coming into the
possession of the Servicer from time to time required to be delivered to the
Trustee pursuant to the terms hereof and shall account fully to the Trustee for
any funds received by the Servicer or which otherwise are collected by the
Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Contract. All Contract Documents and funds collected or held by, or under the
control of, the Servicer in respect of any Contracts, whether from the
collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in a Collection Account,
shall be held by the Servicer for and on behalf of the Trustee and shall be and
remain the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. The Servicer also agrees that it shall not create,
incur or subject any Contract Document or any funds that are deposited in the
Collection Account or Certificate, or any funds that otherwise are or may become
due or payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of setoff
against any Contract Document or any funds collected on, or in connection with,
a Contract, except, however, that the Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Servicer under this Agreement.
SECTION 3.12 SERVICING FEE.
As compensation for its services hereunder, the Servicer shall be entitled
to withdraw from the applicable Collection Account in accordance with Section
3.07(a) or to retain from interest payments on the related Contracts the amount
of the Servicing Fee for each Contract.
Additional servicing compensation in the form of Ancillary Income shall be
retained by the Servicer. The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder (including
the payment of any expenses incurred in connection with any Subservicing
Agreement entered into pursuant to Section 3.02 and the payment of any premiums
for hazard insurance and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement thereof
except as specifically provided for in this Agreement.
SECTION 3.13 ACCESS TO CERTAIN DOCUMENTATION.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Subordinate Certificates and the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the related Contracts
required by applicable regulations of the OTS and the FDIC. Such access shall be
afforded without charge, but only upon reasonable and prior written request and
during normal business hours at the offices designated by the Servicer. Nothing
in this Section shall limit the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of the Servicer to provide access as provided in this Section as a
result of such obligation shall not constitute a breach of this Section.
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SECTION 3.14 ANNUAL STATEMENT AS TO COMPLIANCE.
On or before April 1 of each calendar year, the Servicer shall deliver to
the Depositor, the Rating Agencies and the Trustee, commencing in 2002, an
Officer's Certificate stating, as to the signer thereof, that (i) a review of
the activities of the Servicer during the preceding calendar year and of the
performance of the Servicer under this Agreement has been made under such
officer's supervision, and (ii) to the best of such officer's knowledge, based
on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the action being taken by the
Servicer to cure such default.
SECTION 3.15 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
STATEMENT; FINANCIAL STATEMENTS.
On or before April 1 of each calendar year, commencing in 2002 year, the
Servicer, at its expense, shall cause a nationally or regionally recognized firm
of independent public accountants (who may also render other services to the
Servicer, the Seller or any affiliate thereof) which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Trustee
and the Depositor to the effect that with respect to the Servicer, such firm has
examined certain documents and records relating to the servicing of mortgage
loans which the Servicer is servicing, including the related Contracts, and
that, on the basis of such examination, conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Guide for HUD Approved Title II Approved Mortgagees and Loan Correspondent
Programs, nothing has come to their attention which would indicate that such
servicing has not been conducted in compliance with Accepted Servicing
Practices, except for (a) such exceptions as such firm shall believe to be
immaterial, and (b) such other exceptions as shall be set forth in such
statement. In rendering such statement, such firm may rely, as to matters
relating to direct servicing of mortgage loans by Subservicers, upon comparable
statements for examinations conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Guide for
HUD Approved Title II Approved Mortgagees and Loan Correspondent Programs
(rendered within one year of such statement) of independent public accountants
with respect to the related Subservicer. Copies of such statement shall be
provided by the Trustee to any Certificateholder upon request at the related
Servicer's expense, provided such statement is delivered by the Servicer to the
Trustee.
SECTION 3.16 REMIC COMPLIANCE.
(a) The REMIC Administrator shall make an election to treat the Trust Fund
(other than the Guarantee Agreement and any Guarantee Payment Amounts) as two
REMICs under the Code and, if necessary, under applicable state law. The
Guarantee Agreement and any Guaranty Payment Amounts shall not be considered a
part of either REMIC. The assets of each REMIC are set forth in this Agreement.
Such election shall be made on Form 1066 or other appropriate federal tax or
information return (including Form 8811) or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of the REMIC elections in respect of
the Trust Fund, Certificates and interests to be designated as the "regular
interests" and the sole class of "residual interests" in each REMIC shall be set
forth in Section 10.03. The REMIC Administrator and the Trustee shall not permit
the creation of any
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"interests" (within the meaning of Section 860G of the Code) in each REMIC
elected in respect of the Trust Fund other than the "regular interests" and
"residual interests" so designated.
(b) The Closing Date is hereby designated as the "startup day" (the
"Startup Date") of the Trust Fund within the meaning of Section 860G(a)(9) of
the Code.
(c) The REMIC Administrator shall at all times hold a Class R Certificate
representing a 0.01% Percentage Interest of all Class R Certificates and shall
be designated as "the tax matters person" with respect to each REMIC in the
manner provided under Treasury Regulations section 1.860F-4(d) and temporary
Treasury Regulations section 301.6231(a)(7)-1T. The REMIC Administrator, as tax
matters person, shall (i) act on behalf of each REMIC in relation to any tax
matter or controversy involving the Trust Fund and (ii) represent the Trust Fund
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the REMIC Administrator shall be entitled to reimbursement
therefor out of amounts attributable to the Contracts on deposit in the
Certificate Account provided by Section 3.06 unless such legal expenses and
costs are incurred by reason of the REMIC Administrator's willful misfeasance,
bad faith or gross negligence.
(d) The REMIC Administrator shall prepare or cause to be prepared all of
the tax returns that it determines are required with respect to each REMIC
created hereunder and deliver such tax returns in a timely manner to the Trustee
and the Trustee shall sign and file such tax returns in a timely manner. The
expenses of preparing such returns shall be borne by each REMIC Administrator
without any right of reimbursement therefor. Each REMIC Administrator agrees to
indemnify and hold harmless the Trustee with respect to any tax liability
arising from the Trustee's signing of tax returns that contain errors or
omissions. The Trustee and Servicer shall promptly provide the REMIC
Administrator with such information as the REMIC Administrator may from time to
time reasonably request for the purpose of enabling the REMIC Administrator to
prepare tax returns.
(e) The REMIC Administrator shall provide (i) to any transferor of a Class
R Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee and the Trustee shall forward to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of each REMIC.
(f) The REMIC Administrator shall take such actions and shall cause each
REMIC created hereunder to take such actions as are reasonably within the REMIC
Administrator's or the Servicer's control and the scope of its duties more
specifically set forth herein as shall be necessary or desirable to maintain the
status thereof as a REMIC under the REMIC Provisions (and the Trustee shall
assist the Servicer and the REMIC Administrator, to the extent reasonably
requested by the Servicer and the REMIC Administrator to do so). The REMIC
Administrator and the Servicer shall not knowingly or intentionally take any
action, cause the Trust Fund to take any action or fail to take (or fail to
cause to be taken) any action reasonably within their respective control that,
under the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status
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of each REMIC as a REMIC or (ii) result in the imposition of a tax upon either
REMIC (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860(G)(d) of the Code) (either such event, in the
absence of an Opinion of Counsel or the indemnification referred to in this
sentence, an "Adverse REMIC Event") unless the REMIC Administrator has received
an Opinion of Counsel (at the expense of the party seeking to take such action
or, if such party fails to pay such expense, and the REMIC Administrator
determines that taking such action is in the best interest of the Trust Fund and
the Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the REMIC Administrator, the Seller, the Servicer or the Trustee) to
the effect that the contemplated action will not, with respect to the REMIC
created hereunder, endanger such status or, unless the REMIC Administrator
determines in its sole discretion to indemnify the Trust Fund against the
imposition of such a tax, result in the imposition of such a tax. Wherever in
this Agreement a contemplated action may not be taken because the timing of such
action might result in the imposition of a tax on the Trust Fund, or may only be
taken pursuant to an Opinion of Counsel that such action would not impose a tax
on the Trust Fund, such action may nonetheless be taken provided that the
indemnity given in the preceding sentence with respect to any taxes that might
be imposed on the Trust Fund has been given and that all other preconditions to
the taking of such action have been satisfied. The Trustee shall not take or
fail to take any action (whether or not authorized hereunder) as to which the
REMIC Administrator has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action or inaction. In addition, prior to taking any action with respect to
the REMIC or its assets, or causing the REMIC to take any action, which is not
expressly permitted under the terms of this Agreement, the Trustee will consult
with the REMIC Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect to
each REMIC, and the Trustee shall not take any such action or cause each REMIC
to take any such action as to which the REMIC Administrator has advised it in
writing that an Adverse REMIC Event could occur. The REMIC Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not expressly permitted by this
Agreement, but in no event at the expense of the REMIC Administrator or the
Servicer. At all times as may be required by the Code, the Servicer will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of each REMIC as
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax, including interest, penalties, additional
amounts or additions to tax (a "Tax"), is imposed on the Trust Fund, such Tax
shall be charged against amounts otherwise required to be distributed to the
Holders of the Class R Certificates. The Trustee is hereby authorized to retain
from amounts otherwise required to be distributed to the Holders of the Class R
Certificates sufficient funds to pay or provide for the payment of, and to
actually pay such Tax as is legally owed by the Trust Fund (but such
authorization shall not prevent the Servicer or the REMIC Administrator from
contesting any such Tax in appropriate proceedings, and withholding payment of
such Tax, if permitted by law, pending the outcome of such proceedings). To the
extent that sufficient amounts cannot be so retained to pay or provide for the
payment of any tax imposed on gain realized from any prohibited transaction (as
defined in the REMIC Provisions), the Trustee is hereby authorized to and shall
segregate, into a separate non-interest-bearing account, the net income from
such prohibited transactions and pay such Tax. In the event any (i) amounts
initially retained from amounts required to be distributed to the Holders of the
Class R Certificates and (ii) income so segregated and applied towards the
payment of such Tax shall not be sufficient to pay
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such Tax in its entirety, the amount of the shortfall shall be paid from funds
in the Certificate Account notwithstanding anything to the contrary contained
herein. To the extent any such segregated income or funds from the Certificate
Account are paid to the Internal Revenue Service, the Trustee shall retain, or
cause to be retained, an amount equal to the amount of such income or funds so
paid from future amounts otherwise required to be distributed to the Holders of
the Class R Certificates and shall deposit such retained amounts in the
Certificate Account for distribution to the Holders of the Regular Certificates.
(h) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to either REMIC unless (subject to Section 3.16(f)) the
Trustee shall have received an Opinion of Counsel (at the expense of the party
seeking to make such contributions) to the effect that the inclusion of such
assets in such REMIC will not cause the REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding or subject the REMIC to any tax
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(j) The Trustee shall not (subject to Section 3.16(f)) enter into any
arrangement by which either REMIC will receive a fee or other compensation for
services nor permit such REMIC to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the Certificate
Balance of each Class of Certificates representing a regular interest in each
REMIC would be reduced to zero is the sixth Distribution Date following the
latest scheduled maturity of any Contract.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the REMIC.
(m) Neither the Trustee nor the Servicer shall sell, dispose of or
substitute for any of the Contracts (except in connection with (i) the default,
imminent default or foreclosure of a Contract, including but not limited to, the
acquisition or sale of Collateral acquired by deed in lieu of foreclosure, (ii)
the bankruptcy of the applicable REMIC, (iii) the termination of the REMIC
pursuant to Article IX of this Agreement or (iv) a purchase of Contracts
pursuant to Article II of this Agreement) nor acquire any assets for either
REMIC, nor sell or dispose of any investments in the Certificate Accounts for
gain nor accept any contributions to either REMIC after the Closing Date unless
it has received an Opinion of Counsel that such sale, disposition, substitution
or acquisition will not (a) affect adversely the status of either REMIC as a
REMIC or (b) unless the REMIC Administrator has determined in its sole
discretion to indemnify the Trust Fund against such tax, cause either REMIC to
be subject to a tax on "prohibited transactions" or "contributions" pursuant to
the REMIC Provisions.
(n) Each Holder of a Class R Certificate, by purchasing such Class R
Certificate, agrees to give the REMIC Administrator written notice that it is a
"pass-through interest holder" within the
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meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon becoming the Holder of such Class R Certificate, if it is, or
is holding such Class R Certificate on behalf of, a "pass-through interest
holder."
(o) The Servicer shall sell any Repossessed Collateral within three years
of its acquisition by the Trust Fund, unless (i) at least 60 days before such
three-year period would otherwise expire, the Servicer applies for an extension
of such three-year period pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of
the Code, in which case the Servicer shall sell such Repossessed Collateral
within the applicable extension period or (ii) at the request of the Servicer,
the Trustee seeks, and subsequently receives, an Opinion of Counsel, addressed
to the Trustee and the Servicer, to the effect that the holding by the Trust
Fund of such Repossessed Collateral subsequent to three years after its
acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund as defined in Section 860F of the Code or cause
the Trust Fund to fail to qualify as a REMIC at any time that any Certificates
are outstanding. The Servicer shall manage, conserve, protect and operate each
Repossessed Collateral solely for the purpose of its prompt disposition and sale
in a manner that does not cause any such Repossessed Collateral to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the REMIC of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions. In connection with its efforts to sell such Repossessed Collateral,
the Servicer shall either itself or through an agent selected by the Servicer
protect and conserve such Repossessed Collateral in the same manner and to such
extent as is customary in the locality where such Repossessed Collateral is
located and may, incident to its conservation and protection of the interests of
the Certificateholders, rent the same, or any part thereof, as the Servicer
deems to be in the best interest of the Servicer and the Certificateholders for
the period prior to the sale of such Repossessed Collateral.
SECTION 3.17 DUTIES OF THE LOSS MITIGATION ADVISOR.
The Loss Mitigation Advisor will monitor the performance of and make
recommendations to the applicable servicer regarding certain delinquent and
defaulted Contracts and will report to the Depositor on the performance of such
Contracts. Such reports and recommendations will be based upon information
provided pursuant to the Loss Mitigation Advisory Agreement. The Loss Mitigation
Advisor shall look solely to the Servicer for all information and data
(including loss and delinquency information and data) and loan level information
and data relating to the servicing of the Contracts.
SECTION 3.18 SPECIAL SERVICED CONTRACTS.
If directed by the Special Servicer and solely at the Special Servicer's
option, the Servicer shall transfer the servicing of any Contracts 91 days or
more delinquent to the Special Servicer. The Special Servicer shall thereupon
assume all of the rights and obligations of the Servicer hereunder with respect
to any such Contracts arising thereafter and the Servicer shall have no further
responsibility with respect to such Contract (except that the Special Servicer
shall not be (i) liable for losses of the Servicer pursuant to Section 3.08
hereof or for any acts or omissions of the Servicer hereunder prior to the
servicing transfer date, (ii) obligated to effectuate repurchases or
substitutions of Contract hereunder including, but not limited to, repurchases
or substitutions of Contracts pursuant to Section 2.02 hereof, (iii) obligated
to make any Advance pursuant to Section 4.01(a) with
70
respect to any Contract or make any Compensating Interest Payment, or (iv)
deemed to have made any representations and warranties of such predecessor
Servicer hereunder). Upon the transfer of the servicing of any such Contract to
the Special Servicer, the Special Servicer shall be entitled to the Servicing
Fee and other compensation accruing after the servicing transfer date with
respect to such Contracts pursuant to Section 3.12. In the event that the
Special Servicer shall make any advances with respect to any such Contract, it
shall only do so to the extent that it deems such advance to be recoverable from
the related Contract. Such advance shall be made in the same manner as an
Advance by the Servicer as set forth in Section 4.01 hereof. The Special
Servicer shall be entitled to reimbursement for any such advances in the same
manner as the Servicer is entitled to reimbursement for Advances but the Special
Servicer's right to recovery shall be limited to the Contracts that it services.
In connection with the transfer of the servicing of any Contract to the
Special Servicer, the Servicer shall, at the Special Servicer's expense, deliver
to the Special Servicer all documents and records relating to such Contracts and
an accounting of amounts collected or held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the servicing to the
Special Servicer. On the servicing transfer date, the Special Servicer shall
reimburse the predecessor servicer for all unreimbursed Advances, Servicing
Advances and Servicing Fees relating to the Contracts for which the servicing is
being transferred. In addition, the Special Servicer shall amend the Contract
Schedule to reflect that such Contracts are Special Serviced Contracts. The
Special Servicer shall be entitled to be reimbursed in accordance with Section
3.07 hereof for all such Advances, Servicing Advances and Servicing Fees paid by
the Special Servicer to the predecessor servicer pursuant to this Section 3.18.
The Special Servicer may be replaced as special servicer by holders of the
Class SB Certificates representing a majority of the Percentage Interests.
SECTION 3.19 SIMPLE INTEREST DEFICIENCIES.
(a) On each Determination Date, based on the information provided in the
Servicer Remittance Report the Trustee shall determine if there is a Class M-1
Simple Interest Deficiency, a Class M-2 Simple Interest Deficiency, a Class B-1
Simple Interest Deficiency and/or a Class B-2 Simple Interest Deficiency. On the
Business Day prior to the related Distribution Date, the Trustee shall determine
the total amount of funds in the Certificate Account available to pay such
deficiency on the related Distribution Date. If the total amount of funds in the
Certificate Account is not sufficient to pay the deficiency, the Trustee shall
reflect such deficiency in the reports delivered to Certificateholders pursuant
to Section 4.04.
(b) If the Trustee determines that there is a Class M-1 Simple Interest
Deficiency, a Class M-2 Simple Interest Deficiency, a Class B-1 Simple Interest
Deficiency and/or a Class B-2 Simple Interest Deficiency for the related
Distribution Date, the Trustee shall withdraw from the Certificate Account (to
the extent of funds on deposit therein one Business Day prior to such
Distribution Date, after all required distributions on such Distribution Date)
an amount equal to the Class M-1 Simple Interest Deficiency, the Class M-2
Simple Interest Deficiency, the Class B-1 Simple Interest Deficiency and the
Class B-2 Simple Interest Deficiency (or the amount of such funds in the
Certificate Account, if less) and distribute such amount, first to the Class M-1
Certificateholders, as part of the Class M-1 Interest Distribution Amount, up to
the amount of the Class M-1 Simple Interest Deficiency (or pro rata, if such
funds are less than the Class M-1 Simple
71
Interest Deficiency), if any, then to the Class M-2 Certificateholders, as part
of the Class M-2 Interest Distribution Amount, up to the amount of the Class M-2
Simple Interest Deficiency (or pro rata, if such funds are less than the Class
M-2 Simple Interest Deficiency), if any, then to the Class B-1
Certificateholders, as part of the Class B-1 Interest Distribution Amount, up to
the amount of the Class B-1 Simple Interest Deficiency (or pro rata, if such
remaining funds are less than the Class B-1 Simple Interest Deficiency) and then
to the Class B-2 Certificateholders, as part of the Class B-2 Interest
Distribution Amount, up to the amount of the Class B-2 Simple Interest
Deficiency (or pro rata, if such remaining funds are less than the Class B-2
Simple Interest Deficiency); provided, however, that (i) no such withdrawal
shall be made with respect to the Class M-1 Simple Interest Deficiency if the
Cumulative Realized Losses as of such Distribution Date are greater than
$20,049,449; (ii) no such withdrawal shall be made with respect to the Class M-2
Simple Interest Deficiency if the Cumulative Realized Losses as of such
Distribution Date are greater than $14,087,692; (iii) no withdrawal with respect
to Class B-1 Simple Interest Deficiency shall be made if the Cumulative Realized
Losses as of such Distribution Date are greater than $8,125,936; (iv) no such
withdrawal with respect to the Class B-2 Interest Deficiency Amount shall be
made if the Cumulative Realized Losses as of such Distribution Date are greater
than $4,335,823; (v) no withdrawal with respect to a Class M-1 Simple Interest
Deficiency shall be made if the aggregate withdrawals with respect to all prior
Class M-1 Interest Deficiency Amounts equal $396,090; (vi) no withdrawal with
respect to a Class M-2 Simple Interest Deficiency shall be made if the aggregate
withdrawals with respect to all prior Class M-2 Interest Deficiency Amounts
equal $346,613; (vii) no withdrawal with respect to a Class B-1 Simple Interest
Deficiency shall be made if the aggregate withdrawals with respect to all prior
Class B-1 Simple Interest Deficiency Amounts equal $328,050 and (viii) no
withdrawal with respect to a Class B-2 Simple Interest Deficiency shall be made
if the aggregate withdrawals with respect to all prior Class B-2 Simple Interest
Deficiency Amounts equal $230,850.
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ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
SECTION 4.01 ADVANCES BY THE SERVICER.
(a) By the close of business on the day prior to each Distribution Date,
the Servicer shall (i) cause to be deposited, out of its own funds, in the
Collection Account an amount equal to the excess of (A) 30 day's interest on
each Contract over (B) the sum of (1) the amount of interest actually received
with respect to such Contract during the related Due Period and (2) the
Compensating Interest Payment paid by the Servicer with respect to such Contract
and such Due Period (an "Advance"), (ii) apply all or a portion of the funds
held in the Collection Account for future distribution to make such Advance, or
(iii) do any combination of clauses (i) and (ii) to make such Advance. To the
extent that the funds held in the Collection Account for future distribution (or
any portion thereof) that has been applied pursuant to clause (ii) or (iii) is
required for application as to all or a portion of a scheduled payment due on
the related Contract, the Servicer shall deposit, out of its own funds, the
amount of such funds (or the portion thereof required for such scheduled
payment) into the Collection Account on the immediately succeeding Due Date, and
the amount so deposited will become part of the Outstanding Amount Advanced.
(b) The Servicer shall reimburse itself for the Outstanding Amount
Advanced out of (i) collections of delinquent payments of principal and interest
on Contracts as to which the Servicer previously made a Advance, (ii) available
funds in the Collection Account attributable to funds held for future
distribution or (iii) any combination of clauses (i) and (ii) above.
(c) If the Servicer determines that any advance made pursuant to Section
4.01(a) has become a Nonrecoverable Advance and at the time of such
determination there exists an Outstanding Amount Advanced, then the Servicer
shall reimburse itself out of funds in the Collection Account for the amount of
such Nonrecoverable Advance for the next succeeding Distribution Date) by
withdrawing such amount pursuant to Section 3.07(a)(iii), but not in excess of
such Outstanding Amount Advanced. If a Contract becomes a Liquidation Contract
and at such time there exists an Outstanding Amount Advanced, then the Servicer
shall reimburse itself out of funds in the Collection Account for the portion of
Advances equal to the aggregate of delinquent scheduled payments on such
Contract to the Due Date in the Due Period in which such Contract became a
Liquidation Contract, but not in excess of such Outstanding Amount Advanced.
Notwithstanding any other provision of this Agreement, under no circumstances
shall the Servicer be required to make a Advance that the Servicer determines if
made would be a Nonrecoverable Advance.
SECTION 4.02 PRIORITIES OF DISTRIBUTION.
(a) On each Distribution Date, the Trustee shall distribute the Interest
Remittance Amount for such date in the following order of priority:
(i) to the Trustee, the Trustee Fee for such Distribution Date;
(ii) to the Loss Mitigation Advisor, the Litigation Mitigation Advisor
Fee;
73
(iii) to each Class of Class R Certificates, the Class R Interest
Distribution Amount allocable thereto;
(iv) to the Class A Certificates, the Class A Interest Distribution
Amount;
(v) to the Class M-1 Certificates, the Class M-1 Interest
Distribution Amount, the Class M-1 Liquidation Loss Interest Amount and the
Class M-1 Unpaid Liquidation Loss Interest Shortfall for such Distribution
Date;
(vi) to the Class M-2 Certificates, the Class M-2 Interest
Distribution Amount, the Class M-2 Liquidation Loss Interest Amount and the
Class M-2 Unpaid Liquidation Loss Interest Shortfall for such Distribution
Date;
(vii) to the Class B-1 Certificates, the Class B-1 Interest
Distribution Amount, the Class B-1 Liquidation Loss Interest Amount and the
Class B-1 Unpaid Liquidation Loss Interest Shortfall for such Distribution
Date;
(viii) to the Class B-2 Certificates, the Class B-2 Interest
Distribution Amount, the Class B-2 Liquidation Loss Interest Amount and the
Class B-2 Unpaid Liquidation Loss Interest Shortfall for such Distribution
Date;
(ix) to the Class A Certificates, any Interest Shortfalls for such
Distribution Date and any unpaid Interest Shortfall for previous
Distribution Dates, in each case, relating to the Class A Certificates;
(x) to the Class M-1 Certificates, any Interest Shortfalls for such
Distribution Date and any unpaid Interest Shortfall for previous
Distribution Dates, in each case, relating to the Class M-1 Certificates;
(xi) to the Class M-2 Certificates, any Interest Shortfalls for such
Distribution Date and any unpaid Interest Shortfall for previous
Distribution Dates, in each case, relating to the Class M-2 Certificates;
(xii) to the Class B-1 Certificates, any Interest Shortfalls for such
Distribution Date and any unpaid Interest Shortfall for previous
Distribution Dates, in each case, relating to the Class B-1 Certificates;
(xiii) to the Class B-2 Certificates, any Interest Shortfalls for such
Distribution Date and any unpaid Interest Shortfall for previous
Distribution Dates, in each case, relating to the Class B-2 Certificates;
and
(xiv) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.02(c), any such Interest
Remittance Amount remaining for such Distribution Date.
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(b) On each Distribution Date the Trustee shall distribute the Formula
Principal Distribution Amount for such date in the following order of priority:
(i) the sum of the Class A Formula Principal Distribution Amount plus
any Unpaid Class A Principal Shortfall, sequentially to (A) the Class R-I
Certificates until the Class R-I Certificate Balance has been reduced to
zero, (B) the Class R-II Certificates until the Class R-II Certificate
Balance has been reduced to zero, and (C) the Class A Certificates until
the Class A Certificate Balance has been reduced to zero;
(ii) the sum of the Class M-1 Formula Principal Distribution Amount
plus any Unpaid Class M-1 Principal Shortfall, to the Class M-1
Certificates until the Class M-1 Certificate Balance has been reduced to
zero;
(iii) the sum of the Class M-2 Formula Principal Distribution Amount
plus any Unpaid Class M-2 Principal Shortfall, to the Class M-2
Certificates until the Class M-2 Certificate Balance has been reduced to
zero;
(iv) the sum of the Class B-1 Formula Principal Distribution Amount
plus any Unpaid Class B-1 Principal Shortfall, to the Class B-1
Certificates until the Class B-1 Certificate Balance has been reduced to
zero;
(v) the sum of the Class B-2 Formula Principal Distribution Amount
plus any Unpaid Class B-2 Principal Shortfall, to the Class B-2
Certificates until the Class B-2 Certificate Balance has been reduced to
zero; and
(vi) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.02(c), any such Formula
Principal Distribution Amount remaining for such Distribution Date.
(c) On each Distribution Date, the Trustee shall distribute the Monthly
Excess Cashflow for such date in the following order of priority (to the extent
such amounts have not been paid pursuant to Section 4.02(a) or (b)):
(i) to the Class A Certificates as a payment of principal, the Unpaid
Class A Principal Shortfall, until the Class A Certificate Balance has been
reduced to zero;
(ii) to the Class A Certificates as a payment of principal, until the
earlier of the time when the Overcollateralization Amount equals the Target
Overcollateralization Amount or the Class A Certificate Balance has been
reduced to zero;
(iii) to the Class M-1 Certificates as a payment of principal, the
Unpaid Class M-1 Principal Shortfall, until the Class M-1 Certificate
Balance has been reduced to zero,
(iv) to the Class M-1 Certificates, an amount equal to the sum of (i)
the Class M-1 Liquidation Loss Interest Amount, (ii) the Class M-1 Unpaid
Liquidation Loss Interest Shortfall and (iii) as a payment of principal,
any Class M-1 Liquidation Loss Amount;
75
(v) to the Class M-1 Certificates as a payment of principal, until
the earlier of the time when the Overcollateralization Amount equals the
Target Overcollateralization Amount or the Class M-1 Certificate Balance
has been reduced to zero;
(vi) to the Class M-2 Certificates as a payment of principal, the
Unpaid Class M-2 Principal Shortfall, until the Class M-2 Certificate
Balance has been reduced to zero;
(vii) to the Class M-2 Certificates, an amount equal to the sum of (i)
any Class M-2 Liquidation Loss Interest Amount, (ii) any Class M-2 Unpaid
Liquidation Loss Interest Shortfall and (iii) as a payment of principal,
any Class M-2 Liquidation Loss Amount;
(viii) to the Class M-2 Certificates as a payment of principal, until
the earlier of the time when the Overcollateralization Amount equals the
Target Overcollateralization Amount or the Class M-2 Certificate Balance
has been reduced to zero;
(ix) to the Class B-1 Certificates as a payment of principal, the
Unpaid Class B-1 Principal Shortfall, until the Class B-1 Certificate
Balance has been reduced to zero,
(x) to the Class B-1 Certificates, an amount equal to the sum of (i)
any Class B-1 Liquidation Loss Interest Amount, (ii) any Class B-1 Unpaid
Liquidation Loss Interest Shortfall and (iii) as a payment of principal,
any Class B-1 Liquidation Loss Amount;
(xi) the Class B-1 Certificates as a payment of principal, until the
earlier of the time when the Overcollateralization Amount equals the Target
Overcollateralization Amount or the Class B-1 Certificate Balance has been
reduced to zero;
(xii) to the Class B-2 Certificates as a payment of principal, the
Unpaid Class B-2 Principal Shortfall, until the Class B-2 Certificate
Balance has been reduced to zero,
(xiii) to the Class B-2 Certificates, an amount equal to the sum of
(i) any Class B-2 Liquidation Loss Interest Amount, (ii) any Class B-2
Unpaid Liquidation Loss Interest Shortfall and (iii) as a payment of
principal, any Class B-2 Liquidation Loss Amount;
(xiv) to the Class B-2 Certificates as a payment of principal, until
the earlier of the time when the Overcollateralization Amount equals the
Target Overcollateralization Amount or the Class B-2 Certificate Balance
has been reduced to zero; and
(xv) to the Class SB Certificates, any Overcollateralization Release
Amounts, in reduction of the Certificate Balance of the Class SB
Certificate applied as set forth in the Preliminary Statement;
(xvi) to the Class SB Certificates, interest thereon at the
Pass-Through Rate applied as set forth in the Preliminary Statement; and
(xvii) to the Class R-I Certificate, any remaining amount.
(d) On each Distribution Date, the following amounts from the Interest
Remittance Amount and Principal Remittance Amount, in the following order of
priority, shall be deemed to have been distributed by REMIC I to REMIC II on
account of the REMIC I Regular Interests or
76
shall be withdrawn from the Custodial Account and distributed to the holders of
the Class R-I Certificates, as the case may be:
(i) to the Holders of REMIC I Regular Xxxxxxxxx X-XX0, X-XX0, X-XX0
and I-LT4, in an amount equal to (A) the Uncertificated Interest on such
REMIC I Regular Interests for such Distribution Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution Dates; and
(ii) on each Distribution Date, to the Holders of REMIC I Regular
Xxxxxxxxx X-XX0, X-XX0, X-XX0 and I-LT4, in an amount equal to the
remainder of the Interest Remittance Amount and Principal Remittance Amount
for such Distribution Date after the distributions made pursuant to clause
(i) above, allocated as follows (except as provided below):
(iii) (A) first, to the Holders of the REMIC I Regular Interests
I-LT2, REMIC I Regular Interests I-LT3 and REMIC I Regular Interests I-LT4,
the Class I-LT2 Principal Distribution Amount, the Class I-LT3 Principal
Distribution Amount and the Class I-LT4 Principal Distribution Amount;
(B) second, to the Holders of the REMIC I Regular
Xxxxxxxxx X-XX0, any remaining portion of such remainder, until the
principal balance of such REMIC I Regular Interest I-LT-1 shall have
been reduced to zero;
(C) third, any remaining portion of such remainder,
pro-rata, according to their respective principal balances remaining
after the distributions made pursuant to clause (A) above, to the
Holders of the REMIC I Regular Xxxxxxxxx X-XX0, X-XX0 and I-LT4,
until the principal balances of such REMIC I Regular Interests shall
have been reduced to zero; and
(D) fourth, any remaining portion of such remainder, to
the Holders of the Class R-I Certificates.
SECTION 4.03 REMIC I REALIZED LOSSES.
All Realized Losses on the Contracts shall be allocated to the REMIC I
Regular Interests in accordance with the definition of REMIC I Realized Losses.
SECTION 4.04 MONTHLY STATEMENTS TO CERTIFICATEHOLDERS.
(a) Not later than each Distribution Date, the Trustee shall prepare and
make available to each Certificateholder, the Servicer, the Depositor and each
Rating Agency, a statement based on the information provided by the Servicer as
agreed upon between the Servicer and the Trustee from time to time (the
"Servicer Remittance Report") setting forth with respect to the related
distribution (the "Monthly Statement"):
(i) the Class A Distribution Amount for such Distribution Date;
(ii) the amount of principal to be distributed to the Class A
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (1)
77
through (5), inclusive, of the definition of Principal Remittance Amount
and the amount of Unpaid Class A Principal Shortfall distributed to such
Class;
(iii) the amount of interest to be distributed to Class A
Certificateholders on such Distribution Date (separately identifying any
Class A Unpaid Interest Shortfall included in such distribution);
(iv) the remaining Class A Certificate Balance after giving effect to
the payment of principal to be made on such Distribution Date (on which
interest will be calculated on the next succeeding Distribution Date);
(v) the Class M-1 Distribution Amount for such Distribution Date;
(vi) the amount of principal to be distributed to each Class of Class
M-1 Certificateholders, separately stating the contribution thereto from
each of the amounts specified in clauses (1) through (5), inclusive, of the
definition of Principal Remittance Amount;
(vii) the amount of interest to be distributed to Class M-1
Certificateholders on such Distribution Date (separately identifying any
Class M-1 Unpaid Interest Shortfall included in such distribution);
(viii) the amount of Unpaid Class M-1 Principal Shortfall distributed
to such Class, the aggregate amount of any Class M-1 Liquidation Loss
Amount, the Class M-1 Liquidation Loss Interest Amount, the Class M-1
Unpaid Liquidation Loss Interest Shortfall Amount, and the Class M-1
Principal Shortfall;
(ix) the remaining Class M-1 Certificate Balance and the Class M-1
Adjusted Certificate Balance after giving effect to the payment of
principal to be made on such Distribution Date (on which interest will be
calculated on the next succeeding Distribution Date);
(x) the Class M-2 Distribution Amount for such Distribution Date;
(xi) the amount of principal to be distributed to the Class M-2
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (1) through (5), inclusive, of the
definition of Formula Principal Distribution Amount and the amount of
Unpaid Class M-2 Principal Shortfall distributed to such Class, the
aggregate amount of any Class M-2 Liquidation Loss Amount, the Class M-2
Liquidation Loss Interest Amount, the Class M-2 Unpaid Liquidation Loss
Interest Shortfall Amount, and the Class M-2 Principal Shortfall;
(xii) the amount of interest to be distributed to Class M-2
Certificateholders on such Distribution Date (separately identifying any
Class M-2 Unpaid Interest Shortfall included in such distribution);
(xiii) the remaining Class M-2 Certificate Balance and the Class M-2
Adjusted Certificate Balance after giving effect to the payment of
principal to be made on such Distribution Date (on which interest will be
calculated on the next succeeding Distribution Date);
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(xiv) the Class B-1 Distribution Amount for such Distribution Date;
(xv) the amount of principal to be distributed to the Class B-1
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (1) through (5), inclusive, of the
definition of Principal Remittance Amount and the amount of Unpaid Class
B-1 Principal Shortfall distributed to such Class, the aggregate amount of
any Class B-1 Liquidation Loss Amount, the Class B-1 Unpaid Liquidation
Loss Interest Shortfall Amount, and the Class B-1 Principal Shortfall;
(xvi) the amount of interest to be distributed to Class B-1
Certificateholders on such Distribution Date (separately identifying any
Class B-1 Unpaid Interest Shortfall included in such distribution);
(xvii) the remaining Class B-1 Certificate Balance and the Class B-1
Adjusted Certificate Balance after giving effect to the payment of
principal to be made on such Distribution Date (on which interest will be
calculated on the next succeeding Distribution Date;
(xviii) the Class B-2 Distribution Amount for such Distribution Date;
(xix) the amount of principal to be distributed to the Class B-2
Certificateholders, separately stating the contribution thereto from each
of the amounts specified in clauses (1) through (5), inclusive, of the
definition of Principal Remittance Amount and the amount of Unpaid Class
B-2 Principal Shortfall distributed to such Class, the aggregate amount of
any Class B-2 Liquidation Loss Amount, the Class B-2 Unpaid Liquidation
Loss Interest Shortfall, and the Class B-2 Principal Shortfall Amount;
(xx) the amount of interest to be distributed to Class B-2
Certificateholders on such Distribution Date (separately identifying any
Class B-2 Unpaid Interest Shortfall included in such distribution);
(xxi) the remaining Class B-2 Certificate Balance and the Class B-2
Adjusted Certificate Balance after giving effect to the payment of
principal to be made on such Distribution Date (on which interest will be
calculated on the next succeeding Distribution Date;
(xxii) the Pool Scheduled Principal Balance for such Distribution
Date;
(xxiii) the Overcollateralization Amount for such Distribution Date;
(xxiv) the amount of the Servicing Fees Fee, the Trustee Fee and the
Loss Mitigation Advisor Fee and any other insurance fees, if applicable,
with respect to such Distribution Date;
(xxv) the Pass-Through Rate for each Class of Certificates with
respect to such Distribution Date;
(xxvi) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Outstanding Amount Advanced
as of the last day of the calendar month preceding such Distribution Date;
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(xxvii) the number and aggregate principal amounts of Contracts in
foreclosure, in bankruptcy or which are delinquent (with a notation
indicating which Contracts, if any, are in foreclosure or bankruptcy) (1)
30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, as of the close
of business on the last day of the calendar month preceding such
Distribution Date, assuming twelve, thirty day months;
(xxviii) the Average Sixty Day Delinquency Ratio for such Distribution
Date;
(xxix) the total number and principal balance of any repossessed
Collateral (and market value, if available) as of the last day of the
calendar month preceding such Distribution Date;
(xxx)the Current Realized Losses incurred during the preceding
calendar month and Cumulative Realized Losses as of such Distribution Date;
(xxxi) the weighted average term to maturity of the Contracts as of
the close of business on the last day of the calendar month preceding such
Distribution Date;
(xxxii) the Net Funds Cap for the Due Period immediately preceding the
month of such Distribution Date;
(xxxiii) the Guarantee Payment Amount, if any for such Distribution
Date;
(xxxiv) the Guarantee Outstanding Amount remaining on such
Distribution Date after any Guarantee Payment Amounts for such Distribution
Date;
(xxxv) the Class B-1 Simple Interest Deficiency Amount, the Class B-2
Simple Interest Deficiency Amount, the Class M-1 Simple Interest Deficiency
Amount and the Class M-2 Simple Interest Deficiency Amount, as of such
Distribution Date; and
(xxxvi) the gross weighted average coupon of the Contracts as of the
first date of the applicable period for such Distribution Date.
The Trustee's responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy of
the information derived from the Servicer.
The Trustee will also make the monthly statements to Certificateholders
available each month to each party referred to in this Section 4.04(a) via the
Trustee's website. The Trustee's website can be accessed at
xxxx://xxx.xxxxxxxx.xxx/xxxxxx or at such other site as the Trustee may
designate from time to time. The Trustee may fully rely upon and shall have no
liability with respect to information provided by the Servicer.
(b) Upon request, within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at any
time during the calendar year was a Certificateholder, a statement setting forth
the payments of principal and interest on such Person's Class of Certificates
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in effect.
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SECTION 4.05 SERVICER TO COOPERATE.
The Servicer shall provide to the Trustee information which is mutually
agreeable to the Trustee and the Servicer with respect to each Contract serviced
by the Servicer no later than the second business day following the Servicer
Remittance Date necessary to enable the Trustee to perform its distribution,
accounting and reporting requirements hereunder.
SECTION 4.06 GUARANTEE AGREEMENT.
(a) As soon as possible, and in no event later than 11:00 a.m., New York
time, on the third Business Day immediately preceding each Distribution Date,
the Trustee shall determine if there is to be a Guarantee Payment Amount on such
Distribution Date.
If there is to be a Guarantee Payment Amount due on such Distribution Date,
the Trustee shall request that the Guarantor make the Guarantee Payment Amount
to the Certificate Account not later than the Business Day preceding the related
Distribution Date. The Trustee shall apply any Guarantee Payment Amounts in
accordance with clause (b) below (after giving effect to all distributions to be
made pursuant to section 4.02(a), 4.02(b) and 4.02(c) on such Distribution
Date).
(b) All amounts received on the Guarantee Agreement shall be paid to the
Class B-2 Certificates as a payment of principal and shall be applied to reduce
the Class B-2 Certificate Balance. In the event that the Class B-2 Certificate
Balance has been reduced to zero, all Guarantee Payments thereafter shall be
paid to the Class SB Certificates.
(c) No Certificate hereunder, other than the Class B-2 Certificates or
Class SB Certificates, shall be entitled to any Guarantee Payment.
(d) In the event that the Guarantor fails to make a payment under the
Guarantee Agreement, the Trustee shall enforce the obligation of the Guarantor
in accordance with the terms of the Guarantee Agreement.
(e) Notwithstanding any other provision to the contrary in this Agreement,
the Guarantor and the Depositor by mutual consent may, with the consent of 100%
of the holders of the Class B-2 Certificates and the Class SB Certificates, but
without the consent of the Trustee, the Seller, the Servicer or the Special
Servicer, reduce the Guarantee Payment Amount or Guarantee Outstanding Amount,
substitute or replace all or a portion of the Guarantee Agreement with another
guarantee or any other form of credit enhancement, change the terms of the
Guarantee Agreement or cancel the Guarantee Agreement upon written notice to the
Trustee. Upon such written notice, the Trustee will cooperate with the Guarantor
and the Depositor in accordance with the written instructions of the Guarantor
and the Depositor, on which it may conclusively rely and the Trustee will give
notice thereof to the Rating Agencies. If any such reduction, substitution,
replacement, change or cancellation requires an amendment to this Agreement, by
executing this Agreement, the parties hereto are hereby deemed to have consented
to such amendment and shall promptly execute such amendment upon the request of
the Depositor and the Trustee shall have no liability whatsoever in connection
with its execution of such amendment pursuant to the provisions of this Section
4.06(e).
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ARTICLE V
THE CERTIFICATES
SECTION 5.01 THE CERTIFICATES.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount which must be in excess of the
applicable minimum denomination) and aggregate denominations per Class set forth
in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date by wire transfer
in immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by a Responsible Officer upon the written order of the
Depositor. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time such signatures were affixed, authorized to
sign on behalf of the Trustee shall bind the Trustee, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there appears
on such certificate a Certificate of Authentication in the form provided herein,
executed by the Trustee by manual signature, and such authentication upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their countersignature. On the Closing Date, the
Trustee shall authenticate the Certificates to be issued at the written
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate transfers.
SECTION 5.02 CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND
EXCHANGE OF CERTIFICATES.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.06, a Certificate Register for the Trust Fund
in which, subject to the provisions of subsections (b) and (c) below and to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. Upon surrender for registration of transfer of any Certificate,
the Trustee shall execute and deliver, in the name of the designated transferee
or transferees, one or more new Certificates of the same Class and aggregate
Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever
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any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange shall
be cancelled and subsequently disposed of by the Trustee in accordance with the
Trustee's customary procedures.
(b) No transfer, sale, pledge or other disposition of a Private
Certificate shall be made unless such transfer, sale, pledge or other
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that a transfer of a Class SB
Certificate is to be made (i)(A) the Trustee shall require a written Opinion of
Counsel acceptable to and in form and substance satisfactory to the Trustee and
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 Trustee, the Depositor or the Servicer (except
that, if such transfer is made by the Depositor or the Servicer or any Affiliate
thereof, the Depositor or the Servicer shall provide such Opinion of Counsel at
their own expense); provided that such Opinion of Counsel shall not be required
in connection with the initial transfer of any such Certificate by the Depositor
to any Affiliate thereof and (B) the Trustee shall require the transferee to
execute a representation letter, substantially in the form of EXHIBIT I hereto,
and the Trustee shall require the transferor to execute a representation letter,
substantially in the form of EXHIBIT J hereto, each acceptable to and in form
and substance satisfactory to the Depositor and the Trustee certifying to the
Depositor and the Trustee the facts surrounding such transfer, which
representation letters shall not be an expense of the Trustee, the Depositor or
the Servicer; provided, however, that such representation letters shall not be
required in connection with any transfer of any such Certificate by the
Depositor to any Affiliate thereof and the Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the Trustee,
shall be a written representation) from the Depositor, of the status of such
transferee as an Affiliate of the Depositor or (ii) the prospective transferee
of such a Certificate shall be required to provide the Trustee, the Depositor
and the Servicer with an investment letter substantially in the form of EXHIBIT
K attached hereto (or such other form as the Depositor in its sole discretion
deems acceptable), which investment letter shall not be an expense of the
Trustee, the Depositor or the Servicer, and which investment letter states that,
among other things, such transferee (A) is a "qualified institutional buyer" as
defined under Rule 144A, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A of the Securities
Act of 1933, as amended, and (B) is aware that the proposed transferor intends
to rely on the exemption from registration requirements under the Securities Act
of 1933, as amended, provided by Rule 144A. In the event that a transfer of a
Class B-2 Certificate is to be made, clause (ii) of the preceding sentence must
be complied with in connection with such transfer. The Holder of any such
Certificate desiring to effect any such transfer, sale, pledge or other
disposition shall, and does hereby agree to, indemnify the Trustee, the
Depositor and the Servicer against any liability that may
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result if the transfer, sale, pledge or other disposition is not so exempt or is
not made in accordance with such federal and state laws.
(c) The Trustee shall cooperate with the Depositor in providing the Rule
144A information referenced in the preceding sentence, including providing to
the Depositor such information regarding the Certificates, the Contracts and
other matters regarding the Trust Fund as the Depositor shall reasonably request
and which is then in the Trustee's possession to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor,
the Seller and the Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
In the case of any Physical Certificate presented for registration in the
name of any Person, either (A) the Trustee shall require an Opinion of Counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Servicer to the effect that the purchase or holding of such Physical Certificate
is permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
(or comparable provisions of any subsequent enactments), and will not subject
the Trustee or the Servicer to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Seller or the Servicer or (B) the prospective
transferee shall be required to provide the Trustee, the Depositor and the
Servicer with a certification to the effect set forth in paragraph five of
EXHIBIT I (with respect to any Class SB Certificate) or paragraph fourteen of
EXHIBIT H-1 (with respect to any Class R Certificate), which the Trustee may
rely upon without further inquiry or investigation, or such other certifications
as the Trustee may deem desirable or necessary in order to establish that such
transferee or the Person in whose name such registration is requested either (a)
is not an employee benefit plan or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code, or any Person
(including an investment manager, a named fiduciary or a trustee of any such
plan) who is using "plan assets" of any such plan to effect such acquisition
(each, a "Plan Investor") or (b) in the case of any Private Certificate, the
following conditions are satisfied: (i) such transferee is an insurance company,
(ii) the source of funds used to purchase or hold such Certificate (or interest
therein) is an "insurance company general account" (as defined in U.S.
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied (each entity that satisfies this clause (b), a "Complying Insurance
Company"). Any transferee of a Class M or Class B-1 Certificate shall be deemed
to have represented by virtue of its purchase or holding of such Certificate (or
interest therein) that either (a) such transferee is not a Plan Investor, (b) it
has acquired and is holding such Certificate in reliance on Prohibited
Transaction Exemption ("PTE") 89-90, 54 Fed. Reg. 42597 (October 17, 1989), as
amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), and PTE 2000-58, 65
Fed. Reg. 67765 (November 13, 2000) (the "Exemption"), and that it understands
that there are certain conditions to the availability of the Exemption including
that such Certificate must be rated, at the time of purchase, not lower that
"BBB-" (or its equivalent) by Standard & Poor's, "BBB-" (or its equivalent) by
Fitch or "Baa3" (or its equivalent) by Xxxxx'x or (c) such transferee is a
Complying Insurance Company. If any Class M or Class B-1 Certificate (or any
interest therein) is acquired or held by any Person that does not satisfy the
conditions described in paragraph (ii) above, then the last preceding transferee
that either (i) is not a Plan Investor, (ii) acquired such Certificate in
compliance with the Exemption, or (iii) is a Complying Insurance
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Company shall be restored, to the extent permitted by law, to all rights and
obligations as Certificate Owner thereof retroactive to the date of such
Transfer of such Class M Certificate. The Trustee shall be under no liability to
any Person for making any payments due on such Certificate to such preceding
transferee. Any purported Certificateholder whose acquisition or holding of any
ERISA Restricted Certificate, Class M Certificate or Class B-1 Certificate (or
interest therein) was effected in violation of such restrictions shall indemnify
and hold harmless the Trustee, the Servicer, the Seller, any Subservicer, any
underwriter and the Trust Fund from and against any and all liabilities, claims,
costs or expenses incurred by such parties as a result of such acquisition or
holding.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any Physical Certificate that is in fact not
permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee or its designee under clause (d)(iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (d)(iii)(B) below and to execute
all instruments of transfer and to do all other things necessary in connection
with any such sale. The rights of each Person acquiring any Ownership Interest
in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Trustee shall require delivery to
it, and shall not register the Transfer of any Class R Certificate until
its receipt of, (I) an affidavit and agreement (a "Transfer Affidavit and
Agreement," in the form attached hereto as EXHIBIT H-1) from the proposed
Transferee, in form and substance satisfactory to the Servicer,
representing and warranting, among other things, that it is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the Class R
Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person who is not a Permitted Transferee, that for
so long as it retains its Ownership Interest in a Class R Certificate, it
shall endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(d) and agrees to be bound by them, and
(II) a certificate, in the form attached hereto as EXHIBIT H-2, from the
Holder wishing to transfer the Class R Certificate, in form and substance
satisfactory to the Servicer, representing and warranting, among other
things, that no purpose of the proposed Transfer is to impede the
assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a Responsible
Officer of the Trustee who is assigned to this Agreement has actual
knowledge that the proposed Transferee is not a
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Permitted Transferee, no Transfer of an Ownership Interest in a Class R
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person attempts to transfer
its Ownership Interest in a Class R Certificate and (y) not to transfer its
Ownership Interest unless it provides a certificate to the Trustee in the
form attached hereto as EXHIBIT H-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class
R Certificate, by purchasing an Ownership Interest in such Certificate,
agrees to give the Trustee written notice that it is a "pass-through
interest holder" within the meaning of Temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Class R Certificate, if it is, or is holding an Ownership
Interest in a Class R Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee shall register the Transfer of any Class R
Certificate only if it shall have received the Transfer Affidavit and
Agreement, a certificate of the Holder requesting such transfer in the form
attached hereto as EXHIBIT H-2 and all of such other documents as shall have
been reasonably required by the Trustee as a condition to such registration.
Transfers of the Class R Certificates to Non-United States Persons and
Disqualified Organizations (as defined in Section 860E(e)(5) of the Code) are
prohibited.
(iii) (A) If any Disqualified Organization shall become a holder of a
Class R Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such Transfer of
such Class R Certificate. If a Non-United States Person shall become a
holder of a Class R Certificate, then the last preceding United States
Person shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of
such Transfer of such Class R Certificate. If a transfer of a Class R
Certificate is disregarded pursuant to the provisions of Treasury
Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding
Permitted Transferee shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. The Trustee
shall be under no liability to any Person for any registration of Transfer
of a Class R Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the holder
thereof or for taking any other action with respect to such holder under
the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Class R Certificate in violation of the restrictions in this Section
5.02(f) and to the extent that the retroactive restoration of the rights of
the Holder of such Class R Certificate as described in clause (d)(iii)(A)
above shall be invalid, illegal or unenforceable, then the Servicer shall
have the right, without notice to the holder or any prior holder of such
Class R Certificate, to sell such Class R Certificate to a purchaser
selected by the Servicer on such terms as the Servicer may choose. Such
purported Transferee shall promptly endorse and deliver the Class R
Certificates in accordance with the instructions of the Servicer. Such
purchaser may be the Servicer itself or any Affiliate of the Servicer. The
proceeds of such sale, net of the
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commissions (which may include commissions payable to the Servicer or its
Affiliates), expenses and taxes due, if any, shall be remitted by the
Servicer to such purported Transferee. The terms and conditions of any sale
under this clause (d)(iii)(B) shall be determined in the sole discretion of
the Servicer, and the Servicer shall not be liable to any Person having an
Ownership Interest in a Class R Certificate as a result of its exercise of
such discretion.
(iv) The Trustee shall make available, upon written request from the
Internal Revenue Service and any potentially affected Person, all information
necessary to compute any tax imposed (A) as a result of the Transfer of an
Ownership Interest in a Class R Certificate to any Person who is a
Disqualified Organization, including the information regarding "excess
inclusions" of such Class R Certificates required to be provided to the
Internal Revenue Service and certain Persons as described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result
of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in Section
1381 of the Code that holds an Ownership Interest in a Class R Certificate
having as among its record holders at any time any Person who is a
Disqualified Organization. Reasonable compensation for providing such
information may be required by the Trustee before it will provide such
information to any such potentially affected Person.
(v) The provisions of this Section 5.02(d) set forth prior to this
clause (v) may be modified, added to or eliminated, provided that there shall
have been delivered to the Trustee the following:
(A) written notification from each Rating Agency to the
effect that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current ratings, if
any, of any Class of the Class A Certificates, Class M or Class B
Certificates below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date by such Rating Agency;
and
(B) subject to Section 3.16(f), an Officer's Certificate of
the Servicer stating that the Servicer has received an Opinion of Counsel,
in form and substance satisfactory to the Servicer, to the effect that such
modification, addition to or absence of such provisions will not cause any
portion of the applicable REMIC to cease to qualify as a REMIC and will not
cause (x) any portion of the applicable REMIC to be subject to an
entity-level tax caused by the Transfer of any Class R Certificate to a
Person that is a Disqualified Organization or (y) a Certificateholder or
another Person to be subject to a REMIC-related tax caused by the Transfer
of a Class R Certificate to a Person that is not a Permitted Transferee.
(e) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.02 in connection with transfer shall be at the
expense of the parties to such transfers.
(f) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules
87
established by the Depository; (iv) the Depository may collect its usual and
customary fees, charges and expenses from its Depository Participants; (v) the
Trustee shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Trustee may rely and shall
be fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor, (y) the Depositor at its option advises the
Trustee in writing that it elects to terminate the book-entry system through the
Depository or (z) after the occurrence of an Event of Default, Certificate
Owners representing at least 51% of the Certificate Balance of the Book-Entry
Certificates together advise the Trustee and the Depository through the
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Certificate
Owners, the Trustee shall notify all Certificate Owners, through the Depository,
of the occurrence of any such event and of the availability of definitive,
fully-registered Certificates (the "Definitive Certificates") to Certificate
Owners requesting the same. Upon surrender to the Trustee of the related Class
of Certificates by the Depository, accompanied by the instructions from the
Depository for registration, the Trustee shall issue the Definitive
Certificates. None of the Seller, the Servicer, the Depositor or the Trustee
shall be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Depositor shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
SECTION 5.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Trustee such security or
indemnity as may be required by it to hold it harmless, then, in the absence of
notice to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection
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with the issuance of any new Certificate under this Section 5.03, the Trustee
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Any replacement Certificate issued pursuant to this Section 5.03 shall
constitute complete and indefeasible evidence of ownership, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
SECTION 5.04 PERSONS DEEMED OWNERS.
The Servicer and the Trustee and any agent of the Servicer or the Trustee
may treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer or the
Trustee or any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
SECTION 5.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, and (c) provide a copy of the communication which
such Certificateholders propose to transmit, or if the Depositor or the Servicer
shall request such information in writing from the Trustee, then the Trustee
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 5.06 MAINTENANCE OF OFFICE OR AGENCY.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies New York, New York where Certificates
may be surrendered for registration of transfer or exchange. The Trustee
initially designates its Corporate Trust Office for such purposes. The Trustee
will give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
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ARTICLE VI
THE DEPOSITOR, THE SELLER, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01 RESPECTIVE LIABILITIES OF THE DEPOSITOR, THE SELLER, THE
SERVICER AND THE SPECIAL SERVICER.
The Depositor, the Seller, each Servicer and the Special Servicer shall
each be liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
SECTION 6.02 MERGER OR CONSOLIDATION OF THE DEPOSITOR, THE SELLER OR
THE SERVICER.
The Depositor, the Seller and the Servicer will each keep in full effect
its existence, rights and franchises as a corporation under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Contracts and to perform its respective duties under this Agreement.
Any Person into which the Depositor, the Seller or the Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor, the Seller or the Servicer shall be a party, or any
person succeeding to the business of the Depositor, the Seller or the Servicer,
shall be the successor of the Depositor, the Seller or the Servicer, as the case
may be, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided, however, that the successor or surviving Person with
respect to a merger or consolidation of the Servicer shall be an institution
having a net worth of not less than $10,000,000 or whose deposits are insured by
the FDIC through the BIF or the SAIF.
SECTION 6.03 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE SELLER, THE SERVICER
AND OTHERS.
(a) None of the Depositor, the Seller, the Servicer, the Special Servicer
nor any of the directors, officers, employees or agents of the Depositor, the
Seller, the Servicer or the Special Servicer shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Seller, the Servicer, the Special Servicer or any such Person against any breach
of representations or warranties made by it herein or protect the Depositor, the
Seller, the Servicer, the Special Servicer or any such Person from any liability
which would otherwise be imposed by reasons of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Depositor, the Seller, the Servicer,
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Seller, the Servicer or the Special Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. None of the Depositor, the
Seller, the Servicer or Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
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expense or liability; provided, however, that any of the Depositor, the Seller,
the Servicer or the Special Servicer may in its discretion undertake any such
action that it may deem necessary or desirable in respect of this Agreement and
the rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Seller, the Servicer and
the Special Servicer shall be entitled to be reimbursed therefor from the Trust
Fund.
(b) The Servicer shall indemnify the Trustee and hold it harmless against
any and all claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other costs, fees
and expenses that the Trustee may sustain in any way related to the failure of
the Servicer's willful misfeasance, bad faith or negligence in the performance
of its duties under this Agreement; provided that such failure is not related to
(i) the failure of any other party to this Agreement to perform its obligations
hereunder or (ii) the failure of the Custodian to timely perform its obligations
under the Custodial Agreement. The Servicer immediately shall notify the Trustee
if a claim is made by a third party with respect to this Agreement or the
Contracts.
SECTION 6.04 LIMITATION ON RESIGNATION OF THE SERVICER.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (i) (a) upon appointment of a successor servicer (which may
be with respect to all or a portion of the Contracts) and (b) receipt by the
Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading of the rating of any of the
Certificates related to the applicable Conracts, or (ii) upon determination that
its duties hereunder are no longer permissible under applicable law. Any such
determination under clause (ii) permitting the resignation of the Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the Servicer's responsibilities, duties, liabilities
and obligations hereunder.
SECTION 6.05 LIMITATION UPON LIABILITY OF THE LOSS MITIGATION ADVISOR.
Neither the Loss Mitigation Advisor, nor any of the directors, officers,
employees or agents of the Loss Mitigation Advisor, shall be under any liability
to the Trustee, the Certificateholders or the Depositor for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, in reliance upon information provided by the Servicer under the Loss
Mitigation Advisory Agreement or for errors in judgment; provided, however, that
this provision shall not protect the Loss Mitigation Advisor or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Loss Mitigation Advisory Agreement. The Loss Mitigation Advisor
and any director, officer, employee or agent of the Loss Mitigation Advisor may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder, and may rely
in good faith upon the accuracy of information furnished by the Servicer
pursuant to the Loss Mitigation Advisory Agreement in the performance of its
duties thereunder and hereunder.
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ARTICLE VII
DEFAULT
SECTION 7.01 EVENTS OF DEFAULT.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to make any deposit or payment required
pursuant to this Agreement (including but not limited to Advances to the
extent required under Section 4.01) which continues unremedied for a period
of one day after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the Trustee or the Depositor, or to the Servicer and the Trustee by the
Holders of Certificates having not less than 25% of the Voting Rights
evidenced by the Certificates; or
(ii) any failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement, or if any of the representations and
warranties of the Servicer in Section 2.03(a) proves to be untrue in any
material respect, which failure or breach continues unremedied for a period
of 60 days after the date on which written notice of such failure or breach,
requiring the same to be remedied, shall have been given to the Servicer by
the Trustee or the Depositor, or to the Servicer and the Trustee by the
Holders of Certificates having not less than 25% of the Voting Rights
evidenced by the Certificates, provided, however, that in the case of a
failure that cannot be cured within 60 days, the cure period may be extended
if the Servicer can demonstrate to the reasonable satisfaction of the Trustee
that the Servicer is diligently pursuing remedial action; or;
(iii) failure by the Servicer to maintain, if required, its license to
do business in any jurisdiction where the related Collateral is located; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force undischarged
or unstayed for a period of 60 consecutive days; or
(v) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Servicer
or of or relating to all or substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of or
commence a voluntary case under, any applicable insolvency, bankruptcy or
reorganization statute, make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations.
(b) Other than an Event of Default resulting from a failure of the
Servicer to make any required Advance, if an Event of Default shall occur and a
Responsible Officer of the Trustee has knowledge thereof, then, and in each and
every such case, so long as such Event of Default shall not
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have been remedied, the Trustee may, or at the direction of the Holders of
Certificates evidencing not less than 51% of the Voting Rights evidenced by the
Certificates, the Trustee shall by notice in writing to the Servicer (with a
copy to each Rating Agency), terminate all of the rights and obligations of the
Servicer under this Agreement and in and to the related Contracts and the
proceeds thereof, other than its rights as a Certificateholder hereunder. If an
Event of Default results from the failure of the Servicer to make a required
Advance, the Trustee shall, by notice in writing to the Servicer and the
Depositor (with a copy to each Rating Agency), terminate all of the rights and
obligations of the Servicer under this Agreement and in and to the related
Contracts and the proceeds thereof, other than its rights as a Certificateholder
hereunder.
(c) Upon receipt by the Servicer of such written notice of termination,
all authority and power of the Servicer under this Agreement, whether with
respect to the related Contracts or otherwise, shall pass to and be vested in
the Trustee or its nominee, subject to Section 7.02. Upon written request from
the Trustee, the Servicer shall prepare, execute and deliver to the successor
entity designated by the Trustee any and all documents and other instruments,
place in such successor's possession all related Contract Documents, and do or
cause to be done all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, including but not limited to the
transfer and endorsement or assignment of the related Contracts and related
documents, at the Servicer's sole expense. The Servicer shall cooperate with the
Trustee and such successor in effecting the termination of the Servicer's
responsibilities and rights hereunder, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to a Collection Account or Escrow
Account or thereafter received with respect to the related Contracts. The
Trustee or such other successor servicer shall thereupon make any Advance
required hereunder unless prohibited by applicable law. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the related Contracts and related documents, or
otherwise.
SECTION 7.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01 of this Agreement, the Trustee shall, subject to and to
the extent provided herein, be the successor to the Servicer, but only in its
capacity as servicer under this Agreement, and not in any other and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof and applicable law
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the related Contracts that the Servicer would have been entitled to charge to a
Collection Account, provided that the terminated Servicer shall nonetheless be
entitled to payment or reimbursement as provided in Section 3.07(a) to the
extent that such payment or reimbursement relates to the period prior to
termination of the Servicer. Notwithstanding the foregoing, if the Trustee has
become the successor to the Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to 4.01 hereof, or if it is
otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution the
appointment of which does not adversely affect the then current rating of the
Certificates by each Rating Agency, as the successor to the Servicer hereunder
in the assumption of all or any part of the
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responsibilities, duties or liabilities of the Servicer hereunder. Any successor
to the Servicer shall be an institution which has a net worth of at least
$10,000,000, which is willing to service the related Contracts and which
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, containing an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer (other than liabilities of the Servicer under Section 6.03 hereof
incurred prior to termination of the Servicer under Section 7.01 hereunder),
with like effect as if originally named as a party to this Agreement; provided
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately prior to such assignment and delegation will not be qualified
or reduced as a result of such assignment and delegation. Pending appointment of
a successor to the Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to the limitations described
herein, act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on the related Contracts as it
and such successor shall agree; provided, however, that no such compensation
shall be in excess of the Servicing Fee. The Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Trustee nor any other successor
servicer shall be deemed to be in default by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
Any successor to the Servicer shall give notice to the Obligors of such
change of servicer and shall, during the term of its service as servicer,
maintain in force the policy or policies that the Servicer is required to
maintain pursuant to this Agreement.
SECTION 7.03 NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination of or appointment of a successor to the Servicer,
the Trustee shall give prompt written notice thereof to Certificateholders and
to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder actually known to a Responsible Officer the Trustee,
unless such Event of Default shall have been cured or waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 DUTIES OF THE TRUSTEE.
The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiver of all Events of Default that may have occurred, shall
undertake to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred and remains
uncured and not waived, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents. orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that the Trustee shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own grossly negligent failure
to act or its own willful misconduct; provided, however, that:
(i) unless an Event of Default actually known to the Trustee shall have
occurred and be continuing, the duties and obligations of the Trustee shall
be determined solely by the express provisions of this Agreement, the Trustee
shall not be liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Agreement which it believed in good faith to be genuine and to have been duly
executed by the proper authorities respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be finally proven that the Trustee was grossly negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this
Agreement;
(iv) no provision of this Agreement shall require the Trustee to act as
Servicer or be responsible in any way for the acts or omissions of the
Servicer until such time as it acts as successor servicer pursuant to the
terms of this Agreement; and
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(v) the Trustee shall have no duty (A) (other than in its capacity as
successor servicer) to see to any recording, filing or depositing of this
Agreement or any agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing of any thereof, (B)
(other than in its capacity as successor servicer)to see to any insurance,
(C) (other than with respect to Section 3.16 hereof) to see to the payment or
discharge of any tax, assessment, or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against,
any part of the Trust Fund, (D) to confirm or verify the contents of any
certificates of the Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the appropriate party.
SECTION 8.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and conclusively rely upon and shall be
protected in acting or refraining from acting upon any resolution, 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 and the Trustee shall have
no responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing so to do by Holders
of Certificates evidencing not less than 25% of the Voting Rights allocated
to each Class of Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
affiliates, accountants or attorneys and the Trustee shall not be responsible
for any negligence or willful misconduct on the part of such agents,
affiliates, accountants or attorneys appointed by it with due care;
(vi) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
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(vii) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(viii) the Trustee shall not be deemed to have actual knowledge of an
Event of Default until a Responsible Officer of the Trustee shall have
received written notice thereof;
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby;
(x) the rights of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act;
(xi) anything to the contrary in this Agreement notwithstanding, in no
event shall the Trustee be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including, but not limited to, lost
profits) even if the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action; and
(xii) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers
granted hereunder.
SECTION 8.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR CONTRACTS.
The recitals contained herein and in the Certificates shall not be taken as
the statements of the Trustee, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Contract or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Contracts or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
SECTION 8.04 TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates and may transact business with the Depositor, the
Seller, the Servicer and their affiliates, with the same rights as it would have
if it were not the Trustee.
SECTION 8.05 TRUSTEE'S FEES AND EXPENSES.
(a) The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Certificate Account on each Distribution Date
prior to making distributions pursuant to Section 4.02 any investment income or
other benefit derived from balances in the Certificate Account for such
Distribution. Subject to the limitations set forth in Section 8.05(b), the
Trustee and any director, officer, employee or agent of the Trustee shall be
indemnified by the Seller and held harmless against any loss, liability or
expense (including reasonable attorney's fees and
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expenses) incurred in connection with any claim or legal action relating to (a)
this Agreement or the Custodial Agreement, (b) the Certificates, or (c) the
performance of any of the Trustee's duties hereunder or under the Custodial
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or gross negligence in the performance of any of
the Trustee's duties hereunder or incurred by reason of any action of the
Trustee taken at the direction of the Certificateholders. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Trustee hereunder. Without limiting the foregoing, the Seller covenants and
agrees, subject to the limitation set forth in Section 8.05(b), and except for
any such expense, disbursement or advance as may arise from the Trustee's gross
negligence, bad faith or willful misconduct, to pay or reimburse the Trustee,
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Agreement with respect
to: (A) the reasonable compensation and the expenses and disbursements of its
counsel not associated with the closing of the issuance of the Certificates, (B)
the reasonable compensation, expenses and disbursements of any accountant,
engineer or appraiser that is not regularly employed by the Trustee, to the
extent that the Trustee must engage such persons to perform acts or services
hereunder, (C) printing and engraving expenses in connection with preparing any
Definitive Certificates and (D) any other reasonable expenses incurred other
than in the ordinary course of its business by the Trustee in connection with
its duties hereunder. Except as otherwise provided herein, the Trustee shall not
be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee
hereunder or for any other expenses.
(b) Notwithstanding anything to the contrary in this Agreement, the Seller
shall not be obligated to pay to the Trustee more than, in the aggregate,
$150,000 pursuant to the second and third sentence of Section 8.05(a) hereof.
Other than as set forth in this Section 8.05, the Trustee shall not be entitled
to any other compensation or reimbursement for loss or expenses.
SECTION 8.06 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce their respective then current
Ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction), as evidenced in writing by each
Rating Agency. If such corporation or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the proposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. 1n case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07. The entity serving as Trustee may have normal banking and trust
relationships with the Depositor, the Seller or the Servicer and their
affiliates; provided, however, that such entity cannot be an affiliate of the
Seller, the Depositor or the Servicer other than the Trustee in its role as
successor to the Servicer.
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SECTION 8.07 RESIGNATION AND REMOVAL OF THE TRUSTEE.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice of resignation to the Depositor, the Seller,
the Servicer, the Special Servicer and each Rating Agency not less than 60 days
before the date specified in such notice, when, subject to Section 8.08, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If the Trustee gives notice of such resignation, the Depositor shall
promptly appoint a successor trustee. If no successor trustee meeting such
qualifications shall have been so appointed and have accepted appointment within
30 days after the giving of such notice of resignation or removal (as provided
below), the resigning or removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 and shall fail to resign after written request
thereto by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged as bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, one copy of which shall
be delivered to the Trustee, one copy to the Servicer and the Seller and one
copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which shall be delivered
by the successor Trustee to the Depositor, the Servicer and the Seller, one
complete set to the Trustee so removed and one complete set to the successor so
appointed. Notice of any removal of the Trustee shall be given to each Rating
Agency by the successor trustee. All of the costs incurred by the Trustee in
connection with its removal without cause shall be promptly reimbursed to it
from the Trust Fund.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08.
SECTION 8.08 SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee, the
Servicer and the Seller an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Servicer, the Seller 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
8.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06 and its appointment shall not
adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 8.09 MERGER OR CONSOLIDATION OF THE TRUSTEE.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.06 without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Depositor and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Depositor and the Trustee may consider necessary or desirable. If the Depositor
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in the case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon
the Trustee, except for the obligation of the Trustee in its capacity as
successor servicer under this Agreement to advance funds on behalf of the
Servicer, shall be conferred or imposed upon and exercised or performed by
the Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular set or acts
are to be performed (whether as Trustee hereunder or as successor to the
Servicer hereunder), the
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Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to the applicable Trust Fund or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(iv) The Depositor, and not the Trustee, shall be liable for the payment
of reasonable compensation, reimbursement and indemnification to any such
separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11 PERIODIC FILINGS.
The Trustee shall, on behalf of the Trust, cause to be filed with the
Securities and Exchange Commission any periodic reports required to be filed
under the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder. In
connection with the preparation and filing of such periodic reports, the
Depositor and the Servicer shall, upon the written request of the Trustee,
timely provide to the Trustee all material information reasonably available to
them which is requested by the Trustee for the purpose of being included in such
reports. The Trustee shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to the
Trustee's inability or failure to obtain any information not resulting from its
own gross negligence or willful misconduct.
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SECTION 8.12 TRUST OBLIGATIONS.
For all purposes herein, any and all rights, duties and obligations of the
Trustee on behalf of the Trust shall be the rights, duties and obligations of
the Trust itself, to be exercised or performed by the Trustee.
SECTION 8.13 INDEMNIFICATION WITH RESPECT TO CERTAIN TAXES AND LOSS OF
REMIC STATUS.
In the event that any REMIC fails to qualify as a REMIC, loses its status
as a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Servicer of its duties and obligations set forth
herein, that Servicer shall indemnify the Trustee and the Trust Fund against any
and all losses, claims, damages, liabilities or expenses ("Losses") resulting
from such negligence; PROVIDED, HOWEVER, that the Servicer shall not be liable
for any such Losses attributable to the negligence of the Trustee, the Depositor
or the Holder of such Class R Certificate, as applicable, nor for any such
Losses resulting from misinformation provided by the Holder of such Class R
Certificate on which the Servicer has relied. The foregoing shall not be deemed
to limit or restrict the rights and remedies of the Holder of such Class R
Certificate now or hereafter existing at law or in equity. Notwithstanding the
foregoing, however, in no event shall the Servicer have any liability (1) for
any action or omission that is taken in accordance with and in compliance with
the express terms of, or which is expressly permitted by the terms of, this
Agreement, (2) for any Losses other than arising out of a negligent performance
by the Servicer of its duties and obligations set forth herein, and (3) for any
special or consequential damages to Certificateholders (in addition to payment
of principal and interest on the Certificates).
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ARTICLE IX
TERMINATION
SECTION 9.01 TERMINATION UPON LIQUIDATION OR PURCHASE OF THE CONTRACTS.
(a) Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Seller, the Servicer, the Special Servicer and the Trustee
created hereunder with respect to the Trust Fund shall terminate upon the
earlier of (A) the purchase by the Special Servicer, in its sole option, of all
Contracts (Repossessed Collateral) remaining on any Distribution Date after the
Optional Termination Date at the price equal to the sum of (i) 100% of the
Stated Principal Balance of each Contract (other than in respect of Repossessed
Collateral) plus one month's accrued interest thereon at the applicable Contract
Rate and (ii) with respect to any Repossessed Collateral, the lesser of (x) the
appraised value of any Repossessed Collateral as determined by the higher of two
appraisals completed by two independent appraisers selected by the Depositor at
the expense of the Special Servicer and (y) the Stated Principal Balance of each
Contract related to any Repossessed Collateral, plus accrued and unpaid interest
thereon at the applicable Contract Rate and (iii) any unreimbursed Advances,
Servicing Advances and Servicing Fees payable to the other Servicer which shall
be entitled to withdraw such amounts from the applicable Collection Account
pursuant to Section 3.07(a) and (B) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Contract remaining
in the Trust Fund and the disposition of all Repossessed Collateral and (ii) the
distribution to Certificateholders of all amounts required to be distributed to
them pursuant to this Agreement. In no event shall the trusts created hereby
continue beyond the expiration of 21 years from the death of the survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. James's, living on the date hereof.
(b) If the Special Servicer elects to terminate the Trust Fund pursuant to
Section 9.01(a) above, the Special Servicer shall retain all servicing rights
with respect to the Contracts serviced by it. The Servicer or any successor
servicer and the Special Servicer shall enter into a servicing agreement
mutually acceptable to such parties, pursuant to which the Servicer or successor
servicer shall continue to service and administer Contracts serviced by it in
accordance with the customary and usual standards of practice of prudent
manufactured housing contract servicers which service such manufactured housing
contracts.
SECTION 9.02 FINAL DISTRIBUTION ON THE CERTIFICATES.
If on any Determination Date, the Trustee determines that there are no
outstanding Contracts and no other funds or asset in the Trust Fund other than
the funds in the Collection Accounts and Certificate Account, the Trustee shall
promptly send a final distribution notice to each Certificateholder. If the
Special Servicer elects to terminate the Trust Fund pursuant to Section 9.01, at
least 20 days prior to the date notice is to be mailed to the affected
Certificateholders, the Special Servicer shall notify the Servicer and the
Trustee of the date it intends to terminate the Trust Fund and of the applicable
repurchase price of the Contracts and REO Properties.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the Trustee
by letter to Certificateholders mailed not earlier than the 15th day and not
later than the 25th day of the month next preceding the month of such
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final distribution. Any such notice shall specify (a) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Trustee shall give such notice to each Rating Agency at the time
such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case on
the final Distribution Date in proportion to their respective Percentage
Interests, with respect to Certificateholders of the same Class, an amount equal
to (i) as to each Class of Offered Certificates, (A) first to the Class A
Certificates, and then to the Class M-1, Class M-2, Class B-1 and Class B-2
Certificates sequentially, in that order, an amount equal to the Certificate
Balance thereof plus the related Interest Distribution Amount and (B) to the
extent of available funds (other than funds described in clause (ii) below)
after the distributions in clause (i)(A) above, the amounts referred to and in
the order described in Section 4.02(c) and (ii) as to the Class SB Certificates,
the amount due to the Class SB Certificate under this agreement, not paid (but
in no way exceeding the amount in the Collection Account).
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take reasonable and
appropriate steps, or may appoint an agent to take reasonable and appropriate
steps, to contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto and the Trustee shall
be discharged from all further liability with respect to the Certificates and
this Agreement.
SECTION 9.03 ADDITIONAL TERMINATION REQUIREMENTS.
(a) In the event the Special Servicer exercises its purchase option with
respect to the Contracts as provided in Section 9.01, at such time as the
Contracts are so purchased, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee has been provided
with an Opinion of Counsel, at the expense of the Special Servicer, to the
effect that the failure to comply with the requirements of this Section 9.03
will not (i) result in the imposition of taxes on "prohibited transactions" on
any REMIC as defined in Section 860E of the Code, or (ii) cause any REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(A) Within 90 days prior to the final Distribution Date set forth in
the notice given by the Trustee under Section 9.02, the Depositor shall
prepare and the Trustee shall adopt a plan of complete liquidation within
the meaning of Section 860F(a)(4) of the Code which, as evidenced by an
Opinion of Counsel (which opinion shall not be an expense of the Trustee or
the Trust Fund), meets the requirements of a qualified liquidation;
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(B) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the Contracts to the
Special Servicer for cash in accordance with Section 9.01; and
(C) On the date specified for final payment of the Certificates, the
Trustee shall, after payment of any unreimbursed Advances, Servicing
Advances, Servicing Fees or other fee compensation payable to the Servicer
pursuant to this Agreement, make final distributions of principal and
interest on the Certificates in accordance with Section 4.02 and distribute
or credit, or cause to be distributed or credited, to the Holders of the
Residual Certificates all cash on hand after such final payment (other than
the cash retained to meet claims), and the Trust Fund (and each REMIC)
shall terminate at that time.
(b) The Trustee as agent for each REMIC hereby agrees to adopt and sign
such a plan of complete liquidation upon the written request of the Depositor,
and the receipt of the Opinion of Counsel referred to in Section 9.03(a)(1) and
to take such other action in connection therewith as may be reasonably requested
by the Depositor.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Depositor to prepare and the Trustee to adopt and sign a plan of
complete liquidation.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 AMENDMENT.
This Agreement may be amended from time to time by the Depositor, the
Servicer, the Seller, the Special Servicer and the Trustee without the consent
of any of the Certificateholders (i) to cure any ambiguity or mistake, (ii) to
correct any defective provision herein or to supplement any provision herein
which may be inconsistent with any other provision herein, (iii) provided that
the affected party has agree in writing to such amendment, to add to the duties
or reduce the rights of the Depositor, the Seller or the Servicer, (iv) in
connection with the appointment of a successor Servicer, to modify, eliminate or
add to any of the servicing provisions contained in this Agreement, providing
the Rating Agencies confirm the then current rating of the Certificates giving
effect to such amendment, (v) to add any other provisions with respect to
matters or questions arising hereunder or (vi) to modify, alter, amend, add to
or rescind any of the terms or provisions contained in this Agreement; and,
provided, further, that any action pursuant to clauses (v) or (vi) above shall
not, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall not
be an expense of the Trustee or the Trust Fund, but shall be at the expense of
the party proposing such amendment), adversely affect in any material respect
the interests of any Certificateholder; provided, however, that no such Opinion
of Counsel shall be required if the Person requesting the amendment obtains a
letter from each Rating Agency stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates (without regard to the Guarantee Agreement). The Trustee, the
Depositor, the Seller and the Servicer also may at any time and from time to
time amend this Agreement without the consent of the Certificateholders to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary or helpful to (i) maintain the qualification of any REMIC as a REMIC
under the Code, (ii) avoid or minimize the risk of the imposition of any tax on
any REMIC pursuant to the Code that would be a claim at any time prior to the
final redemption of the Certificates or (iii) comply with any other requirements
of the Code; provided, that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the Depositor, the
Servicer, the Special Servicer, the Seller and the Trustee with the consent of
the Holders of each Class of Certificates affected thereby evidencing 66% of the
Certificate Balance of such Class for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, or (ii) reduce the
aforesaid percentages of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which
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opinion shall not be an expense of the Trustee or the Trust Fund, but shall be
at the expense of the party requesting such amendment, to the effect that such
amendment will not cause the imposition of any tax on any REMIC or the
Certificateholders or cause any REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01. The Trustee shall have no obligation to consent to any amendment
that it reasonably believes will materially and adversely affect its rights or
immunities under this Agreement.
Notwithstanding anything in this Section 10.01 to the contrary, this
Agreement (including Section 3.18 hereof) may not be amended, supplemented or
modified in any manner which may affect the rights, duties and obligations of
the Special Servicer hereunder without the consent of the Special Servicer.
SECTION 10.02 RECORDATION OF AGREEMENT; COUNTERPARTS.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Depositor at its expense, but only upon direction by the
Trustee (acting at the direction of holders of Certificates evidencing a
majority of the aggregate Certificate Balances of the Certificates) accompanied
by an Opinion of Counsel (at the Depositor's expense) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
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SECTION 10.03 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.04 INTENTION OF PARTIES.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund, including the Contracts, by the Depositor to the Trustee be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyance be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in either such assets, then (i) this
Agreement shall be deemed to be a security agreement within the meaning of the
Uniform Commercial Code of the State of New York and (ii) the conveyance
provided for in this Agreement shall be deemed to be an assignment and a grant
by the Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the assets transferred, whether now owned or
hereafter acquired.
The Depositor for the benefit of the Certificateholders shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
Trust Fund, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. The Depositor shall arrange for filing any
Uniform Commercial Code continuation statements in connection with any security
interest granted by the Depositor to the Trustee for the benefit of the
Certificateholders.
SECTION 10.05 NOTICES.
The Trustee shall use its best efforts to promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(a) Any material change or amendment to this Agreement;
(b) The occurrence of any Event of Default that has not been cured;
(c) The resignation or termination of the Servicer or the Trustee and the
appointment of any successor;
(d) The repurchase or substitution of Contracts pursuant to Sections 2.02
and 2.03; and
(e) The final payment to Certificateholders.
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In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
(a) Each report to Certificateholders described in Section 4.04;
(b) Each annual independent public accountants' servicing report described
in Section 3.15; and
(c) Any notice of a purchase of a Contract pursuant to Section 2.02, 2.03
or 3.09.
All directions, demands and notices hereunder shall be in writing and shall
be deemed to have been duly given when delivered to (i) in the case of the
Depositor, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Xxxxxx (with a copy to Credit Suisse First Boston Mortgage Securities
Corp., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Office
of the General Counsel), (ii) in the case of the Trustee, at the Corporate Trust
Office or such other address as the Trustee may hereafter furnish to the
Depositor and the Servicer, (iii) in the case of each of the Rating Agencies,
the address specified therefor in the definition corresponding to the name of
such Rating Agency, (iv) in the case of the Seller, 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, (v) in the case
of the Servicer, 0 Xxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 Attention; Chief
Financial Officer (with a copy to Tyco Capital Corporation, 0 Xxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 Attention: General Counsel) and (vi) in the case of
the Special Servicer, Vesta Servicing, L.P. 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000-X,
Xxxxxx, Xxxxx, 00000, Attention: Xxxx Xxxx. Notices to Certificateholders shall
be deemed given when mailed, first class postage prepaid, to their respective
addresses appearing in the Certificate Register.
SECTION 10.06 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07 ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, except as
provided in Sections 6.02 and 6.04, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee and Depositor.
SECTION 10.08 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
109
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 10.09 CERTIFICATES NONASSESSABLE AND FULLY PAID.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 10.10 PURPOSES AND POWERS OF THE TRUST FUND.
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Certificates to the Depositor in exchange for the
Contracts;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust Fund
and the making of distributions to the Certificateholders.
110
The trust is hereby authorized to engage in the foregoing activities. The
trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding without the consent of the
Certificateholders evidencing a majority of the aggregate Voting Rights of the
Certificates.
111
IN WITNESS WHEREOF, the Depositor, the Trustee, the Seller and the Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:
-------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
not in its individual capacity but solely as
Trustee
By:
-------------------------------------------
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.,
as the Servicer
By:
-------------------------------------------
Name:
Title:
DLJ MORTGAGE CAPITAL, INC.,
as the Seller
By:
-------------------------------------------
Name:
Title:
VESTA SERVICING, L.P.,
as the Special Servicer
By:
-------------------------------------------
Name:
Title:
000
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this day of November, 2001, before me, personally appeared
---
, known to me to be a of Credit Suisse First Boston Mortgage
------------ -------
Securities Corp., a Delaware corporation, one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this day of November, 2001, before me, personally appeared
---
, known to me to be a of Vesta Servicing, L.P.., a Delaware
------------ -------
limited partnership, one of the limited partnerships that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said limited partnership, and acknowledged to me that such corporation executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF [ ] )
: ss.:
COUNTY OF [ ] )
On the day of November, 2001, before me, personally appeared
---
, known to me to be a of The CIT Group/Sales
---------- -----------------
Financing, Inc. a Delaware corporation, one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF )
: ss.:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the of November, 2001 before me, a Notary Public in and for said
----
State, personally appeared known to me to be a of
-------------- -------------
JPMorgan Chase Bank, a New York corporation that executed the within instrument
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF DELAWARE )
: ss.:
COUNTY OF [ ] )
On the of November, 2001 before me, a Notary Public in and for said
----
State, personally appeared known to me to be a of
-------------- -------------
DLJ Mortgage Corporation, a Delaware corporation that executed the within
instrument and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------------------
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
FORM OF CLASS A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
Certificate No. : [ ]
---
Cut-off Date : October 31, 2001
First Distribution Date : December 26, 2001
Initial Certificate Principal Balance of this $[ ]
Certificate ("Denomination") : ---------------
Initial Certificate Principal Balances of all $83,500,000
Certificates of this Class :
CUSIP : 22540V HJ 4
Pass-Through Rate The lesser of (i) 5.60%
plus, if the Class A
Certificates are not
repurchased on the
Distribution Date
succeeding the Option
Termination Date, 0.50%
and : (ii) the Net Funds
Cap.
Maturity Date : September 25, 2031
A-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB ABS Trust Series 2001-MH29
CSFB Manufactured Housing Contract Pass-Through Certificates, Series 2001-MH29,
Class A
evidencing a percentage interest in the distributions allocable to the
Class A Certificates with respect to a Trust Fund consisting primarily of a
pool of fixed rate manufactured home loans and installment sales contracts
(the "Contracts") formed and sold by Credit Suisse First Boston Mortgage
Securities Corp.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer, the Special Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Contracts are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Contracts
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of November 1, 2001 specified above (the "Agreement") among
the Depositor, The CIT Group/Sales Financing, Inc., as servicer (the
"Servicer"), DLJ Mortgage Capital, Inc., as seller (the "Seller"), Vesta
Servicing, L.P., as special servicer (the "Special Servicer") and JPMorgan Chase
Bank, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding the Distribution Date (the "Record Date") in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to Holders of Certificates of the
Class to which this Certificate belongs on such Distribution Date pursuant to
the Agreement.
A-2
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor. The final distribution on
each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as CSFB Manufactured Housing Contract Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Special Servicer, the Seller and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Servicer, the Depositor, the Special Servicer and the Trustee and any
agent of the Servicer, the Depositor, the Special Servicer or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Servicer, the Depositor, the Trustee,
or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Contracts is less than 10% of the Aggregate Contract Balance as of the
Cut-off Date, the Special Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Contracts and all
A-3
property acquired in respect of the Contracts at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Contract remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person named
in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
A-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 20, 2001.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
Date: November 20, 2001
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Authorized Signatory
A-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ,
-----------------------------------------------
--------------------------------------------------------------------------------
for the account of ,
-----------------------------------------------------------
account number , or, if mailed by check, to
----------- ---------------------
Applicable statements should be mailed to
--------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
This information is provided by, the assignee named above, or, as its agent.
A-6
EXHIBIT B
FORM OF CLASS [M-1][M-2][B-1] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
[CLASS M-1 CERTIFICATES] [AND CLASS M-2 CERTIFICATES] AS DESCRIBED IN THE
AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED BY VIRTUE
OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN) THAT EITHER
(A) SUCH TRANSFEREE IS NOT AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE
OF ANY PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR PURCHASING ANY
CERTIFICATE WITH "PLAN ASSETS" OF ANY PLAN (A "PLAN INVESTOR"), (B) IT HAS
ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION
EXEMPTION ("PTE") 89-90, 59 FED. REG. 42597 (OCTOBER 17, 1989), AS AMENDED BY
PTE 97-34, 62 FED. REG. 39021 (JULY 21, 1997), AND PTE 2000-58, 65 FED. REG.
67765 (NOVEMBER 13, 2000) (THE "EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE
ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION INCLUDING THAT SUCH
CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR
ITS EQUIVALENT) BY STANDARD & POOR'S, FITCH OR XXXXX'X OR (C) (I) THE TRANSFEREE
IS AN INSURANCE COMPANY, (II) THE SOURCE OF FUNDS TO BE USED BY IT TO PURCHASE
THE CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60), and
(iii) the CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (C), A "cOMPLYING INSURANCE
COMPANY).
B-1
IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD BY ANY PERSON
THAT DOES NOT SATISFY THE CONDITIONS DESCRIBED IN THE PRECEDING PARAGRAPH, THEN
THE LAST PRECEDING TRANSFEREE THAT EITHER (I) IS NOT A PLAN INVESTOR, (II)
ACQUIRED SUCH CERTIFICATE IN COMPLIANCE WITH THE RFC EXEMPTION, OR (III) IS A
COMPLYING INSURANCE COMPANY SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW,
TO ALL RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE
DATE OF SUCH TRANSFER OF THIS CERTIFICATE. THE TRUSTEE SHALL BE UNDER NO
LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS CERTIFICATE TO SUCH
PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS IN SECTION
5.02(C) OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS
THE DEPOSITOR, THE TRUSTEE, THE SERVICER, ANY SUBSERVICER, AND THE TRUST FUND
FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY
SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
Certificate No. : [ ]
----
Cut-off Date : October 31, 2001
First Distribution Date : December 26, 2001
Initial Certificate Principal Balance of this [ ]
Certificate ("Denomination") : ------------
Initial Certificate Principal Balances of all [ ]
Certificates of this Class : ------------
CUSIP : [22540V HM 7] [22540V HN 5]
[22540V HP 0]
Interest Rate : The lesser of (i) [ ]%
-----
and (ii) the Net Funds Cap.
Maturity Date : September 25, 2031
B-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB ABS Trust Series 2001-MH29
CSFB Manufactured Housing Contract Pass-Through Certificates, Series 2001-MH29,
Class [M[-1][-2]][B-1]
evidencing a percentage interest in the distributions allocable to the
Class M[-1][-2] [B-1]Certificates with respect to a Trust Fund consisting
primarily of a pool of fixed rate manufactured home loans and installment
sales contracts (the "Contracts") formed and sold by Credit Suisse First
Boston Mortgage Securities Corp.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer, the Special Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Contracts are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Contracts deposited by
Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor"). The
Trust Fund was created pursuant to a Pooling and Servicing Agreement dated as of
November 1, 2001 specified above (the "Agreement") among the Depositor, The CIT
Group/Sales Financing, Inc., as servicer (the "Servicer"), DLJ Mortgage Capital,
Inc., as seller (the "Seller"), Vesta Servicing, L.P. as special servicer (the
"Special Servicer") and JPMorgan Chase Bank, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding the Distribution Date (the "Record Date") in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to Holders of Certificates of the
Class to which this Certificate belongs on such Distribution Date pursuant to
the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor. The final distribution on
each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
B-3
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as CSFB Manufactured Housing Contract Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Special Servicer, the Seller and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Servicer, the Depositor, the Special Servicer and the Trustee and any
agent of the Servicer, the Depositor, the Special Servicer or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Servicer, the Depositor, the Trustee,
or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Contracts is less than 10% of the Aggregate Contract Balance as of the
Cut-off Date, the Special Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Contracts and all property acquired in respect
of the Contracts at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Contract remaining in the Trust Fund or the disposition of all property in
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust
B-4
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
[Remainder of page intentionally left blank]
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 20, 2001.
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
Date: November 20, 2001
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Authorized Signatory
B-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ,
-----------------------------------------------
--------------------------------------------------------------------------------
for the account of ,
-----------------------------------------------------------
account number , or, if mailed by check, to
----------- ---------------------
Applicable statements should be mailed to
--------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
This information is provided by, the assignee named above, or, as its agent.
B-7
EXHIBIT C
FORM OF CLASS B-2 CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND CLASS M CERTIFICATES AND CLASS B-1 CERTIFICATES] DESCRIBED IN THE AGREEMENT
(AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN 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 REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(c) OF THE AGREEMENT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE DEPOSITOR AND THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
Certificate No. : [ ]
---
Cut-off Date : October 31, 2001
First Distribution Date : December 26, 2001
Initial Certificate Principal Balance of this $[ ]
Certificate ("Denomination") : -----------
Initial Certificate Principal Balances of all $3,800,000
Certificates of this Class :
Pass-Through Rate : The lesser of (i) 8.46%
and (ii) the Net Funds
Cap.
CUSIP : 2240V HH 8
Maturity Date : September 25, 2031
C-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB ABS Trust Series 2001-MH29
CSFB Manufactured Housing Contract Pass-Through Certificates, Series 2001-MH29,
Class B-2
evidencing a percentage interest in the distributions allocable to the
Class B-2 Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed rate manufactured home loans and installment sales
contracts (the "Contracts") formed and sold by Credit Suisse First Boston
Mortgage Securities Corp.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer, the Special Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Contracts are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Contracts deposited by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 specified
above (the "Agreement") among the Depositor, The CIT Group/Sales Financing,
Inc., as servicer (the "Servicer"), DLJ Mortgage Capital, Inc., as seller (the
"Seller"), Vesta Servicing, L.P., as special servicer (the "Special Servicer")
and JPMorgan Chase Bank, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding the Distribution Date (the "Record Date") in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to Holders of Certificates of the
Class to which this Certificate belongs on such Distribution Date pursuant to
the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor. The final distribution on
each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
C-2
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as CSFB Manufactured Housing Contract Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Special Servicer, the Seller and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
No transfer of this Class B-2 Certificate will be made unless such transfer
is exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is to be made, (i) the
Trustee or the Depositor may require an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee and the Depositor that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act of 1933, as amended, and of any applicable statute of any state
and (ii) the transferee shall execute an investment letter in the form described
by the Agreement. The Holder hereof desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee, the Depositor and the Servicer and
any agent acting on behalf of the Trustee against any liability that may result
if the transfer is not so exempt or is not made in accordance with such Federal
and state laws. In connection with any such transfer, the Trustee will also
require either (i) an opinion of counsel acceptable to and in form and substance
satisfactory to the Trustee, the Depositor and the Servicer with respect to the
permissibility of such transfer under the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code
(the "Code") and stating, among other things, that the transferee's acquisition
of a Class B-2 Certificate will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or
(ii) a representation letter, in the form as described by the Agreement, either
stating that the transferee is not an employee benefit or other plan subject to
the prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan, or stating that the
transferee is an insurance company, the source of funds to be used by it to
purchase the Certificate is an "insurance company general account" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60), and conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new
C-3
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Servicer, the Depositor, the Special Servicer and the Trustee and any
agent of the Servicer, the Depositor, the Special Servicer or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Servicer, the Depositor, the Trustee,
or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Contracts is less than 10% of the Aggregate Contract Balance as of the
Cut-off Date, the Special Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Contracts and all property acquired in respect
of the Contracts at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Contract remaining in the Trust Fund or the disposition of all property in
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust created by the Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 20, 2001.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
Date: November 20, 2001
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Authorized Signatory
C-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ,
-----------------------------------------------
--------------------------------------------------------------------------------
for the account of ,
-----------------------------------------------------------
account number , or, if mailed by check, to
----------- ---------------------
Applicable statements should be mailed to
--------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
This information is provided by, the assignee named above, or, as its agent.
C-6
EXHIBIT D
FORM OF CLASS R[-I][-II] CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(c ) OF THE AGREEMENT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE DEPOSITOR AND THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SERVICER AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR THE FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH
GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION
775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
(C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR
(F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR
D-1
OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT
OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO
LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
D-2
Certificate No. : [ ]
---
Cut-off Date : October 31, 2001
First Distribution Date : December 26, 2001
Initial Certificate Principal Balance of this $[ ]
Certificate ("Denomination") : ---
Initial Certificate Principal Balances of all $50
Certificates of this Class :
CUSIP : [22540V HK 1]
[2540V HL 9]
Pass-Through Rate : The lesser of (i) 5.60%
and (ii) the Net Funds
Cap.
Maturity Date : September 25, 2031
D-3
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB ABS Trust Series 2001-MH29
CSFB Manufactured Housing Contract Pass-Through Certificates, Series 2001-MH29,
Class R[-I][-II]
evidencing a percentage interest in the distributions allocable to the
Class R[-I][-II] Certificates with respect to a Trust Fund consisting
primarily of a pool of fixed rate manufactured home loans and installment
sales contracts (the "Contracts") formed and sold by Credit Suisse First
Boston Mortgage Securities Corp.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer, the Special Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Contracts are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Contracts deposited by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 specified
above (the "Agreement") among the Depositor, The CIT Group/Sales Financing,
Inc., as servicer (the "Servicer"), DLJ Mortgage Capital, Inc. (the "Seller"),
Vesta Servicing, L.P., as special servicer (the "Special Servicer") and JPMorgan
Chase Bank, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding the Distribution Date (the "Record Date") in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to Holders of Certificates of the
Class to which this Certificate belongs on such Distribution Date pursuant to
the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor. The final distribution on
each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
D-4
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as CSFB Manufactured Housing Contract Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Special Servicer, the Seller and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
No transfer of this Class R[-1][-2] Certificate will be made unless the
Trustee has received either (i) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee, the Depositor and the Servicer with
respect to the permissibility of such transfer under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and Section 4975 of the
Internal Revenue Code (the "Code") and stating, among other things, that the
transferee's acquisition of a Class R Certificate will not constitute or result
in a non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code or (ii) a representation letter, in the form as described by
the Agreement, stating that the transferee is not an employee benefit or other
plan subject to the prohibited transaction provisions of ERISA or Section 4975
of the Code (a "Plan"), or any other person (including an investment manager, a
named fiduciary or a trustee of any Plan) acting, directly or indirectly, on
behalf of or purchasing any Certificate with "plan assets" of any Plan.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
D-5
The Servicer, the Depositor, the Special Servicer and the Trustee and any
agent of the Servicer, the Depositor, the Special Servicer or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Servicer, the Depositor, the Trustee,
or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Contracts is less than 10% of the Aggregate Contract Balance as of the
Cut-off Date, the Special Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Contracts and all property acquired in respect
of the Contracts at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Contract remaining in the Trust Fund or the disposition of all property in
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust created by the Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
D-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 20, 2001.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
Date: November 20, 2001
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Authorized Signatory
D-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ,
-----------------------------------------------
--------------------------------------------------------------------------------
for the account of ,
-----------------------------------------------------------
account number , or, if mailed by check, to
----------- ---------------------
Applicable statements should be mailed to
--------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
This information is provided by, the assignee named above, or, as its agent.
D-8
EXHIBIT E
FORM OF CLASS SB CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
CLASS M CERTIFICATES AND CLASS B CERTIFICATES DESCRIBED IN THE AGREEMENT (AS
DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN 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 REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(c ) OF THE AGREEMENT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE SERVICER, THE DEPOSITOR AND THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
Certificate No. : [ ]
---
Cut-off Date : October 31, 2001
First Distribution Date : December 26, 2001
Initial Certificate Principal Balance of this $[ ]
Certificate ("Denomination") : ------------
Initial Certificate Principal Balances of all $1,095,468
Certificates of this Class :
Percentage Interest : [ ]%
------
CUSIP : N/A
Maturity Date : September 25, 2031
E-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB ABS Trust Series 2001-MH29
CSFB Manufactured Housing Contract Pass-Through Certificates, Series 2001-MH29,
Class SB
evidencing a percentage interest in the distributions allocable to the
Class SB Certificates with respect to a Trust Fund consisting primarily of
a pool of fixed rate manufactured home loans and installment sales
contracts (the "Contracts") formed and sold by Credit Suisse First Boston
Mortgage Securities Corp.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, the Servicer, the Special Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Contracts are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Contracts deposited by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of November 1, 2001 specified
above (the "Agreement") among the Depositor, The CIT Group/Sales Financing,
Inc., as servicer (the "Servicer"), DLJ Mortgage Capital, Inc., as seller (the
"Seller"), Vesta Servicing, L.P., as special servicer (the "Special Servicer")
and JPMorgan Chase Bank, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the Business Day
immediately preceding the Distribution Date (the "Record Date") in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to Holders of Certificates of the
Class to which this Certificate belongs on such Distribution Date pursuant to
the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor. The final distribution on
each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
E-2
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as CSFB Manufactured Housing Contract Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Special Servicer, the Seller and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
No transfer of this Class SB Certificate will be made unless such transfer
is exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that such a transfer is to be made, (i) the
Trustee or the Depositor may require an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee and the Depositor that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act of 1933, as amended, and of any applicable statute of any state
and (ii) the transferee shall execute an investment letter in the form described
by the Agreement. The Holder hereof desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee, the Depositor and the Servicer and
any agent acting on behalf of the Trustee against any liability that may result
if the transfer is not so exempt or is not made in accordance with such Federal
and state laws. In connection with any such transfer, the Trustee will also
require either (i) an opinion of counsel acceptable to and in form and substance
satisfactory to the Trustee, the Depositor and the Servicer with respect to the
permissibility of such transfer under the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code
(the "Code") and stating, among other things, that the transferee's acquisition
of a Class SB Certificate will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or
(ii) a representation letter, in the form as described by the Agreement, either
stating that the transferee is not an employee benefit or other plan subject to
the prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan, or stating that the
transferee is an insurance company, the source of funds to be used by it to
purchase the Certificate is an "insurance company general account" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60), and conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new
E-3
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Servicer, the Depositor, the Special Servicer and the Trustee and any
agent of the Servicer, the Depositor, the Special Servicer or the Trustee may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Servicer, the Depositor, the Trustee,
or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Contracts is less than 10% of the Aggregate Contract Balance as of the
Cut-off Date, the Special Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Contracts and all property acquired in respect
of the Contracts at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Contract remaining in the Trust Fund or the disposition of all property in
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust created by the Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
E-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 20, 2001.
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
Date: November 20, 2001
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Authorized Signatory
E-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
----------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ,
-----------------------------------------------
--------------------------------------------------------------------------------
for the account of ,
-----------------------------------------------------------
account number , or, if mailed by check, to
----------- ---------------------
Applicable statements should be mailed to
--------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
This information is provided by, the assignee named above, or, as its agent.
E-6
EXHIBIT F
TRUST RECEIPT AND INITIAL CERTIFICATION
November ____, 2001
JPMorgan Chase Bank
as Trustee under the Pooling and Servicing Agreement
Credit Suisse First Boston Mortgage Securities Corp.,
CSFB ABS Trust Series 2001-MH29,
CSFB Manufactured Housing Pass-Through
Certificates, Series 2001-MH29
Institutional Trust Services/Structured Finance Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial Agreement, dated as of November 1, 2001, between
JPMorgan Chase Bank, as Trustee, and Bank One Trust Company,
N.A., as Custodian.
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 4 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies as to
each Contract in the Contract Schedule that (i) it has received the original
Contract and Assignment of Contract with respect to each Contract (or Mortgage
Note and Assignment of Mortgage with respect to each Land Home Contract)
identified on the Contract Schedule attached hereto as Exhibit A and (ii) such
Contract or Mortgage Note (as applicable) has been reviewed by it (and with
regards to any Land Home Contracts, such Mortgage Note appears regular on its
face and relates to such Land Home Contract). The Custodian makes no
representations as to (i) the validity, legality, enforceability, sufficiency,
due authorization or genuineness of any of the documents contained in each
Custodial File or of any of the Contracts or (ii) the collectability,
insurability, effectiveness or suitability of any Contract.
The Custodian hereby confirms that it is holding each such Contract,
Assignment of Contract, Mortgage Note and Assignment of Mortgage as agent and
bailee of, and custodian for the exclusive use and benefit, and subject to the
sole direction, of the Trustee pursuant to the terms and conditions of the
Custodial Agreement.
This Trust Receipt and Initial Certification is not divisible or
negotiable.
The Custodian will accept and act on instructions with respect to the
Contract subject hereto upon surrender of this Trust Receipt and Initial
Certification at its office at Xxx Xxxxx Xxxxx Xxxxxx, 0XX-0, Xxxxxxx, XX 00000.
Attention: Document Custodian.
F-1
Capitalized terms used herein shall have the meaning ascribed to them
in the Custodial Agreement.
BANK ONE TRUST COMPANY, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-2
EXHIBIT G
TRUST RECEIPT AND FINAL CERTIFICATION
Trust Receipt #__________
Cut-off Date Principal Balance $__________
JPMorgan Chase Bank
as Trustee under the Pooling and Servicing Agreement
Credit Suisse First Boston Mortgage Securities Corp.,
CSFB ABS Trust Series 2001-MH29,
CSFB Manufactured Housing Pass-Through
Certificates, Series 2001-MH29
Institutional Trust Services/Structured Finance Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial Agreement, dated as of November 1, 2001, between
JPMorgan Chase Bank, as Trustee, and Bank One Trust Company,
N.A., as Custodian
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 6 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that as
to each Contract listed on the Contract Schedule (other than any Contract paid
in full or any Contract listed on the attachment hereto) it has reviewed the
Custodial Files and has determined that (i) all documents required to be
delivered to it pursuant to Sections 2(a) and (b) of the Custodial Agreement are
in its possession; (ii) such documents have been reviewed by it and appear
regular on their face and related to such Contract; (iii) all Assignments of
Contract or intervening assignments, as applicable, have been submitted for
recording in the jurisdictions in which recording is necessary; and (iv) each
[Contract] has been endorsed as provided in Section 2(a)(i) or 2(b)(i) (as
applicable) of the Custodial Agreement and each Contract has been assigned in
accordance with Section 2(e) of the Custodial Agreement. The Custodian makes no
representations as to (i) the validity, legality, enforceability, sufficiency,
due authorization or genuineness of any of the documents contained in each
Custodial File or of any of the Contracts or (ii) the collectability,
insurability, effectiveness or suitability of any such Contract.
The Custodian hereby confirms that it is holding each such Custodial
File as agent and bailee of, and custodian for the exclusive use and benefit,
and subject to the sole direction, of Trustee pursuant to the terms and
conditions of the Custodial Agreement.
This Trust Receipt and Final Certification is not divisible or
negotiable.
The Custodian will accept and act on instructions with respect to the
Contracts subject hereto upon surrender of this Trust Receipt and Final
Certification at its office at Xxx Xxxxx Xxxxx Xxxxxx, 0XX-0, Xxxxxxx, XX 00000.
Attention: Document Custodian.
G-1
Capitalized terms used herein shall have the meaning ascribed to them
in the Custodial Agreement.
BANK ONE TRUST COMPANY, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-2
EXHIBIT H-1
TRANSFER AFFIDAVIT
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Mortgage Pass-Through Certificates, Series 2001-MH29
Class R-I and Class R-II
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the CSFB Manufactured Housing Contract Pass-Through
Certificates, Series 2001-JMH29, Class R-[ ] (the "Owner")), a [savings
institution] [corporation] duly organized and existing under the laws of [the
State of ] [the United States], on behalf of which he makes
------------------
this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" or an electing large partnership as of [date of transfer] within
the meaning of Sections 860E(e)(5) and 775, respectively, of the Internal
Revenue Code of 1986, as amended (the "Code") or an electing large partnership
under Section 775(a) of the Code, (ii) will endeavor to remain other than a
disqualified organization for so long as it retains its ownership interest in
the Class R-[ ] Certificates, and (iii) is acquiring the Class R-[ ]
Certificates for its own account or for the account of another Owner from which
it has received an affidavit and agreement in substantially the same form as
this affidavit and agreement. (For this purpose, a "disqualified organization"
means an electing large partnership under Section 775 of the Code, the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R-[ ] Certificates to disqualified organizations or electing
large partnerships, under the Code, that applies to all transfers of Class R-[ ]
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
(or, with respect to transfers to electing large partnerships, on each such
partnership), or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a disqualified organization, on the agent;
(iii) that the person (other than with respect to transfers to electing large
partnerships) otherwise liable for the tax shall be relieved of liability for
the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such
person does not have actual knowledge
H-1-1
that the affidavit is false; and (iv) that the Class R-[ ] Certificates may be
"noneconomic residual interests" within the meaning of Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class R-[ ] Certificates if either the pass-through entity is an
electing large partnership under Section 775 of the Code if at any time during
the taxable year of the pass-through entity a disqualified organization is the
record holder of an interest in such entity. (For this purpose, a "pass through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except in the
case of a partnership, to the extent provided in Treasury regulations), or an
estate that is described in Section 7701(a)(30)(D) of the Code, or a trust that
is described in Section 7701(a)(30)(E) of the Code.
6. That the Owner is aware that the Trustee will not register the
transfer of any Class R-[ ] Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it knows
or believes that any of the representations contained in such affidavit and
agreement are false.
7. That the Owner has reviewed the restrictions set forth on the
face of the Class R-[ ] Certificates and the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement under which the Class R-[ ] Certificates
were issued (in particular, clause (iii)(A) and (iii)(B) of Section 5.02(d)
which authorize the Trustee to deliver payments to a person other than the Owner
and negotiate a mandatory sale by the Trustee in the event the Owner holds such
Certificates in violation of Section 5.02(d)). The Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
8. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R-[ ] Certificates will only
be owned, directly or indirectly, by an Owner that is not a disqualified
organization.
9. The Owner's Taxpayer Identification Number is .
------------------
10. This affidavit and agreement relates only to the Class R-[ ]
Certificates held by the Owner and not to any other holder of the Class R-[ ]
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R-[ ] Certificates.
11. That no purpose of the Owner relating to the transfer of any of
the Class R-[ ] Certificates by the Owner is or will be to impede the assessment
or collection of any tax.
12. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain
H-1-2
outstanding. In this regard, the Owner hereby represents to and for the benefit
of the person from whom it acquired the Class R-[ ] Certificate that the Owner
intends to pay taxes associated with holding such Class R-[ ] Certificate as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Class R-[ ] Certificate.
13. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Class R-[ ] Certificates remain outstanding.
14. The Purchaser is not an employee benefit plan or other plan
subject to the prohibited transaction provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), or an investment
manager, named fiduciary or a trustee of any such plan, or any other Person
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any such plan.
[Remainder of page intentionally left blank]
H-1-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this [ ]th day of [ ], 2[ ].
[NAME OF OWNER]
By:
-------------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
-----------------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this [ ]th day of [ ], 2001.
-----------
----------------------------------------
NOTARY PUBLIC
COUNTY OF
-------------------------------
STATE OF
--------------------------------
My Commission expires the day of
----
, 20 .
-------------- ---
X-0-0
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE
, 200
---------- --
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
JPMorgan Chase Bank
Institutional Trust Services/Structured
Finance Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp., CSFB
Manufactured Housing Contract Pass-Through Certificates, Series
2001-MH29, Class R-I and Class R-II
-----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
(the "Seller") to
------------------------------------ -------------------------
(the "Purchaser") of $ Initial Certificate Principal Balance
----------------
of the Credit Suisse First Boston Mortgage Securities Corp., CSFB ABS Trust
Series 2001-MH29, CSFB Manufactured Housing Contract Pass-Through Certificates,
Series 2001-MH29, Class R-[ ] (the "Certificates"), pursuant to Section 5.02 of
the Pooling and Servicing Agreement dated as of November 1, 2001 (the "Pooling
and Servicing Agreement") among the Credit Suisse First Boston Mortgage
Securities, Corp. (the "Depositor"), The CIT Group/Sales Financing, Inc., as
servicer (the "Servicer"), DLJ Mortgage Capital, Inc., as seller (the "Seller"),
Vesta Servicing, L.P., as special servicer (the "Special Servicer") and JPMorgan
Chase Bank, as trustee (the "Trustee"). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
1. No purpose of the Seller relating to the transfer of the
Certificate by the Seller to the Purchaser is or will be to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Servicer a transfer affidavit and agreement in the form attached
to the Pooling and Servicing Agreement as Exhibit H-1. The Seller does not know
or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the
H-2-1
Purchaser has historically paid its debts as they become due and has found no
significant evidence to indicate that the Purchaser will not continue to pay its
debts as they become due in the future. The Seller understands that the transfer
of a Class R-[ ] Certificate may not be respected for United States income tax
purposes (and the Seller may continue to be liable for United States income
taxes associated therewith) unless the Seller has conducted such an
investigation.
4. The Seller has no actual knowledge that the proposed Transferee
is not both a United States Person and a Permitted Transferee.
Very truly yours,
----------------------------------------
(Seller)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
H-2-2
EXHIBIT I
FORM OF INVESTOR REPRESENTATION LETTER
, 2
---------- ----
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
JPMorgan Chase Bank
Institutional Trust Services/Structured
Finance Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp., CSFB
Manufactured Housing Contract Pass-Through Certificates, Series
2001-MH29, Class B-2
-----------------------------------------------------------------
Ladies and Gentlemen:
Ladies and Gentlemen:
(the "Purchaser") intends to purchase
-----------------------------------
from (the "Seller") $ Initial
--------------------------------- ----------------
Certificate Principal Balance of the Credit Suisse First Boston Mortgage
Securities Corp., CSFB ABS Trust Series 2001-MH29 CSFB Manufactured Housing
Contract Pass-Through Certificates, Series 2001-MH29, Class B-2 (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of November 1, 2001 among the Credit
Suisse First Boston Mortgage Securities, Corp., as depositor (the "Depositor"),
The CIT Group/Sales Financing, Inc., as servicer (the "Servicer"), DLJ Mortgage
Capital, Inc., as seller (the "Seller"), Vesta Servicing, L.P., as special
servicer (the "Special Servicer") and JPMorgan Chase Bank, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Purchaser hereby
certifies, represents and warrants to, and covenants with, the Depositor, the
Trustee and the Servicer that:
1. The Purchaser understands that (a) the Certificates have not been
and will not be registered or qualified under the Securities Act of 1933, as
amended (the "Act") or any state securities law, (b) the Depositor is not
required to so register or qualify the Certificates, (c) the Certificates may be
resold only if registered and qualified pursuant to the provisions of the Act or
any state securities law, or if an exemption from such registration and
qualification is available, (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates and (e) the Certificates
will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any applicable
state securities laws.
I-1
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters,
and, in particular, in such matters related to securities similar to the
Certificates, such that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the economic risks of such an
investment and (c) an "accredited investor" within the meaning of Rule 501(a)
promulgated pursuant to the Act.
4. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicit any offer to buy or to accept
a pledge, disposition of other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest in
any Certificate or any other similar security with any person in any manner, (d)
make any general solicitation by means of general advertising or in any other
manner or (e) take any other action, that (as to any of (a) through (e) above)
would constitute a distribution of any Certificate under the Act, that would
render the disposition of any Certificate a violation of Section 5 of the Act or
any state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
5. The Purchaser
(a) is not an employee benefit or other plan subject
to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (a
"Plan"), or any other person (including an investment manager, a
named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any Plan within the meaning of the Department of Labor
("DOL") regulation at 29 C.F.R. ss.2510.3-101; or
(b) is an insurance company, the source of funds to be
used by it to purchase the Certificates is an "insurance company
general account" (within the meaning of DOL Prohibited
Transaction Class Exemption ("PTCE") 95-60), and conditions set
forth in Sections I and III of PTCE 95-60 have been satisfied.
In addition, the Purchaser hereby certifies, represents and warrants
to, and covenants with, the Depositor, the Trustee and the Servicer that the
Purchaser will not transfer such Certificates to any Plan or person unless such
Plan or person meets the requirements set forth in either 5(a) or (b) above.
Very truly yours,
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
I-2
EXHIBIT J
FORM OF TRANSFEROR REPRESENTATION LETTER
, 20
----------- ---
, 200
------------ --
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
JPMorgan Chase Bank
Institutional Trust Services/Structured
Finance Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp., CSFB
Manufactured Housing Contract Pass-Through Certificates, Series
2001-MH29, Class B-2
-----------------------------------------------------------------
Ladies and Gentlemen:
In connection with the sale by (the "Seller")
-------------------------
to (the "Purchaser") of $
------------------------------- ----------------------
Initial Certificate Principal Balance of the Credit Suisse First Boston
Mortgage Securities Corp., CSFB ABS Trust Series 2001-MH29, CSFB Manufactured
Housing Contract Pass-Through Certificates, Series 2001-MH29, Class B-2 (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of November 1, 2001 among the Credit
Suisse First Boston Mortgage Securities, Corp. (the "Depositor"), The CIT
Group/Sales Financing, Inc., as servicer (the "Servicer"), DLJ Mortgage Capital,
Inc., as seller (the "Seller"), Vesta Servicing, L.P., as special servicer (the
"Special Servicer") and JPMorgan Chase Bank, as trustee (the "Trustee"). The
Seller hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act, in any
manner set forth in the
J-1
foregoing sentence with respect to any Certificate. The Seller has not and will
not sell or otherwise transfer any of the Certificates, except in compliance
with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
----------------------------------------
(Seller)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
J-2
EXHIBIT K
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
The undersigned seller, as registered holder (the "Seller"), intends
to transfer the Rule 144A Securities described above to the undersigned buyer
(the "Buyer"). Reference is made to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of November 1, 2001 among the Credit
Suisse First Boston Mortgage Securities, Corp. (the "Depositor"), The CIT
Group/Sales Financing, Inc., as servicer (the "Servicer"), DLJ Mortgage Capital,
Inc., as seller ("DLJMC"), Vesta Servicing, L.P., as special servicer (the
"Special Servicer") and JPMorgan Chase Bank, as trustee (the "Trustee")
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee, the Servicer, the Seller and the Special Servicer as
follows:
(a) The Buyer understands that the Rule 144A Securities have not
been registered under the 1933 Act or the securities laws of any state.
(b) The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Rule 144A Securities.
K-1
(c) The Buyer has been furnished with all information regarding
the Rule 144A Securities that it has requested from the Seller, the Trustee
or the Servicer.
(d) Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security from, or otherwise approached
or negotiated with respect to the Rule 144A Securities, any interest in the
Rule 144A Securities or any other similar security with, any person in any
manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action, that would constitute a
distribution of the Rule 144A Securities under the 1933 Act or that would
render the disposition of the Rule 144A Securities a violation of Section 5
of the 1933 Act or require registration pursuant thereto, nor will it act,
nor has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
(e) The Buyer is a "qualified institutional buyer" as that term
is defined in Rule 144A under the 1933 Act and has completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. The Buyer is aware that the sale to it is being made in reliance on Rule
144A. The Buyer is acquiring the Rule 144A Securities for its own account
or the accounts of other qualified institutional buyers, understands that
such Rule 144A Securities may be resold, pledged or transferred only (i) to
a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the 1933 Act.
[3. The Buyer
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code") (a "Plan"), or any other
person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan within the meaning of the
Department of Labor ("DOL") regulation at 29 C.F.R. ss. 2510.3-101; or
(b) is an insurance company, the source of funds to be used by
it to purchase the Certificates is an "insurance company general account"
(within the meaning of DOL Prohibited Transaction Class Exemption ("PTCE")
95-60), and the conditions set forth in Sections I and III of PTCE 95-60
have been satisfied.]
4. This document may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
K-2
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
------------------------------------- ----------------------------------------
Print Name of Seller Print Name of Buyer
By: By:
---------------------------------- ------------------------------------
Name: Name:
Title: Title:
Taxpayer Identification Taxpayer Identification:
No. No:
----------------------------------- ------------------------------------
Date: Date:
--------------------------------- ----------------------------------
K-3
EXHIBIT L
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
To: [Address]
Re: Custodial Agreement, dated as of November 1, 2001, between
JPMorgan Chase Bank, as Trustee, and Bank One Trust Company,
N.A., as Custodian
-----------------------------------------------------------------
In connection with the administration of the Contracts held by you as
the Custodian on behalf of the Trustee, we request the release, and acknowledge
receipt, of the (Custodial File/[specify documents]) for the Contract described
below, for the reason indicated.
Obligor's Name Address & Zip Code:
---------------------------------
Contract Number:
---------------
Reason for Requesting Documents (check one)
-------------------------------
____ 1. Contract Paid in Full. (The Trustee or the Servicer of such
Contract hereby certifies that all amounts received in connection therewith have
been credited to the account of the Trustee or the Servicer.)
____ 2. Contract Liquidated By ____________________________ (The Trustee
or the Servicer of such Contract hereby certifies that all proceeds of
foreclosure, insurance, condemnation or other liquidation have been finally
received and credited to the account of the Trustee or the Servicer.)
____ 3. Contract in Foreclosure
____ 4. Other (explain) _____________________________________
If box 1 or 2 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Contract.
L-1
If box 3 or 4 above is checked, upon our return of all of the
above documents to you as the Custodian, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
THE CIT GROUP/SALES FINANCING, INC.,
as Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Acknowledgment of Documents returned to the Custodian:
BANK ONE TRUST COMPANY, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
L-2
SCHEDULE I
CONTRACT SCHEDULE
(Provided Upon Request)
Schedule I-1