EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
DLJ MORTGAGE CAPITAL, INC.,
Seller,
GREENPOINT MORTGAGE FUNDING, INC.,
Seller,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
Seller and Servicer,
THE CHASE MANHATTAN MORTGAGE CORPORATION,
Servicer,
CALMCO SERVICING L.P.,
Special Servicer,
BANK ONE, NATIONAL ASSOCIATION,
Trustee and
THE CHASE MANHATTAN BANK,
Trust Administrator
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2001
relating to
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2001-11
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Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund......................................55
SECTION 2.02 Acceptance by the Trustee.....................................58
SECTION 2.03 Representations and Warranties of the Sellers and
Servicers.....................................................59
SECTION 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans................................................62
SECTION 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.................................................62
SECTION 2.06 Issuance of Certificates......................................62
SECTION 2.07 REMIC Provisions..............................................62
SECTION 2.08 Covenants of each Servicer....................................67
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01 Servicers to Service Mortgage Loans...........................68
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers..................................................69
SECTION 3.03 Reserved......................................................70
SECTION 3.04 Trust Administrator to Act as Servicer........................70
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account...........................................71
SECTION 3.06 Establishment of and Deposits to Escrow Accounts;
Permitted Withdrawals from Escrow Accounts; Payments of
Taxes, Insurance and Other Charges............................74
SECTION 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans; Inspections.....................75
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and
Certificate Account...........................................76
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment
Insurance and Mortgage Guaranty Insurance Policy;
Claims; Restoration of Mortgaged Property.....................77
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements....................................................81
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.....................................82
SECTION 3.12 Trust Administrator to Cooperate; Release of Mortgage
Files.........................................................86
SECTION 3.13 Documents, Records and Funds in Possession of a
Servicer to be Held for the Trust Administrator...............86
SECTION 3.14 Servicing Fee.................................................87
SECTION 3.15 Access to Certain Documentation...............................87
SECTION 3.16 Annual Statement as to Compliance.............................88
SECTION 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements...............................88
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.....................................................89
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution....................................90
SECTION 4.02 Allocation of Losses.........................................104
SECTION 4.03 Policy Matters...............................................105
SECTION 4.04 Monthly Statements to Certificateholders.....................110
SECTION 4.05 Servicer to Cooperate........................................112
SECTION 4.06 Cross-Collateralization; Adjustments to Available Funds......112
SECTION 4.07 Distributions in Reduction of the Class III-A-5
Certificates.................................................113
ARTICLE V
ADVANCES BY A SERVICER
SECTION 5.01 Advances by a Servicer.......................................118
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.............................................119
SECTION 6.02 Registration of Transfer and Exchange of Certificates........119
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............125
SECTION 6.04 Persons Deemed Owners........................................125
SECTION 6.05 Access to List of Certificateholders' Names and
Addresses....................................................125
SECTION 6.06 Maintenance of Office or Agency..............................126
SECTION 6.07 Book-Entry Certificates......................................126
SECTION 6.08 Notices to Clearing Agency...................................127
SECTION 6.09 Definitive Certificates......................................127
ARTICLE VII
THE DEPOSITOR, THE SELLERS AND THE SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor and the
Servicers....................................................128
SECTION 7.02 Merger or Consolidation of the Depositor, the Sellers,
or the Servicers.............................................128
SECTION 7.03 Limitation on Liability of the Depositor, the Sellers,
and the Servicers and Others.................................129
SECTION 7.04 Servicer Not to Resign; Transfer of Servicing................129
SECTION 7.05 Sellers and Servicers May Own Certificates...................130
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default............................................131
SECTION 8.02 Trust Administrator to Act; Appointment of Successor.........132
SECTION 8.03 Notification to Certificateholders...........................134
SECTION 8.04 Waiver of Events of Default..................................134
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee............................................135
SECTION 9.02 Certain Matters Affecting the Trustee........................136
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans........138
SECTION 9.04 Trustee May Own Certificates.................................138
SECTION 9.05 Trustee's Fees and Expenses..................................138
SECTION 9.06 Eligibility Requirements for Trustee.........................139
SECTION 9.07 Resignation and Removal of Trustee...........................139
SECTION 9.08 Successor Trustee............................................140
SECTION 9.09 Merger or Consolidation of Trustee...........................141
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee................141
SECTION 9.11 Office of the Trustee........................................142
ARTICLE X
CONCERNING THE TRUST ADMINISTRATOR
SECTION 10.01 Duties of Trust Administrator................................143
SECTION 10.02 Certain Matters Affecting the Trust Administrator............144
SECTION 10.03 Trust Administrator Not Liable for Certificates or
Mortgage Loans...............................................146
SECTION 10.04 Trust Administrator May Own Certificates.....................146
SECTION 10.05 Trust Administrator's Fees and Expenses......................147
SECTION 10.06 Eligibility Requirements for Trust Administrator.............147
SECTION 10.07 Resignation and Removal of Trust Administrator...............148
SECTION 10.08 Successor Trust Administrator................................148
SECTION 10.09 Merger or Consolidation of Trust Administrator...............149
SECTION 10.10 Appointment of Co-Trust Administrator or Separate
Trust Administrator..........................................149
SECTION 10.11 Office of the Trust Administrator............................151
SECTION 10.12 Tax Return...................................................151
SECTION 10.13 Periodic Filings.............................................151
SECTION 10.14 Determination of Certificate Index...........................151
ARTICLE XI
TERMINATION
SECTION 11.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans...............................................152
SECTION 11.02 Procedure Upon Optional Termination..........................153
SECTION 11.03 Additional Termination Requirements..........................154
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment....................................................155
SECTION 12.02 Recordation of Agreement; Counterparts.......................156
SECTION 12.03 Governing Law................................................156
SECTION 12.04 Intention of Parties.........................................156
SECTION 12.05 Notices......................................................158
SECTION 12.06 Severability of Provisions...................................159
SECTION 12.07 Limitation on Rights of Certificateholders...................159
SECTION 12.08 Certificates Nonassessable and Fully Paid....................160
SECTION 12.09 Protection of Assets.........................................160
EXHIBITS
Exhibit A: Form of Class A Certificate..................................A-1
Exhibit B: Form of Class M Certificate..................................B-1
Exhibit C: Form of Class C-B Certificate................................C-1
Exhibit D: Form of Class AR Certificate.................................D-1
Exhibit E: Form of Class X Certificate..................................E-1
Exhibit F: Form of Class A-P Certificate................................F-1
Exhibit G: Form of Servicer Information.................................G-1
Exhibit H: [Reserved]...................................................H-1
Exhibit I: Form of Initial Certification of Trustee.....................I-1
Exhibit J: Form of Final Certification of Trustee.......................J-1
Exhibit K: Form of Request for Release..................................K-1
Exhibit L: Form of Transferor Certificate...............................L-1
Exhibit M-1: Form of Investment Letter....................................M-1
Exhibit M-2: Form of Rule 144A Letter.....................................M-2
Exhibit N: Form of Investor Transfer Affidavit and Agreement............N-1
Exhibit O: Form of Transfer Certificate.................................O-1
Exhibit P: Form of Escrow Account Certificate...........................P-1
Exhibit Q: Form of Escrow Account Letter................................Q-1
Exhibit R: Form of Certificate Insurance Policy.........................R-1
Exhibit S: Form of MGIC PMI Policy......................................S-1
SCHEDULES
Schedule I: Mortgage Loan Schedule.......................................I-1
Schedule II: Representations and Warranties of the Sellers/
Servicers...................................................II-1
Schedule III: Representations and Warranties as to the Mortgage
Loans......................................................III-1
Schedule IV: MGIC PMI Mortgage Loans.....................................IV-1
Schedule V: Class III-A-1 and Class III-A-8 Aggregate Planned
Balance......................................................V-1
Schedule VI: Class III-A-10, Class III-A-11 and Class III-A-16
Aggregate Planned Balance...................................VI-1
Schedule VII: Class III-A-2, Class III-A-3, Class III-A-4 and
Class III-A-5 Aggregate Targeted Balance...................VII-1
Schedule VIII: Class III-A-12 and Class III-A-14 Aggregate Targeted
Balance...................................................VIII-1
Schedule IX: Class III-A-12 Targeted Balance.............................IX-1
THIS POOLING AND SERVICING AGREEMENT, dated as of May 1, 2001, is
hereby executed by and between CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware corporation, as depositor (the "Depositor"), DLJ Mortgage
Capital, Inc. ("DLJMC"), a Delaware corporation, as a seller (a "Seller"),
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP. ("WMMSC"), a Delaware corporation,
in its capacity as a seller (a "Seller") and in its capacity as a servicer (a
"Servicer"), GREENPOINT MORTGAGE FUNDING, INC. ("GreenPoint"), a New York
corporation, as a seller (a "Seller"), CHASE MANHATTAN MORTGAGE CORPORATION
("CMMC"), a New Jersey corporation, as a servicer (a "Servicer"), CALMCO
SERVICING L.P. ("Calmco"), a Delaware limited partnership, in its capacity as
the special servicer (the "Special Servicer"), Bank One, National Association,
a national banking association, as trustee (the "Trustee") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trust administrator (the
"Trust Administrator"). Capitalized terms used in this Agreement and not
otherwise defined will have the meanings assigned to them in Article I below.
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund (other than the
Class III-A-5 Rounding Account) for federal income tax purposes will consist
of four REMICs (the "Master REMIC", "REMIC 3", "REMIC 2" and the "Subsidiary
REMIC"). The Subsidiary REMIC will consist of all of the assets constituting
the Trust Fund and will be evidenced by the Class 1-I, Class 1-II, Class 1-III
and Class 1-IV Interests (the "Subsidiary REMIC Interests") which will be
uncertificated and will represent the "regular interests" in the Subsidiary
REMIC and the R-1 Interest as the single "residual interest" in the Subsidiary
REMIC. REMIC 2 will consist of the Subsidiary REMIC Regular Interests and will
be evidenced by the Class 2-I, Class 2-II, Class 2-III, Class 2-III-A-9 and
Class 2-IV Interests (the "REMIC 2 Regular Interests"). REMIC 3 will consist
of the REMIC 2 Regular Interests and will be evidenced by the Class 3-I-A-1,
Class 3-I-A-2, Class 3-I-A-3, Class 3-II-A-1, Class 3-II-A-2, Class 3-II-A-3,
Class 3-II-A-4, Class 3-II-A-5, Class 3-II-A-6, Class 3-II-A-7, Class
3-II-A-9, Class 3-III-A-1, Class 3-III-A-2, Class 3-III-A-3, Class 3-III-A-4,
Class 3-III-A-5, Class 3-III-A-6, Class 3-III-A-8, Class 3-III-A-9, Class
3-III-A-10, Class 3-III-A-11, Class 3-III-A-12, Class 3-III-A-14, Class
3-III-A-15, Class 3-III-A-16, Class 3-IV-A-1, Class 3-IV-A-3, Class 3-IV-A-4,
Class 3-IV-A-6, Class 3-A-P, Class 3-III-M, Class 3-C-B-1, Class 3-C-B-2,
Class 3-C-B-3, Class 3-C-B-4, Class 3-C-B-5, Class 3-C-B-6, Class
3-III-Accrual, Class 3-I-X, Class 3-II-X, Class 3-III-X and Class 3-IV-X (the
"REMIC 3 Regular Interests"). The Class 3-III-A-1, Class 3-III-A-2, Class
3-III-A-3, Class 3-III-A-4, Class 3-III-A-5, Class 3-III-A-6, Class 3-III-A-8,
Class 3-III-A-9, Class 3-III-A-10, Class 3-III-A-11, Class 3-III-A-12, Class
3-III-A-14, Class 3-III-A-15, Class 3-III-A-16 and Class 3-III-M Interests
will be the "REMIC 3 Accretion Directed Classes"). The Trustee will hold the
Subsidiary REMIC Regular Interests, REMIC 2 Regular Interests and the REMIC 3
Regular Interests. The Master REMIC will consist of the REMIC 3 Regular
Interests and will be evidenced by the Regular Certificates, the Group 1
Excess Interest Amount, the Group 2 Excess Interest Amount and the Group 4
Excess Interest (which will represent the "regular interests" in the Master
REMIC) and the MR Interest as the single "residual interest" in the Master
REMIC. The Class AR Certificates will represent beneficial ownership of the
R-1 Interest, R-2 Interest, R-3 Interest and the MR Interest. The "latest
possible maturity date" for federal income tax purposes of all interests
created hereby will be the Latest Possible Maturity Date.
The following table sets forth characteristics of the Certificates
and certain uncertificated "regular interests" in the Master REMIC, each of
which Certificates, except for the Class AR Certificates, is hereby designated
as a "regular interest" in the Master REMIC, together with the minimum
denominations and integral multiples in excess thereof in which such Classes
shall be issuable (except that one Certificate of each Class of Certificates
may be issued in a different amount and, in addition, one Residual Certificate
representing the Tax Matters Person Certificate may be issued in a different
amount):
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Class Integral Multiples
Principal Pass-Through Minimum in Excess of
Balance (per annum) Denomination Minimum
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Class I-A-1 $50,000,000.00(1) 6.75% $25,000 $1
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Class I-A-2 $8,333,333.00(1) 8.50% $25,000 $1
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Class I-A-3 $36,420,940.00 7.00% $25,000 $1
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Class II-A-1 $50,858,430.00(2) 6.50% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class II-A-2 $3,406,000.00 7.00% $1,000 $1
---------------------------------------------------------------------------------------------------------------------
Class II-A-3 $6,970,360.00 7.00% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class II-A-4 $100,000.00(2) 8.50% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class II-A-5 $2,950,000.00 7.00% $1,000 $1
---------------------------------------------------------------------------------------------------------------------
Class II-A-6 $2,300,000.00 7.00% $1,000 $1
---------------------------------------------------------------------------------------------------------------------
Class II-A-7 $1,526,000.00 7.00% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class II-A-8 $16,852,810.00(2)(3) Variable(4) $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class II-A-9 $16,852,810.00(2) Variable(5) $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-1 $100,144,000.00 6.25% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-2 $25,500,000.00 7.00% $1,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-3 $6,100,000.00 7.00% $1,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-4 $2,040,000.00 7.00% $1,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-5 $3,060,000.00 7.00% $1,000 $1,000
---------------------------------------------------------------------------------------------------------------------
Class III-A-6 $6,918,000.00 7.00% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-7 Notional(6) 7.00 % $25,000 $1
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Class III-A-8 $2,557,000.00 7.00% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-9 Notional(7) (8) $25,000 $1
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Class III-A-10 $25,258,700.00 6.25% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-11 $59,559,000.00 6.50% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-12 $50,207,800.00 6.50% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-13 Notional(9) 7.00 $25,000 $1
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Class III-A-14 $2,700,000.00 7.00% $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class III-A-15 $6,830,000.00 7.00% $25,000 $1
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Class III-A-16 $32,482,300.00 Variable(10) $25,000 $1
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Class III-A-17 $32,482,300.00(11) Variable(12) $25,000 $1
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Class IV-A-1 $29,999,999.00(13) Variable(14) $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class IV-A-2 $29,999,999.00(13)(15) Variable(16) $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class IV-A-3 $78,265,916.00(13) Variable(17) $25,000 $1
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Class IV-A-4 $3,280,785.00(13) (18) $25,000 $1
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Class IV-A-5 $78,265,916.00(13)(19) Variable(20) $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class IV-A-6 $1,600,000.00 8.25% $25,000 $1
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Class A-P $542,613.88 (18) $25,000 $1
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Class III-M $7,443,050.00 7.00% $25,000 $
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Class C-B-1 $3,623,130.00 Variable(21) $25,000 $1
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Class C -B-2 $2,113,490.00 Variable(21) $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class C-B-3 $1,509,640.00 Variable(21) $25,000 $1
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Class AR $100 7.00% (22) (22)
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Class C-B-4 $452,890.00 Variable(21) $25,000 $1
---------------------------------------------------------------------------------------------------------------------
Class C-B-5 $603,850.00 Variable(21) $25,000 $1
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Class C-B-6 $759,539.00 Variable(21) $25,000 $1
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Class III-X Notional(23) Variable(23) $25,000 $1
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Class I-X Regular Interest (24) (24) N/A N/A
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Class II-X Regular Interest (25) (25) N/A N/A
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Class 3-X Regular Interest (26) (26) N/A N/A
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Class IV-X Regular Interest (27) (27) N/A N/A
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(1) The Class Principal ___ Balances of the Class I-A-1 and Class I-A-2 ___
Certificates ___ will decrease proportionally as described in Section
4.01(A)(a)(iv)(B) of this Agreement.
(2) The Class Principal Balances (or in the case of the Class II-A-8
Certificates, the Class II-A-8 Notional Amount) of the Class II-A-1,
Class II-A-4, Class II-A-8 and Class II-A-9 Certificates will decrease
proportionally as described in Section 4.01(A)(b)(iv)(B) of this
Agreement.
(3) The Class II-A-8 Certificates shall accrue interest on the Class II-A-8
Notional Amount. The Class II-A-8 Certificates shall not receive any
distributions of principal.
(4) The initial Pass-Through Rate for the Class II-A-8 Certificates is
3.8225% per annum. After the first Distribution Date, the Pass-Through
Rate on the Class II-A-8 Certificates shall be a per annum rate equal to
the greater of (a) 8.0000% minus LIBOR per annum and (b) 0.0000% per
annum.
(5) The initial Pass-Through Rate for the Class II-A-9 Certificates is
4.6775% per annum. After the first Distribution Date, the Pass-Through
Rate on the Class II-A-9 Certificates shall be a per annum rate equal to
the lesser of (a) LIBOR plus 0.5000% per annum and (b) 8.5000% per annum.
(6) The Class III-A-7 Certificates shall accrue interest on the Class III-A-7
Notional Amount. The Class III-A-7 Certificates shall not receive any
distributions of principal.
(7) The Class III-A-9 Certificates shall accrue interest on the Class III-A-9
Notional Amount. The Class III-A-9 Certificates shall not receive any
distributions of principal.
(8) The Pass-Through Rate for the Class III-A-9 Certificates shall be a per
annum rate equal to (a) 8.5000% on each Distribution Date on or prior to
May 25, 2002, (b) 5.0000% on each Distribution Date beginning on June 25,
2002 and ending on November 25, 2003, and (c) 0.0000% on each
Distribution Date thereafter.
(9) The Class III-A-13 Certificates will accrue interest on the Class
III-A-13 Notional Amount. The Class III-A-13 Certificates shall not
receive any distributions of principal.
(10) The initial Pass-Through Rate for the Class III-A-16 Certificates
is 4.7275% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class III-A-16 Certificates shall be a per annum rate equal
to the lesser of (a) LIBOR plus 0.5500% per annum and (b) 8.500% per
annum.
(11) The Class III-A-17 Certificates shall accrue interest on the Class
III-A-17 Notional Amount. The Class III-A-17 Certificates shall not
receive any distributions of principal.
(12) The initial Pass-Through Rate for the Class III-A-17 Certificates is
3.7725% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class III-A-17 Certificates shall be a per annum rate equal
to the greater of (a) 7.9500% minus LIBOR per annum and (b) 0.0000% per
annum.
(13) The Class Principal Balances (or in the case of the Class IV-A-2 and
Class IV-A-5 Certificates, the Class IV-A-2 Notional Amount or Class
IV-A-5 Notional Amount, respectively) of the Class IV-A-1, Class IV-A-2,
Class IV-A-3, Class IV-A-4 and Class IV-A-5 Certificates, will decrease
proportionally as described in Section 4.01(A)(c)(iv)(B) of this
Agreement.
(14) The initial Pass-Through Rate for the Class IV-A-1 Certificates is
4.7275% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-A-1 Certificates shall be a per annum rate equal to
the lesser of (a) LIBOR plus 0.5500% per annum and (b) 8.5000% per annum.
(15) The Class IV-A-2 Certificates shall accrue interest on the Class
IV-A-2 Notional Amount. The Class IV-A-2 Certificates shall not receive
any distributions of principal.
(16) The initial Pass-Through Rate for the Class IV-A-2 Certificates is
3.7725% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-A-2 Certificates shall be a per annum rate equal to
the greater of (a) 7.9500% minus LIBOR per annum and (b) 0.0000% per
annum.
(17) The initial Pass-Through Rate for the Class IV-A-3 Certificates is
4.7775% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-A-3 Certificates shall be a per annum rate equal to
the lesser of (a) LIBOR plus 0.6000% per annum and (b) 8.5000% per annum.
(18) The Class IV-A-4 Certificates and Class A-P Certificates shall not be
entitled to payments in respect of interest.
(19) The Class IV-A-5 Certificates shall accrue interest on the Class IV-A-5
Notional Amount. The Class IV-A-5 Certificates shall not receive any
distributions of principal.
(20) The initial Pass-Through Rate for the Class IV-A-5 Certificates is
3.7225% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-A-5 Certificates shall be a per annum rate equal to
the greater of (a) 7.9000% minus LIBOR per annum and (b) 0.0000% per
annum.
(21) The initial Pass-Through Rate for each of the Class C-B-1, Class C-B-2,
Class C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6 Certificates is
approximately 7.48268% per annum. After the first Distribution Date, the
per Pass-Through Rate for each of the Class C-B-1, Class C-B-2, Class
C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6 Certificates shall be a
per annum rate equal to the quotient, expressed as percentage of (a) the
sum of (i) the product of (x) the Net WAC Rate of Loan Group I for that
Distribution Date and (y) the Subordinate Component Balance for Loan
Group I immediately prior to such Distribution Date, (ii) the Net WAC
Rate of Loan Group II for that Distribution Date and (y) the Subordinate
Component Balance for Loan Group II immediately prior to such
Distribution Date, and (iii) the product of the Net WAC Rate of Loan
Group IV for such Distribution Date and (y) the Subordinate Component
Balance for Loan Group IV immediately prior to such Distribution Date,
divided by (b) the aggregate of the Subordinate Component Balances for
Loan Group I, Loan Group II and Loan Group IV immediately prior to such
Distribution Date.
(22) The Class AR Certificates are issued in minimum Percentage Interests of
20%.
(23) The Class III-X Certificates shall receive all distributions of principal
and payments in respect of interest received by the Class I-X, Class
II-X, Class 3-X and Class IV-X Regular Interests.
(24) The Class I-X Regular Interest shall not have a principal balance, but
will be entitled to all principal distributions and payments in respect
of interest received by the Class 3-I-X Regular Interest.
(25) The Class II-X Regular Interest shall not have a principal balance, but
will be entitled to all principal distributions and payments in respect
of interest received by the Class 3-II-X Regular Interest.
(26) On each Distribution Date, the Class 3-X Regular Interest shall have a
notional balance equal to the principal balance of the Mortgage Loans in
Loan Group III determined as of the beginning of the Interest Accrual
Period for such Distribution Date and a pass-through rate equal to the
excess of: (i) the Group III Adjusted Net WAC Rate over (ii) the product
of: (A) two and (B) the weighted average pass-through rate of the REMIC 3
Regular Interests, where (i) the Class 3-III-Accrual Class is subject to
a cap equal to zero, (ii) the Class 3-III-A-2, Class 3-III-A-3, Class
3-III-A-4, Class 3-III-A-5, Class 3-III-A-6, Class 3-III-A-8, Class
3-III-A-10, Class 3-III-A-11, Class 3-III-A-14 and Class 3-III-A-15
Regular Interests are subject to a cap equal to the Pass-Through Rate on
their Corresponding Class or Classes, as the case may be, set forth in
this preliminary statement, and (iii) the Class 3-III-A-1 and Class
3-III-A-12 Regular Interests are subject to a cap equal to a rate equal
to the interest paid on their Corresponding Classes divided by the
principal balance of the Class 3-III-A-1 and Class 3-III-A-12 Regular
Interests, respectively, as set forth in this preliminary statement.
(27) The Class IV-X Regular Interest shall not have a principal balance, but
will be entitled to all principal distributions and payments in respect
of interest received by the Class 3-IV-X Regular Interest.
The entitlement to Group I Excess Interest Amounts, Group II Excess
Interest Amounts and Group IV Excess Interest Amounts are hereby designated as
"regular interests" in the Master REMIC for federal income tax purposes.
The entitlement to Group I Excess Interest Amounts, Group II Excess
Interest Amounts and Group IV Excess Interest Amounts are hereby designated as
"regular interests" in the Master REMIC for federal income tax purposes,
having notional balances as of any Distribution Date equal to: (i) the
aggregate principal balance of the Group I Mortgage Loans, (ii) the aggregate
principal balance of the Group II Mortgage Loans, and (iii) the aggregate
principal balance of the Group IV Mortgage Loans, respectively, and having
pass through rates equal to: (i) the excess of the weighted average of the Net
Mortgage Rates in respect of the Group I Mortgage Loans over 7.0000%, (ii) the
excess of the weighted average of the Net Mortgage Rates in respect of the
Group II Mortgage Loans over 7.0000%, and (iii) the excess of the weighted
average of the Net Mortgage Rates in respect of the Group IV Mortgage Loans
over 8.2500%, respectively.
The REMIC 3 Regular Interests, each of which is hereby designated a
REMIC regular interest for federal income tax purposes, shall have the
following principal balances, pass-through rates and Corresponding Classes of
Certificates in the manner set forth in the following table:
Class Pass-Through Allocation of Allocation of
Principal Balance Rate (per annum) Principal Interest
----------------- --------------- ------------- -------------
Class 3-I-A-1 $50,000,000.00 6.75% X-X-0 X-X-0
Class 3-I-A-2 $8,333,333.00 8.50% I-A-2 I-A-2
Class 3-I-A-3 $36,420,940.00 7.00% X-X-0 X-X-0
Class 3-II-A-1 $50,858,430.00 6.50% II-A-1 II-A-1
Class 3-II-A-2 $3,406,000.00 7.00% II-A-2 II-A-2
Class 3-II-A-3 $6,970,360.00 7.00% II-A-3 II-A-3
Class 3-II-A-4 $100,000.00 8.50% II-A-4 II-A-4
Class 3-II-A-5 $2,950,000.00 7.00% II-A-5 II-A-5
Class 3-II-A-6 $2,300,000.00 7.00% II-A-6 II-A-6
Class 3-II-A-7 $1,526,000.00 7.00% II-A-7 II-A-7
Class 3-II-A-9 $16,852,810.00 8.50% XX-X-0 XX-X-0, XX-X-0
Class 3-III-A-1 $50,720,000.00 (1) XXX-X-0 XXX-X-0, XXX-X-0
Class 3-III-A-2 $12,750,000.00 (1) III-A-2 III-A-2
Class 3-III-A-3 $3,050,000.00 (1) III-A-3 III-A-3
Class 3-III-A-4 $1,020,000.00 (1) III-A-4 III-A-4
Class 3-III-A-5 $1,530,000.00 (1) III-A-5 III-A-5
Class 3-III-A-6 $3,459,000.00 (1) III-A-6 III-A-6
Class 3-III-A-8 $1,278,500.00 (1) III-A-8 III-A-8
Class 3-III-A-9 Notional(2) (2) III-A-9 III-A-9
Class 3-III-A-10 $12,659,350.00 (1) III-A-10 III-A-10
Class 3-III-A-11 $29,779,500.00 (1) III-A-11 III-A-11
Class 3-III-A-12 $25,103,900.00 (1) III-A-12 III-A-12, III-A-13
Class 3-III-A-14 $1,350,000.00 (1) III-A-14 III-A-14
Class 3-III-A-15 $3,415,000.00 (1) III-A-15 III-A-15
Class 3-III-A-16 $16,241,500.00 (1) III-A-16 III-A-16, III-A-17
Class 3-III-Accrual (3) (1) N/A N/A
Class 3-IV-A-1 $29,999,999.00 8.50% XX-X-0 XX-X-0, XX-X-0
Class 3-IV-A-3 $78,265,916.00 8.50% IV-A-3 IV-A-3
Class 3-IV-A-4 $3,280,785.00 (4) XX-X-0 XX-X-0, XX-X-0
Class 3-IV-A-6 $1,600,000.00 8.25% IV-A-6 IV-A-6
Class 3-A-P $542,613.88 (4) A-P A-P
Class 3-III-M $7,443,050.00 7.00% III-M III-M
Class 3-C-B-1 $3,623,130.00 Variable(5) C-B-1 C-B-1
Class 3-C-B-2 $2,113,490.00 Variable(5) C-B-2 C-B-2
Class 3-C-B-3 $1,509,000.00 Variable(5) C-B-3 C-B-3
Class 3-C-B-4 $452,890.00 Variable(5) C-B-4 C-B-4
Class 3-C-B-5 $603,850.00 Variable(5) C-B-5 C-B-5
Class 3-C-B-6 $759,539.00 Variable(5) C-B-6 C-B-6
Class 3-I-X N/A Group I Excess Interest Amount
Class 3-II-X N/A Group II Excess Interest Amount
Class 3-IV-X N/A Group IV Excess Interest Amount
(1) The Group III Adjusted Net WAC Rate.
(2) The Class 3-III-A-9 Certificates shall accrue interest on the Class
3-III-A-9 Notional Amount. The Class 3-III-A-9 Certificates shall
not receive any distributions of principal. The Pass-Through Rate
for the Class 3-III-A-9 Certificates shall be a per annum rate equal
to (a) 8.5000% on each Distribution Date on or prior to May 25,
2002, (b) 5.0000% on each Distribution Date beginning on June 25,
2002 and ending on November 25, 2003, and (c) 0.0000% on each
Distribution Date thereafter.
(3) The Class 3-III-Accrual principal balance will equal the excess of
the Group III Mortgage Loans over the principal balance of all other
Group III REMIC 3 regular interest.
(4) The Class 3-IV-A-4 and Class 3-A-P Certificates shall not be
entitled to payments in respect of interest.
(5) The initial Pass-Through Rate for each of the Class 3-C-B-1, Class
3-C-B-2, Class 3-C-B-3, Class 3-C-B-4, Class 3-C-B-5 and Class
3-C-B-6 Certificates is approximately 7.48268% per annum. After the
first Distribution Date, the per Pass-Through Rate for each of the
Class 3-C-B-1, Class 3-C-B-2, Class 3-C-B-3, Class 3-C-B-4, Class
3-C-B-5 and Class 3-C-B-6 Certificates shall be a per annum rate
equal to the quotient, expressed as percentage of (a) the sum of (i)
the product of (x) the Net WAC Rate of Loan Group I for that
Distribution Date and (y) the Subordinate Component Balance for Loan
Group I immediately prior to such Distribution Date, (ii) the Net
WAC Rate of Loan Group II for that Distribution Date and (y) the
Subordinate Component Balance for Loan Group II immediately prior to
such Distribution Date, and (iii) the product of the Net WAC Rate of
Loan Group IV for such Distribution Date and (y) the Subordinate
Component Balance for Loan Group IV immediately prior to such
Distribution Date, divided by (b) the aggregate of the Subordinate
Component Balances for Loan Group I, Loan Group II and Loan Group IV
immediately prior to such Distribution Date.
On each Distribution Date, 50% of the increase in the
Overcollateralization Amount will be payable as a reduction of the principal
balances of the REMIC 3 Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralization
Amount that is attributable to a reduction in the principal balance of its
Corresponding Class) and will be accrued and added to the principal balance of
the Class 3-III-Accrual. All payments of scheduled principal and prepayments
of principal generated by the Mortgage Loans shall be allocated 50% to the
Class III-3-Accrual, and 50% to the REMIC 3 Accretion Directed Classes
(principal payments shall be allocated among such REMIC 3 Accretion Directed
Classes in an amount equal to 50% of the principal amounts allocated to their
respective Corresponding Classes), until paid in full. Notwithstanding the
above, the Overcollateralization Release Amounts shall be allocated to the
Class III-3-Accrual (until paid in full). Realized Losses shall be applied so
that after all distributions have been made on each Distribution Date (i) the
principal balances of each of the REMIC 3 Accretion Directed Classes is equal
to 50% of the principal balance of their Corresponding Class, and (ii) the
Class III-3-Accrual is equal to 50% of the aggregate principal balance of the
Mortgage Loans in Group III plus 50% of the Overcollateralization Amount.
On each Distribution Date, each REMIC 3 Regular Interest, except for
the REMIC 3 Accretion Directed and 3-Accrual Classes, will have a principal
balance, or notional balance as applicable, and pass through rate equal to
that of its Corresponding Master REMIC Class following the application of
scheduled payments of principal, prepayments and Realized Losses. The Class
3-III-A-9 Interest will have a notional balance equal to the principal balance
of the Class 2-III-A-9 Interest on each Distribution Date.
The REMIC 2 Regular Interests, each of which is hereby designated a
REMIC regular interest for federal income tax purposes, shall have the
following principal balances, pass-through rates and Corresponding Classes of
Certificates in the manner set forth in the following table:
----------------------------- ---------------------- -------------------------------------------------------------------------
Class Principal Balance Pass Through Rate
----------------------------- ---------------------- -------------------------------------------------------------------------
2-I $97,844,976.57 Weighted average of the Net Mortgage Rates in respect of the Group I
Mortgage Loans
----------------------------- ---------------------- -------------------------------------------------------------------------
Weighted average of the Net Mortgage Rates in respect of the Group II
2-II $85,595,256.42 Mortgage Loans
----------------------------- ---------------------- -------------------------------------------------------------------------
Weighted average of the Net Mortgage Rates in respect of the Group III
2-III $297,799,863.20 Mortgage Loans
----------------------------- ---------------------- -------------------------------------------------------------------------
2-III-A-9 $33,000,000.00 Weighted average of the Net Mortgage Rates in respect of the Group III
Mortgage Loans
----------------------------- ---------------------- -------------------------------------------------------------------------
2-IV $117,029,593.30 Weighted average of the Net Mortgage Rates in respect of the Group IV
Mortgage Loans
----------------------------- ---------------------- -------------------------------------------------------------------------
For any Distribution Date, the principal will be paid to the Class
3-III-A-9 Interest so that the principal balance of such interests equals a
fraction, (i) the numerator of which is the excess of the Interest Remittance
Amount for Loan Group III over the sum of (a) the Current Interest for the
Group III Certificates (other than the Class III-A-9 Certificates) and (b) the
Carryforward Interest for the Group III Certificates (other than the Class
III-A-9 Certificates) and (ii) the denominator of which is an amount equal to
the product of (a) 1/12 and (b) the pass-through rate of the Class III-A-9
Certificates for such Distribution Date. Provided, however, that for any
Distribution Date the Class 3-III-A-9 principal balance shall neither be
greater than the its principal balance for the prior Distribution Date nor
less than zero.
For any Distribution Date, following the allocation of scheduled
principal, curtailments, prepayments and Realized Losses, the principal
balances of the Class 2-I, 2-II, 2-III, 2-III-A-9 and 2-IV Interests will
equal the (i) the aggregate principal balance of the Group I Mortgage Loans,
(ii) the aggregate principal balance of the Group II Mortgage Loans, (iii) the
aggregate principal balance of the Group III Mortgage Loans less the principal
balance of the Class 2-III-A-9 Interests, (iv) the principal balance of the
Class 2-III-A-9 and (v) the aggregate principal balance of the Group IV
Mortgage Loans, respectively.
The Subsidiary REMIC Regular Interests, each of which is hereby
designated a REMIC regular interest for federal income tax purposes, shall
have the following principal balances, pass-through rates and Corresponding
Classes of Certificates in the manner set forth in the following table:
----------------------------- ---------------------- --------------------------------------------------------------
Class Principal Balance Pass Through Rate
----------------------------- ---------------------- --------------------------------------------------------------
1-I $97,844,976.57 Weighted average of the Net Mortgage Rates in respect of the
Group I Mortgage Loans
----------------------------- ---------------------- --------------------------------------------------------------
Weighted average of the Net Mortgage Rates in respect of the
1-II $85,595,256.42 Group II Mortgage Loans
----------------------------- ---------------------- --------------------------------------------------------------
Weighted average of the Net Mortgage Rates in respect of the
1-III $330,799,863.20 Group III Mortgage Loans
----------------------------- ---------------------- --------------------------------------------------------------
1-IV $117,029,593.30 Weighted average of the Net Mortgage Rates in respect of the
Group IV Mortgage Loans
----------------------------- ---------------------- --------------------------------------------------------------
For any Distribution Date, following the allocation of scheduled
principal, curtailments, prepayments and Realized Losses, the principal
balances of the Class 1-I, 1-II, 1-III and 1-IV Interests will equal the (i)
the aggregate principal balance of the Group I Mortgage Loans, (ii) the
aggregate principal balance of the Group II Mortgage Loans, (iii) the
aggregate principal balance of the Group III Mortgage Loans, and (iv) the
aggregate principal balance of the Group IV Mortgage Loans, respectively.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Accrual Certificates.................. The Class III-A-6, Class III-A-14 and Class III-A-15
Certificates.
Book-Entry Certificates............... All Classes of Certificates other than the Physical
Certificates.
Class A Certificates:................. The Class I-A-1, Class I-A-2, Class I-A-3, Class II-A-1,
Class II-A-2, Class II-A-3, Class II-A-4, Class II-A-5,
Class II-A-6, Class II-A-7, Class II-A-8, Class II-A-9,
Class III-A-1, Class III-A-2, Class III-A-3,
Class III-A-4, Class III-A-5, Class III-A-6,
Class III-A-7, Class III-A-8, Class III-A-9,
Class III-A-10, Class III-A-11, Class III-A-12,
Class III-A-13, Class III-A-14, Class III-A-15,
Class III-A-16, Class III-A-17, Class IV-A-1,
Class IV-A-2, Class IV-A-3, Class IV-A-4, Class IV-A-5,
Class IV-A-6 and Class AR Certificates.
Class M Certificates.................. The Class III-M Certificates.
Class B Certificates.................. The Class C-B-1, Class C-B-2, Class C-B-3, Class C-B-4,
Class C-B-5 and Class C-B-6 Certificates.
ERISA-Restricted Certificates........ The Residual Certificates; the Private Certificates; and
any Certificates that do not satisfy the applicable
ratings requirement under the Underwriter's Exemption.
Group I Certificates: .............. The Class I-A-1, Class I-A-2 and Class III-A-3
Certificates.
Group II Certificates: ............... The Class II-A-1, Class II-A-2, Class II-A-3, Class
II-A-4, Class II-A-5, Class II-A-6, Class II-A-7, Class
II-A-8 and Class II-A-9 Certificates.
Group III Certificates: ............. The Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4, Class III-A-5, Class III-A-6, Class III-A-7,
Class III-A-8, Class III-A-9, Class III-A-10, Class
III-A-11, Class III-A-12, Class III-A-13, Class
III-A-14, Class III-A-15, Class III-A-16 and Class
III-A-17 Certificates.
Group IV Certificates: ............... The Class IV-A-1, Class IV-A-2, Class IV-A-3, Class
IV-A-4, Class IV-A-5 and Class IV-A-6 Certificates.
Group C-B Certificates................ The Class C-B-1, Class C-B-2, Class C-B-3, Class C-B-4,
Class C-B-5 and Class C-B-6 Certificates.
Class A-P Certificates................ The Class A-P Certificates.
Notional Amount Certificates.......... The Class II-A-8, Class III-A-7, Class III-A-9, Class
III-A-13, Class III-A-17 and Class III-X Certificates.
LIBOR Certificates:................... The Class II-A-8, Class II-A-9, Class III-A-17, Class
IV-A-1, Class IV-A-2, Class IV-A-3 and Class IV-A-5
Certificates.
Offered Certificates.................. All Classes of Certificates other than the Private
Certificates.
Private Certificates.................. Class C-B-4, Class C-B-5, Class C-B-6 and Class III-X
Certificates.
Physical Certificates................. Class AR and the Private Certificates.
Planned Principal Classes............. The Class III-A-1, Class III-A-8, Class III-A-10, Class
III-A-11 and Class III-A-16 Certificates.
Rating Agencies....................... Xxxxx'x and S&P.
Regular Certificates.................. All Classes of Certificates other than the Class AR
Certificates.
Residual Certificates................. Class AR Certificates.
Senior Certificates................... Class A Certificates.
Subordinate Certificates.............. Class M, Class B and Class III-X Certificates.
Targeted Principal Classes............ The Class III-A-2, Class III-A-3, Class III-A-4, Class
III-A-5, Class III-A-12 and Class III-A-14 Certificates.
All covenants and agreements made by the Depositor herein are for
the benefit and security of the Certificateholders. The Depositor is entering
into this Agreement, and the Trustee is accepting the trusts created hereby
and thereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged. The principal balance of the Mortgage Loans
as of the Cut-off Date is $633,269,689.
The parties hereto intend to effect an absolute sale and assignment
of the Mortgage Loans to the Trustee for the benefit of Certificateholders
under this Agreement. However, the Depositor, DLJMC, GreenPoint and WMMSC will
hereunder absolutely assign and, as a precautionary matter grant a security
interest, in and to its rights, if any, in the related Mortgage Loans to the
Trustee on behalf of Certificateholders to ensure that the interest of the
Certificateholders hereunder in the Mortgage Loans is fully protected.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicers, the Sellers, the Special Servicer, the Trustee and
the Trust Administrator agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Period: For any interest bearing Class of Certificates other
than the LIBOR Certificates and any Distribution Date, the calendar month
immediately preceding the related Distribution Date, and with respect to the
LIBOR Certificates, the period beginning on the immediately preceding
Distribution Date (or the Closing Date, in the case of the first Accrual
Period) and ending on the day immediately preceding the related Distribution
Date.
Advance: The payment required to be made by a Servicer with respect
to any Distribution Date pursuant to Section 5.01.
Adverse REMIC Event: As defined in Section 2.07(f).
Aggregate Loan Balance: As of any date of determination will be
equal to the aggregate of the Stated Principal Balances of the Mortgage Loans
as of the last day of the prior month.
Aggregate Loan Group Balance: As to any Loan Group and as of any
date of determination will be equal to the aggregate of the Stated Principal
Balances of the Mortgage Loans in that Loan Group as of the last day of the
prior month.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans, other
than Servicing Fees, including but not limited to, late charges, Prepayment
Penalties, prepayment fees, fees received with respect to checks or bank
drafts returned by the related bank for non-sufficient funds, assumption fees,
optional insurance administrative fees and all other incidental fees and
charges.
Applied Loss Amount: As to any Distribution Date, with respect to
the Group III Certificates, the excess, if any, of (i) the aggregate Class
Principal Balances of the Group III Certificates (other than the related
Notional Amount Certificates), after giving effect to all Realized Losses with
respect to the Mortgage Loans in Loan Group III during the Collection Period
for such Distribution Date and payments of principal on such Distribution Date
over (ii) the Aggregate Loan Group Balance for Loan Group III for such
Distribution Date.
Appraised Value: The appraised value of the Mortgaged Property based
upon the appraisal made for the originator at the time of the origination of
the related Mortgage Loan or the sales price of the Mortgaged Property at the
time of such origination, whichever is less, or with respect to any Mortgage
Loan that represents a refinancing, the lower of the appraised value at
origination or the appraised value of the Mortgaged Property based upon the
appraisal made at the time of such refinancing.
Assignment and Assumption Agreement: That certain assignment and
assumption agreement dated as of May 1, 2001, by and between DLJ Mortgage
Capital, Inc., as assignor and the Depositor, as assignee, relating to the
Mortgage Loans.
Available Distribution Amount: With respect to any Distribution Date
and each Loan Group, the sum of: (i) all amounts in respect of Scheduled
Payments (net of the related Servicing Fees) due on the Due Date in the month
in which such Distribution Date occurs and received prior to the related
Determination Date on the related Mortgage Loans, together with any Monthly
Advances in respect thereof; (ii) all Insurance Proceeds (to the extent not
applied to the restoration of the Mortgaged Property or released to the
Mortgagor in accordance with the applicable Servicer's Accepted Servicing
Standards), all proceeds under the MGIC PMI Policy and all Liquidation
Proceeds received during the calendar month preceding the month of that
Distribution Date on the related Mortgage Loans, in each case net of
unreimbursed Liquidation Expenses incurred with respect to such Mortgage
Loans; (iii) all Principal Prepayments received during the related Prepayment
Period on the related Mortgage Loans, excluding prepayment penalties and
premiums; (iv) amounts received with respect to such Distribution Date as the
Substitution Adjustment Amount or purchase price in respect of a Mortgage Loan
in the related Loan Group repurchased by the applicable Seller or a Servicer
as of such Distribution Date reduced by amounts in reimbursement for Monthly
Advances previously made and other amounts as to which the Servicer is
entitled to be reimbursed pursuant to Section 3.08 in respect of the related
Mortgage Loans or otherwise, and (v) any amounts payable as Compensating
Interest by a Servicer with respect to the related Mortgage Loans on such
Distribution Date.
Balloon Loan: Any Mortgage Loan which, by its terms, does not fully
amortize the principal balance thereof by its stated maturity and this
requires a payment at the stated maturity larger than the monthly payments due
thereunder.
Bankruptcy Code: The United States Bankruptcy Code, as amended from
time to time (11 U.S.C.).
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: A Deficient Valuation or Debt Service Reduction;
provided, however, that a Bankruptcy Loss shall not be deemed a Bankruptcy
Loss hereunder so long as the related Servicer has notified the Trustee and
the Trust Administrator in writing that such Servicer is diligently pursuing
any remedies that may exist in connection with the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any related escrow payments in respect of such
Mortgage Loan are being advanced on a current basis by the related Servicer,
in either case without giving effect to any Debt Service Reduction or
Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss
Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to the Group I Certificates, the Group II Certificates and the Group
IV Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trust Administrator to the effect that any such reduction will
not result in a downgrading of, or otherwise adversely affect, the then
current ratings assigned to such Classes of Certificates rated by it.
Beneficial Holder: A Person holding a beneficial interest in any
Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate.
Book-Entry Certificates: As specified in the Preliminary Statement.
Book-Entry Form: Any Certificate held through the facilities of the
Depository.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in New York or the state in which any
Servicer or the Corporate Trust Office of the Trustee or Trust Administrator
are located are authorized or obligated by law or executive order to be
closed.
Calmco: Calmco Servicing L.P., a Delaware limited partnership, and
its successors and assigns.
Carryforward Interest: For any Class of Offered Certificates and
Distribution Date, the sum of (1) the amount, if any, by which (x) the sum of
(A) Current Interest for such Class for the immediately preceding Distribution
Date and (B) any unpaid Carryforward Interest for such Class from previous
Distribution Dates exceeds (y) the amount paid in respect of interest on such
Class on such immediately preceding Distribution Date, and (2) interest on
such amount for the related Accrual Period at the applicable Pass-Through
Rate.
Certificate: Any Certificates executed and authenticated by the
Trust Administrator on behalf of the Trustee for the benefit of the
Certificateholders in substantially the form or forms attached as Exhibits A
through F hereto.
Certificate Account: The separate Eligible Account created and
maintained with the Trust Administrator, or any other bank or trust company
acceptable to the Rating Agencies which is incorporated under the laws of the
United States or any state thereof pursuant to Section 3.05, which account
shall bear a designation clearly indicating that the funds deposited therein
are held in trust for the benefit of the Trust Administrator, as agent for the
Trustee, on behalf of the Certificateholders or any other account serving a
similar function acceptable to the Rating Agencies. Funds in the Certificate
Account may (i) be held uninvested without liability for interest or
compensation thereon or (ii) be invested at the direction of the Trust
Administrator in Eligible Investments and reinvestment earnings thereon (net
of investment losses) shall be paid to the Trust Administrator. Funds
deposited in the Certificate Account (exclusive of the amounts permitted to be
withdrawn pursuant to Section 3.08(b)) shall be held in trust for the
Certificateholders.
Certificate Balance: With respect to any Certificate at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof minus
all distributions of principal and allocations of Realized Losses, including
Excess Losses or Applied Loss Amounts, as applicable, previously made or
allocated with respect thereto; in the case of any Subordinate Certificates,
reduced by any amounts allocated to that Certificate in reduction of its Class
Principal Balance for payment of Class A-P Deferred Amounts or any Applied
Loss Amounts allocated to such Class on prior Distribution Dates pursuant to
Section 4.02; and, with respect to the Class III-A-6, Class III-A-14 and Class
III-A-15 Certificates, increased by the Class III-A-6 Accrual Amount, Class
III-A-14 Accrual Amount or Class III-A-15 Accrual Amount, as applicable, added
to that Certificate on each Distribution Date prior to such date.
Certificate Group: Any of Certificate Group I, Certificate Group II,
Certificate Group III, Certificate Group IV or Certificate Group C-B, as
applicable.
Certificate Group I: Any of the Certificates with a Class
designation beginning with "I" and relating to Loan Group I.
Certificate Group II: Any of the Certificates with a Class
designation beginning with "II" and relating to Loan Group II.
Certificate Group III: Any of the Certificates with a Class
designation beginning with "III" and relating to Loan Group III.
Certificate Group IV: Any of the Certificates with a Class
designation beginning with "IV" and relating to Loan Group IV.
Certificate Group C-B: Any of the Certificates with a Class
designation beginning with "C-B" and relating to Loan Group I, Loan Group II
and Loan Group IV.
Certificate Index: With respect to each Distribution Date and the
LIBOR Certificates, the rate for one month United States dollar deposits
quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the related
Interest Determination Date relating to each Class of LIBOR Certificates. If
such rate does not appear on such page (or such other page as may replace that
page on that service, or if such service is no longer offered, such other
service for displaying LIBOR or comparable rates as may be reasonably selected
by the Trust Administrator), the rate will be the Reference Bank Rate. If no
such quotations can be obtained and no Reference Bank Rate is available, the
Certificate Index will be the Certificate Index applicable to the preceding
Distribution Date. On the Interest Determination Date immediately preceding
each Distribution Date, the Trust Administrator shall determine the
Certificate Index for the Accrual Period commencing on such Distribution Date
and inform each Servicer of such rate.
Certificate Insurance Policy: The irrevocable Certificate Guaranty
Insurance Policy, No. 51104-N, including any endorsements thereto, issued by
FSA with respect to the Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 and Class III-A-5 Certificates, in the form attached hereto as Exhibit
R.
Certificate Insurance Policy Payments Account: As defined in Section
4.03(c).
Certificate Insurer: FSA, as issuer of the Certificate Insurance
Policy.
Certificate Register: The register maintained pursuant to Section
6.02(a) hereof.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, and, with respect to the Class
III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 and Class III-A-5
Certificates, FSA to the extent of any amount paid under the Certificate
Insurance Policy.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary Statement.
Class A-P Certificates: As specified in the Preliminary Statement.
As such term is used herein, the Class A-P Certificates are "related" to the
Class I-P Mortgage Loans, Class II-P Mortgage Loans and Class IV-P Mortgage
Loans.
Class A-P Deferred Amounts: As of any date of determination, the
amount required to be paid to the holders of the Class A-P Certificates
pursuant to clause Section 4.02.
Class B Certificates. As specified in the Preliminary Statement.
Class I-P Fraction: With respect to each Class I-P Mortgage Loan, a
fraction, the numerator of which is 7.0% minus the Net Mortgage Rate on that
Class I-P Mortgage Loan and the denominator of which is 7.0%%.
Class I-P Mortgage Loans: The Group I Mortgage Loans having Net
Mortgage Rates less than 7.0%% per annum.
Class I-P Principal Distribution Amount: For each Distribution Date,
an amount equal to the Class I-P Fraction of the sum of (i) scheduled
principal due (whether or not received) on the related Due Date and (ii)
unscheduled collections of principal received (including Net Liquidation
Proceeds allocable to principal) and constituting a part of the Available
Distribution Amount for Loan Group I for that Distribution Date, in each case,
on or in respect of a Class I-P Mortgage Loan for that Distribution Date.
Class II-A-3 Adjusted Percentage: For any Distribution Date
occurring (i) before June 2006, 0% and (ii) in or after June 2006, the Class
II-A-3 Percentage for that Distribution Date.
Class II-A-3 Liquidation Amount: For any Distribution Date, the
aggregate, for each Group II Mortgage Loan that became a Liquidated Mortgage
Loan during the calendar month preceding the month of that Distribution Date,
of the lesser of (i) the Class II-A-3 Adjusted Percentage of the Stated
Principal Balance of that Mortgage Loan (exclusive of the Class II-P Fraction
of that balance, for any Class II-P Mortgage Loan) and (ii) the Class II-A-3
Adjusted Percentage of the Liquidation Principal for that Mortgage Loan.
Class II-A-3 Percentage: For any Distribution Date will equal the
lesser of (a) 100% and (b) the Class Principal Balance of the Class II-A-3
Certificates divided by the aggregate Stated Principal Balance of the Group II
Mortgage Loans (less the Class Principal Balance of the Class A-P
Certificates), in each case immediately prior to any allocations of losses or
distributions on that Distribution Date.
Class II-A-3 Prepayment Percentage: For any Distribution Date, the
product of (a) the Class II-A-3 Percentage and (b) the Stepdown Percentage.
Class II-A-3 Priority Amount: For any Distribution Date, the sum of
(i) the Class II-A-3 Adjusted Percentage of the Principal Payment Amount
(exclusive of the portion attributable to the Class II-P Principal
Distribution Amount), (ii) the Class II-A-3 Prepayment Percentage of the
Principal Prepayment Amount (exclusive of the portion attributable to the
Class II-P Principal Distribution Amount) and (iii) the Class II-A-3
Liquidation Amount.
Class III-A-5 Rounding Account: The separate Eligible Account
established and maintained by the Trust Administrator pursuant to Section 4.07
in the name of the Trust Administrator for the benefit of the Class III-A-5
Certificateholders and designated "The Chase Manhattan Bank in trust for
registered holders of Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-11." Funds in the Class
III-A-5 Rounding Account shall be held in trust for the Class III-A-5
Certificateholders for the uses and purposes set forth in this Agreement. The
Class III-A-5 Rounding Account will not be a part of the Trust Fund or any
REMIC created hereunder.
Class III-A-5 Rounding Amount: With respect to any Distribution
Date, the amount, if any, required to be withdrawn from the Class III-A-5
Rounding Account pursuant to Section 4.07.
Class II-A-7 Adjusted Percentage: For any Distribution Date
occurring (i) before June 2006, 0% and (ii) in or after June 2006, the Class
II-A-7 Percentage for that Distribution Date.
Class II-A-7 Liquidation Amount: For any Distribution Date, the
aggregate, for each Group II Mortgage Loan that became a Liquidated Mortgage
Loan during the calendar month preceding the month of that Distribution Date,
of the lesser of (i) the Class II-A-7 Adjusted Percentage of the Stated
Principal Balance of that Mortgage Loan (exclusive of the Class II-P Fraction
of that balance, for any Class II-P Mortgage Loan) and (ii) the Class II-A-7
Adjusted Percentage of the Liquidation Principal for that Mortgage Loan.
Class II-A-7 Percentage: For any Distribution Date will equal the
lesser of (a) 100% and (b) the Class Principal Balance of the Class II-A-7
Certificates divided by the aggregate Stated Principal Balance of the Group II
Mortgage Loans (less the Class Principal Balance of the Class A-P
Certificates), in each case immediately prior to any allocations of losses or
distributions on that Distribution Date.
Class II-A-7 Prepayment Percentage: For any Distribution Date, the
product of (a) the Class II-A-7 Percentage and (b) the Stepdown Percentage.
Class II-A-7 Priority Amount: For any Distribution Date, the sum of
(i) the Class II-A-7 Adjusted Percentage of the Principal Payment Amount
(exclusive of the portion attributable to the Class II-P Principal
Distribution Amount), (ii) the Class II-A-7 Prepayment Percentage of the
Principal Prepayment Amount (exclusive of the portion attributable to the
Class II-P Principal Distribution Amount) and (iii) the Class II-A-7
Liquidation Amount.
Class II-A-8 Notional Amount: For any Distribution Date, the Class
Principal Balance of the Class II-A-9 Certificates immediately before that
Distribution Date.
Class II-P Fraction: With respect to each Class II-P Mortgage Loan,
a fraction, the numerator of which is 7.0%% minus the Net Mortgage Rate on
that Class II-P Mortgage Loan and the denominator of which is 7.0%.
Class II-P Mortgage Loans: The Group II Mortgage Loans having Net
Mortgage Rates less than 7.0% per annum.
Class II-P Principal Distribution Amount: For each Distribution
Date, an amount equal to the Class II-P Fraction of the sum of (i) scheduled
principal due (whether or not received) on the related Due Date and (ii)
unscheduled collections of principal received (including Net Liquidation
Proceeds allocable to principal) and constituting a part of the Available
Distribution Amount for Loan Group II for that Distribution Date, in each
case, on or in respect of a Class II-P Mortgage Loan for that Distribution
Date.
Class III-A-6 Accretion Termination Date: The earlier to occur of
(i) the Distribution Date on which the Class Principal Balance of the Class
III-A-5 Certificates has been reduced to zero and (ii) the Credit Support
Depletion Date.
Class III-A-6 Accrual Amount: On each Distribution Date on or before
the Class III-A-6 Accretion Termination Date, an amount equal to the accrued
interest that would otherwise be distributable in respect of the Class III-A-6
Certificates on that Distribution Date. On any Distribution Date which is also
the Class III-A-6 Accretion Termination Date, any Class III-A-6 Accrual Amount
not required to reduce the Class III-A-5 Certificates to zero will be payable,
as interest, to the holders of the Class III-A-6 Certificates; provided,
however, that if the Class III-A-6 Accretion Termination Date is also the
Credit Support Depletion Date, the entire Class III-A-6 Accrual Amount for
that date will be payable as interest to the holders of the Class III-A-6
Certificates.
Class III-A-7 Notional Amount: For any Distribution Date, the
product of (i) the Class Principal Balance of the Class III-A-1 Certificates
and (ii) a fraction, the numerator of which is 0.75 and the denominator of
which is 7.00.
Class III-A-9 Notional Amount: For the Distribution Date in June
2001, the Class III-A-9 Notional Amount shall be an amount equal to
$33,000,000. For any Distribution Date following the Distribution Date in June
2001 but on or prior to November 25,2003, if the Class III-A-9 Notional Amount
Adjustment Amount is less than the Class III-A-9 Notional Amount for the prior
Distribution Date, the Class III-A-9 Notional Amount shall be reduced to the
Class III-A-9 Notional Amount Adjustment Amount for the current Distribution
Date. For any Distribution Date after November 25, 2003, the Class III-A-9
Notional Amount shall be equal to $0.
Class III-A-9 Notional Amount Adjustment Amount: For any
Distribution Date, the amount equal to the greater of (i) a fraction, (a) the
numerator of which is the excess of the Interest Remittance Amount for the
Mortgage Loans in Loan Group III over the sum of (1) the Current Interest for
the Group III Certificates (other than the Class III-A-9 Certificates) and (2)
the Carryforward Interest for the Group III Certificates (other than the Class
III-A-9 Certificates) and (b) the denominator of which is an amount equal to
the product of (1) 1/12 and (2) the Pass-Through Rate of the Class III-A-9
Certificates for such Distribution Date and (ii) zero.
Class III-A-13 Notional Amount: For any Distribution Date, the
product of (i) the Class Principal Balance of the Class III-A-12 Certificates
and (ii) a fraction, the numerator of which is 0.50 and the denominator of
which is 7.00.
Class III-A-14 Accretion Termination Date: The earlier to occur of
(i) the Distribution Date on which the Class Principal Balance of the Class
III-A-12 Certificates has been reduced to zero and (ii) the Credit Support
Depletion Date.
Class III-A-14 Accrual Amount: On each Distribution Date on or
before the Class III-A-14 Accretion Termination Date, an amount equal to the
accrued interest that would otherwise be distributable in respect of the Class
III-A-14 Certificates on that Distribution Date. On any Distribution Date
which is also the Class III-A-14 Accretion Termination Date, any Class
III-A-14 Accrual Amount not required to reduce the Class III-A-12 Certificates
to zero will be payable, as interest, to the holders of the Class III-A-14
Certificates; provided, however, that if the Class III-A-14 Accretion
Termination Date is also the Credit Support Depletion Date, the entire Class
III-A-14 Accrual Amount for that date will be payable as interest to the
holders of the Class III-A-14 Certificates.
Class III-A-15 Accretion Termination Date: The earlier to occur of
(i) the Distribution Date on which the Class Principal Balance of the Class
III-A-14 Certificates has been reduced to zero and (ii) the Credit Support
Depletion Date.
Class III-A-15 Accrual Amount: On each Distribution Date on or
before the Class III-A-15 Accretion Termination Date, an amount equal to the
accrued interest that would otherwise be distributable in respect of the Class
III-A-15 Certificates on that Distribution Date. On any Distribution Date
which is also the Class III-A-15 Accretion Termination Date, any Class
III-A-15 Accrual Amount not required to reduce the Class III-A-14 Certificates
to zero will be payable, as interest, to the holders of the Class III-A-15
Certificates; provided, however, that if the Class III-A-15 Accretion
Termination Date is also the Credit Support Depletion Date, the entire Class
III-A-15 Accrual Amount for that date will be payable as interest to the
holders of the Class III-A-15 Certificates.
Class III-A-17 Notional Amount: For any Distribution Date, the Class
Principal Balance of the Class III-A-16 Certificates immediately before that
Distribution Date.
Class III-M Principal Payment Amount: For any Distribution Date on
or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the Class Principal Balance of the Group III Senior
Certificates after giving effect to payments on such Distribution Date and
(ii) the Class Principal Balance of the Class III-M Certificates immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i) 99% and (ii) the Aggregate Loan Group Balance for Loan Group III for such
Distribution Date and (B) the amount, if any, by which (i) the Aggregate Loan
Group Balance for Loan Group III for such Distribution Date exceeds (ii) 0.50%
of the Aggregate Loan Group Balance for Loan Group III as of the Cut-off Date.
Class III-X Distributable Amount: With respect to any Distribution
Date and the Class III-X Certificates, the sum of (i) the amount of interest
accrued during the related Accrual Period at the related Pass-Through Rate on
the Class Notional Amount for such Distribution Date and (ii) the
Overcollateralization Release Amount, if any, for such Distribution Date.
Class IV-A-2 Notional Amount: For any Distribution Date, the Class
Principal Balance of the Class IV-A-1 Certificates immediately before that
Distribution Date.
Class IV-A-5 Notional Amount: For any Distribution Date, the Class
Principal Balance of the Class IV-A-3 Certificates immediately before that
Distribution Date.
Class IV-A-6 Adjusted Percentage: For any Distribution Date
occurring (i) before June 2006, 0% and (ii) in or after June 2006, the Class
IV-A-6 Percentage for that Distribution Date.
Class IV-A-6 Liquidation Amount: For any Distribution Date, the
aggregate, for each Group IV Mortgage Loan that became a Liquidated Mortgage
Loan during the calendar month preceding the month of that Distribution Date,
of the lesser of (i) the Class IV-A-6 Adjusted Percentage of the Stated
Principal Balance of that Mortgage Loan (exclusive of the Class IV-P Fraction
of that balance, for any Class IV-P Mortgage Loan) and (ii) the Class IV-A-6
Adjusted Percentage of the Liquidation Principal for that Mortgage Loan.
Class IV-A-6 Percentage: For any Distribution Date will equal the
lesser of (a) 100% and (b) the Class Principal Balance of the Class IV-A-6
Certificates divided by the aggregate Stated Principal Balance of the Group IV
Mortgage Loans (less the Class Principal Balance of the Class A-P
Certificates), in each case immediately prior to any allocations of losses or
distributions on that Distribution Date.
Class IV-A-6 Prepayment Percentage: For any Distribution Date, the
product of (a) the Class IV-A-6 Percentage and (b) the Stepdown Percentage.
Class IV-A-6 Priority Amount: For any Distribution Date, the sum of
(i) the Class IV-A-6 Adjusted Percentage of the Principal Payment Amount
(exclusive of the portion attributable to the Class IV-P Principal
Distribution Amount), (ii) the Class IV-A-6 Prepayment Percentage of the
Principal Prepayment Amount (exclusive of the portion attributable to the
Class IV-P Principal Distribution Amount) and (iii) the Class IV-A-6
Liquidation Amount.
Class IV-P Fraction: With respect to each Class IV-P Mortgage Loan,
a fraction, the numerator of which is 8.25% minus the Net Mortgage Rate on
that Class IV-P Mortgage Loan and the denominator of which is 8.25%.
Class IV-P Mortgage Loans: The Group IV Mortgage Loans having Net
Mortgage Rates less than 8.25% per annum.
Class IV-P Principal Distribution Amount: For each Distribution
Date, an amount equal to the Class IV-P Fraction of the sum of (i) scheduled
principal due (whether or not received) on the related Due Date and (ii)
unscheduled collections of principal received (including Net Liquidation
Proceeds allocable to principal) and constituting a part of the Available
Distribution Amount for Loan Group IV for that Distribution Date, in each
case, on or in respect of a Class IV-P Mortgage Loan for that Distribution
Date.
Class Interest Shortfall: As to any Distribution Date and Class of
Group I Certificates, Group II Certificates and Group IV Certificates, the
amount by which the amount described in clause (i) of the definition of
Interest Distribution Amount for such Class, exceeds the amount of interest
actually distributed on such Class on such Distribution Date.
Class Notional Amount: Any of the Class II-A-8 Notional Amount,
Class III-A-7 Notional Amount, Class III-A-9 Notional Amount, Class III-A-11
Notional Amount, Class III-A-16 Notional Amount, Class IV-A-2 Notional Amount
or Class IV-A-5 Notional Amount, as applicable.
Class P Fraction: Any of the Class I-P, Class II-P or Class IV-P
Fraction, as applicable.
Class P Mortgage Loan: Any of the Class I-P, Class II-P or Class
IV-P Mortgage Loans, as applicable.
Class P Principal Distribution Amount: Any of the Class I-P
Principal Distribution Amount, Class II-P Principal Distribution Amount and
Class IV-P Principal Distribution Amount, as applicable.
Class Principal Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest-bearing Group I Certificates, Group II Certificates and Group IV
Certificates, the amount by which the aggregate Class Interest Shortfalls for
such Class on prior Distribution Dates exceeds the amount distributed on such
Class on prior Distribution Dates pursuant to clause (ii) of the definition of
Interest Distribution Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
which initially shall be DTC.
Closing Date: May 31, 2001.
CMMC: Chase Manhattan Mortgage Corporation, a New Jersey
corporation, its successors and assigns.
Code: The Internal Revenue Code of 1986, as amended.
Collection Account: The accounts established and maintained by a
Servicer in accordance with Section 3.05.
Collection Period: With respect to each Distribution Date, the
period commencing on the second day of the month preceding the month of the
Distribution Date and ending on the first day of the month of the Distribution
Date.
Compensating Interest Payment: For any Distribution Date and the
WMMSC Serviced Mortgage Loans or WMMSC Subserviced Mortgage Loans, the lesser
of (i) the sum of (a) one twelfth (1/12) of 0.04% of the aggregate Stated
Principal Balance of the WMMSC Serviced Mortgage Loans or WMMSC Subserviced
Mortgage Loans, as applicable, as of the Due Date in the month of such
Distribution Date, (b) Payoff Earnings in respect of the WMMSC Serviced
Mortgage Loans or WMMSC Subserviced Mortgage Loans, as applicable, for such
Distribution Date and (c) aggregate Payoff Interest in respect of the WMMSC
Serviced Mortgage Loans or WMMSC Subserviced Mortgage Loans, as applicable,
for such Distribution Date and (ii) the aggregate Prepayment Interest
Shortfall allocable to Payoffs for the WMMSC Serviced Mortgage Loans or WMMSC
Subserviced Mortgage Loans, as applicable. For any Distribution Date and the
CMMC Serviced Mortgage Loans other than the WMMSC Subserviced Mortgage Loans,
the lesser of (i) the aggregate Servicing Fee payable to CMMC in respect of
the CMMC Serviced Mortgage Loans for such Distribution Date and (ii) the
aggregate Prepayment Interest Shortfall with respect to the CMMC Serviced
Mortgage Loans.
Corporate Trust Office: With respect to the Trustee, the designated
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 0 Xxxx Xxx Xxxxx,
Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Corporate Trust
Services, except for purposes of Section 6.06, such term shall mean the office
or agency of the Trustee in the Borough of Manhattan, the City of New York,
which office at the date hereof is located at 00 Xxxx Xxxxxx, Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. With respect to the Trust Administrator, the
designated office of the Trust Administrator at which at any particular time
its corporate trust business with respect to this Agreement shall be
administered, which office at the date of the execution of this Agreement is
located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Corresponding Classes of Certificates: With respect to each
Subsidiary REMIC Regular Interest, any Class of Certificates appearing
opposite such Subsidiary REMIC Regular Interest in the Preliminary Statement.
Credit Support Depletion Date: The first Distribution Date on which
the aggregate Class Principal Balances of the Group C-B Certificates has been
or will be reduced to zero.
Current Interest: For any Class of Group III Certificates and
Distribution Date, the amount of interest accruing at the applicable
Pass-Through Rate on the related Class Principal Balance or Class Notional
Amount, as applicable, of such Class during the related Accrual Period ;
provided, that as to each Class of Group III Certificates the Current Interest
shall be reduced by a pro rata portion of any Interest Shortfalls to the
extent not covered by Excess Interest.
Curtailment: Any payment of principal on a Mortgage Loan, made by or
on behalf of the related Mortgagor, other than a Scheduled Payment, a prepaid
Scheduled Payment or a Payoff, which is applied to reduce the outstanding
Stated Principal Balance of the Mortgage Loan.
Custodial Agreement: An agreement, dated as of the date hereof,
among a custodian, the Trustee and the Depositor, pursuant to which the
Trustee appoints such custodian to hold any of the documents or instruments
referred to in Section 2.01 of this Agreement as agent for the Trustee.
Custodian: A custodian which is appointed pursuant to a Custodial
Agreement. Any Custodian so appointed shall act as agent on behalf of the
Trustee, and shall be compensated by the Trust Administrator. The Trustee
shall remain at all times responsible under the terms of this Agreement,
notwithstanding the fact that certain duties have been assigned to a
Custodian.
Cut-off Date: May 1, 2001.
Cut-off Date Pool Principal Balance: $633,269,689.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to a Mortgage Loan in Loan
Group I, Loan Group II or Loan Group IV, a reduction by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code in the Scheduled
Payment for such Mortgage Loan which became final and non-appealable, except
such a reduction resulting from a Deficient Valuation or any reduction that
results in a permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Deceased Holder: As defined in Section 4.07.
Deficient Valuation: With respect to any Mortgage Loan in Loan Group
I, Loan Group II or Loan Group IV, a valuation by a court of competent
jurisdiction of the Mortgaged Property in an amount less than the then
outstanding indebtedness under the Mortgage Loan, or that results in a
permanent forgiveness of principal, which valuation in either case results
from a proceeding under the Bankruptcy Code.
Deferred Amount: For any Class of Group III Subordinate Certificates
(other than the Class III-X Certificates) and Distribution Date, will equal
the amount by which (x) the aggregate of the Applied Loss Amounts previously
applied in reduction of the Class Principal Balance thereof exceeds (y) the
aggregate of amounts previously paid in reimbursement thereof.
Definitive Certificate: As defined in Section 6.07.
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Rate: For any month will be, generally, the fraction,
expressed as a percentage, the numerator of which is the aggregate outstanding
principal balance of all Mortgage Loans in Loan Group III 60 or more days
delinquent (including all foreclosures, bankruptcies and REO Properties) as of
the close of business on the last day of such month, and the denominator of
which is the Aggregate Loan Group Balance of Loan Group III as of the close of
business on the last day of such month.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate"
or the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Depositor: Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
Depository Agreement: The Letter of Representation dated as of May
31, 2001 by and among DTC, the Depositor and the Trust Administrator for the
benefit of the Trustee.
Determination Date: With respect to each Distribution Date, the 10th
day of the calendar month in which such Distribution Date occurs or, if such
10th day is not a Business Day, the Business Day immediately preceding such
Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trust Administrator based upon an Opinion of Counsel that
the holding of an Ownership Interest in a Class AR Certificate by such Person
may cause the REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the
Transfer of an Ownership Interest in a Class AR Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
Distribution Date: The 25th day of any month, or if such 25th day is
not a Business Day, the Business Day immediately following such 25th day,
commencing on June 25, 2001.
DLJ Loans: The Mortgage Loans identified as such on the Mortgage
Loan Schedule for which DLJMC is the applicable Seller.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation, and its
successors and assigns.
DTC: The Depository Trust Company.
Due Date: With respect to each Mortgage Loan and any Distribution
Date, the date on which Scheduled Payments on such Mortgage Loan are due which
is either the first day of the month of such Distribution Date, or if
Scheduled Payments on such Mortgage Loan are due on a day other than the first
day of the month, the date in the calendar month immediately preceding the
Distribution Date on which such Scheduled Payments are due, exclusive of any
days of grace.
Eligible Account: Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short term debt obligations of
such holding company) have been rated by each Rating Agency in its highest
short-term rating category, or (iii) a segregated trust account or accounts
(which shall be a "special deposit account") maintained with the Trustee, the
Trust Administrator or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Rating Agencies. Eligible Accounts may bear interest.
Eligible Institution: An institution having the highest short-term
debt rating, and one of the two highest long-term debt ratings of the Rating
Agencies or the approval of the Rating Agencies.
Eligible Investments: Any one or more of the obligations and
securities listed below:
1. direct obligations of, and obligations fully guaranteed by, the United
States of America, or any agency or instrumentality of the United States
of America the obligations of which are backed by the full faith and
credit of the United States of America; or obligations fully guaranteed
by, the United States of America; the FHLMC, FNMA, the Federal Home Loan
Banks or any agency or instrumentality of the United States of America
rated AA or higher by the Rating Agencies;
2. federal funds, demand and time deposits in, certificates of deposits of,
or bankers' acceptances issued by, any depository institution or trust
company incorporated or organized under the laws of the United States of
America or any state thereof and subject to supervision and examination
by federal and/or state banking authorities, so long as at the time of
such investment or contractual commitment providing for such investment
the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short-term debt
obligations of such holding company) are rated in one of two of the
highest ratings by each of the Rating Agencies, and the long-term debt
obligations of such depository institution or trust company (or, in the
case of a depository institution or trust company which is the principal
subsidiary of a holding company, the long-term debt obligations of such
holding company) are rated in one of two of the highest ratings, by each
of the Rating Agencies;
3. repurchase obligations with a term not to exceed 30 days with respect to
any security described in clause (i) above and entered into with a
depository institution or trust company (acting as a principal) rated A
or higher by the Rating Agencies; provided, however, that collateral
transferred pursuant to such repurchase obligation must be of the type
described in clause (i) above and must (A) be valued daily at current
market price plus accrued interest, (B) pursuant to such valuation, be
equal, at all times, to 105% of the cash transferred by the Trustee or
the Trust Administrator in exchange for such collateral, and (C) be
delivered to the Trustee or the Trust Administrator or, if the Trustee or
the Trust Administrator, as applicable, is supplying the collateral, an
agent for the Trustee or the Trust Administrator, in such a manner as to
accomplish perfection of a security interest in the collateral by
possession of certificated securities;
4. securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America
or any state thereof which has a long-term unsecured debt rating in the
highest available rating category of each of the Rating Agencies at the
time of such investment;
5. commercial paper having an original maturity of less than 365 days and
issued by an institution having a short-term unsecured debt rating in the
highest available rating category of each of the Rating Agencies at the
time of such investment;
6. a guaranteed investment contract approved by each of the Rating Agencies
and issued by an insurance company or other corporation having a
long-term unsecured debt rating in the highest available rating category
of each of the Rating Agencies at the time of such investment;
7. money market funds (which may be 12b-1 funds as contemplated under the
rules promulgated by the Securities and Exchange Commission under the
Investment Company Act of 1940) having ratings in the highest available
rating category of Xxxxx'x and one of the two highest available rating
categories of S&P at the time of such investment (any such money market
funds which provide for demand withdrawals being conclusively deemed to
satisfy any maturity requirements for Eligible Investments set forth
herein) including money market funds of a Servicer, the Trustee or the
Trust Administrator and any such funds that are managed by a Servicer,
the Trustee or the Trust Administrator or their respective Affiliates or
for a Servicer, the Trustee, the Trust Administrator or any Affiliate of
such Person acts as advisor, as long as such money market funds satisfy
the criteria of this subparagraph (vii); and
8. such other investments the investment in which will not, as evidenced by
a letter from each of the Rating Agencies, result in the downgrading or
withdrawal of the Ratings of the Certificates.
provided, however, that no such instrument shall be an Eligible
Investment if such instrument evidences either (i) a right to receive only
interest payments with respect to the obligations underlying such instrument,
or (ii) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of greater than 120% of
the yield to maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements (without regard
to the ratings requirements) of an Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The separate account or accounts created and
maintained by a Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, mortgage insurance premiums, fire and hazard
insurance premiums, and any other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or any
other related document.
Event of Default: As defined in Section 8.01 hereof.
Excess Loss: The amount of any (i) Fraud Loss on a Mortgage Loan in
Loan Group I, Loan Group II or Loan Group IV realized after the Fraud Loss
Coverage Termination Date, (ii) Special Hazard Loss on a Mortgage Loan in Loan
Group I, Loan Group II or Loan Group IV realized after the Special Hazard Loss
Coverage Termination Date or (iii) Bankruptcy Loss on a Mortgage Loan in Loan
Group I, Loan Group II or Loan Group IV realized after the Bankruptcy Coverage
Termination Date.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Servicing Fee Rate and the MGIC PMI Fee Rate, if applicable.
Expense Fees: As to each Mortgage Loan, the sum of the related
Servicing Fee and the MGIC PMI Fee, as applicable.
Extraordinary Events: Any of the following conditions with respect
to a Mortgaged Property or Mortgage Loan in Loan Group I, Loan Group II or
Loan Group IV causing or resulting in a loss which causes the liquidation of
such Mortgage Loan: (a) losses that are of the type that would be covered by
the fidelity bond and the errors and omissions insurance policy required to be
maintained pursuant to Section 3.18 but are in excess of the coverage
maintained thereunder; (b) nuclear reaction or nuclear radiation or
radioactive contamination, all whether controlled or uncontrolled, and whether
such loss be direct or indirect, proximate or remote or be in whole or in part
caused by, contributed to or aggravated by a peril covered by the definition
of the term "Special Hazard Loss"; (c) hostile or warlike action in time of
peace or war, including action in hindering, combating or defending against an
actual, impending or expected attack: (i) by any government or sovereign
power, de jure or de facto, or by any authority maintaining or using military,
naval or air forces; or (ii) by military, naval or air forces; or (iii) by an
agent of any such government, power, authority or forces; (d) any weapon of
war employing atomic fission or radioactive force whether in time of peace or
war; or (e) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority; or
risks of contraband or illegal transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan in Loan
Group I, Loan Group II or Loan Group IV caused by or resulting from an
Extraordinary Event.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fiscal Agent: As defined in the Certificate Insurance Policy.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan in Loan Group I, Loan Group
II or Loan Group IV as to which a Fraud Loss has occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $12,665,394,
subject in each case to reduction from time to time by the amount of Fraud
Losses allocated to the Group I Certificates, the Group II Certificates or the
Group IV Certificates. On each anniversary of the Cut-off Date, the Fraud Loss
Coverage Amount will be reduced as follows: (a) prior to the fifth anniversary
of the Cut-off Date, the Fraud Loss Coverage Amount will be reduced to an
amount equal to the lesser of (i) 1% of the aggregate Stated Principal Balance
of the Mortgage Loans in Loan Group I, Loan Group II and Loan Group IV and
(ii) the excess of the Fraud Loss Coverage Amount as of the preceding
anniversary of the Cut-off Date (or, in the case of the first such
anniversary, as of the Cut-off Date) over the cumulative amount of Fraud
Losses on the Mortgage Loans allocated to the Group I Certificates, the Group
II Certificates and the Group IV Certificates since such preceding anniversary
or the Cut-off Date, as the case may be, and (b) on the fifth anniversary of
the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
applicable Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Mortgage Loans in Loan Group I,
Loan Group II and Loan Group IV as to which a loss is sustained by reason of a
default arising from fraud, dishonesty or misrepresentation in connection with
the related Mortgage Loan, including a loss by reason of the denial of
coverage under any related Primary Mortgage Insurance Policy because of such
fraud, dishonesty or misrepresentation.
FSA: Financial Security Assurance Inc., a New York stock insurance
company, or any successor thereto.
FSA Contact Persons: Collectively, the officers designated by each
Servicer to provide information to FSA pursuant to Section 4.03(i).
FSA Default: As defined in Section 4.03(l).
FSA Premium: With respect to any Distribution Date, an amount equal
to 1/12th of the product of (a) the sum of the Class Principal Balances of the
Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 and Class III-A-5
Certificates as of such Distribution Date (prior to giving effect to any
distributions thereon on such Distribution Date) and (b) the Premium
Percentage.
FSA Reimbursement Amount: The sum of (i) all amounts paid by FSA
under the Certificate Insurance Policy which have not been previously
reimbursed, (ii) all unpaid FSA Premiums, and (iii) interest on the foregoing
at the Late Payment Rate.
GreenPoint: GreenPoint Mortgage Funding, Inc., and its successors
and assigns.
GreenPoint Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which GreenPoint is the applicable Seller.
GreenPoint Mortgage Loan Purchase Agreement: That certain mortgage
loan purchase agreement dated as of March 1, 2001, between DLJMC, as
purchaser, and GreenPoint, as seller, of the GreenPoint Loans.
Group: When used with respect to the Mortgage Loans, any of Group I,
Group II, Group III or Group IV or with respect to the Certificates, the Class
or Classes of Certificates that relate to the corresponding Group or Groups.
Group I: With respect to the Mortgage Loans, the pool of fixed rate
Mortgage Loans identified in the related Mortgage Loan Schedule as having been
assigned to Group I or with respect to the Certificates, the Class I-A-1,
Class I-A-2, Class I-A-3 and Class A-R Certificates.
Group I Excess Interest Amount: For any Distribution Date, the
amount equal to the product of the Group I Excess Interest Rate and the Stated
Principal Balance of the Mortgage Loans in Loan Group I as of the second
preceding Due Date after giving effect to Scheduled Payments for such Due
Date, whether or not received, or for the initial Distribution Date, the
Cut-off Date.
Group I Excess Interest Rate: For any Distribution Date, a per annum
rate equal to the excess of (a) the weighted average of the Net Mortgage Rates
(by principal balance) of the Premium Rate Mortgage Loans in Loan Group I over
(b) 7.0%.
Group I Senior Certificates: The Class I-A-1, Class I-A-2, Class
I-A-3 and Class A-R Certificates.
Group I Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group I which became a Liquidated
Mortgage Loan during the related Collection Period, of the lesser of (i) the
Group I Senior Percentage of the Stated Principal Balance of such Mortgage
Loan (exclusive of the Class I-P Fraction of that balance, with respect to any
Class I-P Mortgage Loan) and (ii) the Senior Prepayment Percentage of the
Liquidation Principal with respect to such Mortgage Loan.
Group I Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Principal Balances of the Group I Senior Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
of the Stated Principal Balances of the Mortgage Loans in Loan Group I less
the Class I-P Fraction of the Class I-P Mortgage Loans, as of the first day of
the related Due Period; provided, however, in no event will the Group I Senior
Percentage exceed 100%.
Group I Senior Principal Distribution Amount: As to any Distribution
Date, the sum of (i) the Group I Senior Percentage of the Principal Payment
Amount (exclusive of the portion attributable to the Class I-P Principal
Distribution Amount) for Loan Group I, (ii) the Senior Prepayment Percentage
of the Principal Prepayment Amount (exclusive of the portion attributable to
the Class I-P Principal Distribution Amount) for Loan Group I, and (iii) the
Group I Senior Liquidation Amount.
Group I Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group I Senior Percentage.
Group II: With respect to the Mortgage Loans, the pool of fixed rate
Mortgage Loans identified in the related Mortgage Loan Schedule as having been
assigned to Group II or with respect to the Certificates, the Class II-A-1,
Class II-A-2, Class II-A-3, Class II-A-4, Class II-A-5, Class II-A-6, Class
II-A-7, Class II-A-8 and Class II-A-9 Certificates.
Group II Excess Interest Amount: For any Distribution Date, the
amount equal to the product of the Group II Excess Interest Rate and the
Stated Principal Balance of the Mortgage Loans in Loan Group II as of the
second preceding Due Date after giving effect to Scheduled Payments for such
Due Date, whether or not received, or for the initial Distribution Date, the
Cut-off Date.
Group II Excess Interest Rate: For any Distribution Date, a per
annum rate equal to the excess of (a) the weighted average of the Net Mortgage
Rates (by principal balance) of the Premium Rate Mortgage Loans in Loan Group
II over (b) 7.0%.
Group II Priority Amount: The sum of the Class II-A-3 Priority
Amount and the Class II-A-7 Priority Amount.
Group II Senior Certificates: The Class II-A-1, Class II-A-2, Class
II-A-3, Class II-A-4, Class II-A-5, Class II-A-6, Class II-A-7, Class II-A-8
and Class II-A-9 Certificates.
Group II Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group II which became a Liquidated
Mortgage Loan during the related Collection Period, of the lesser of (i) the
Group II Senior Percentage of the Stated Principal Balance of such Mortgage
Loan (exclusive of the Class II-P Fraction of that balance, with respect to
any Class II-P Mortgage Loan) and (ii) the Senior Prepayment Percentage of the
Liquidation Principal with respect to such Mortgage Loan.
Group II Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Principal Balances of the Group II Senior Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
of the Stated Principal Balances of the Mortgage Loans in Loan Group II less
the Class II-P Fraction of the Class II-P Mortgage Loans, as of the first day
of the related Due Period; provided, however, in no event will the Group II
Senior Percentage exceed 100%.
Group II Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group II Senior Percentage of the
Principal Payment Amount (exclusive of the portion attributable to the Class
II-P Principal Distribution Amount) for Loan Group II, (ii) the Senior
Prepayment Percentage of the Principal Prepayment Amount (exclusive of the
portion attributable to the Class II-P Principal Distribution Amount) for Loan
Group II, and (iii) the Group II Senior Liquidation Amount.
Group II Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group II Senior Percentage.
Group III: With respect to the Mortgage Loans, the pool of fixed
rate Mortgage Loans identified in the related Mortgage Loan Schedule as having
been assigned to Group III or with respect to the Certificates, the Class
III-A-1, Class III-A-2, Class III-A-3, Class III-A-4, Class III-A-5, Class
III-A-6, Class III-A-7, Class III-A-8, Class III-A-9, Class III-A-10, Class
III-A-11, Class III-A-12, Class III-A-13, Class III-A-14, Class III-A-15,
Class III-A-16, Class III-A-17, Class III-M and Class III-X Certificates.
Group III Adjusted Net WAC Rate: With respect to any Distribution
Date, a per annum rate equal to the greater of (i) zero and (ii) the weighted
average of (x) the pass-through rate of the Class 2-III-A-9 Regular Interest
minus the pass-through rate of the Class 3-III-A-9 Regular Interest for such
Distribution Date and (y) the pass-through rate of the Class 2-III Regular
Interest for such Distribution Date.
Group III Senior Certificates: The Class III-A-1, Class III-A-2,
Class III-A-3, Class III-A-4, Class III-A-5, Class III-A-6, Class III-A-7,
Class III-A-8, Class III-A-9, Class III-A-10, Class III-A-11, Class III-A-12,
Class III-A-13, Class III-A-14, Class III-A-15, Class III-A-16 and Class
III-A-17 Certificates.
Group III Senior Enhancement Percentage: For any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the sum of
the Class Principal Balance of the Class III-M Certificates and the
Overcollateralization Amount (which, for purposes of this definition only,
shall not be less than zero), in each case after giving effect to payments on
such Distribution Date (assuming no Trigger Event has occurred), and the
denominator of which is the Aggregate Loan Group Balance for Loan Group III
for such Distribution Date.
Group III Senior Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the Class Principal Balance of the Group III Senior Certificates,
immediately prior to such Distribution Date exceeds (y) the lesser of (A) the
product of (i) 94.50% and (ii) the Aggregate Loan Group Balance for Loan Group
III for such Distribution Date and (B) the amount, if any, by which (i) the
Aggregate Loan Group Balance for Loan Group III for such Distribution Date
exceeds (ii) 0.50% of the Aggregate Loan Group Balance for Loan Group III as
of the Cut-off Date.
Group III Subordinate Certificates: The Class III-M and Class III-X
Certificates.
Group IV: With respect to the Mortgage Loans, the pool of fixed rate
Mortgage Loans identified in the related Mortgage Loan Schedule as having been
assigned to Group IV or with respect to the Certificates, the IV-A-1, Class
IV-A-2, Class IV-A-3, Class IV-A-4, Class IV-A-5 and Class IV-A-6
Certificates.
Group IV Excess Interest Amount: For any Distribution Date, the
amount equal to the product of the Group IV Excess Interest Rate and the
Stated Principal Balance of the Mortgage Loans in Loan Group IV as of the
second preceding Due Date after giving effect to Scheduled Payments for such
Due Date, whether or not received, or for the initial Distribution Date, the
Cut-off Date.
Group IV Excess Interest Rate: For any Distribution Date, a per
annum rate equal to the excess of (a) the weighted average of the Net Mortgage
Rates (by principal balance) of the Premium Rate Mortgage Loans in Loan Group
IV over (b) 8.25%.
Group IV Senior Certificates: The Class IV-A-1, Class IV-A-2, Class
IV-A-3, Class IV-A-4, Class IV-A-5 and Class IV-A-6 Certificates.
Group IV Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group IV which became a Liquidated
Mortgage Loan during the related Collection Period, of the lesser of (i) the
Group IV Senior Percentage of the Stated Principal Balance of such Mortgage
Loan (exclusive of the Class IV-P Fraction of that balance, with respect to
any Class IV-P Mortgage Loan) and (ii) the Senior Prepayment Percentage of the
Liquidation Principal with respect to such Mortgage Loan.
Group IV Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Certificate Principal Balances of the Group IV Senior Certificates
immediately prior to such Distribution Date and the denominator of which is
the aggregate of the Stated Principal Balances of the Mortgage Loans in Loan
Group IV less the Class IV-P Fraction of the Class IV-P Mortgage Loans, as of
the first day of the related Due Period; provided, however, in no event will
the Group IV Senior Percentage exceed 100%.
Group IV Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group IV Senior Percentage of the
Principal Payment Amount (exclusive of the portion attributable to the Class
IV-P Principal Distribution Amount) for Loan Group IV, (ii) the Senior
Prepayment Percentage of the Principal Prepayment Amount (exclusive of the
portion attributable to the Class IV-P Principal Distribution Amount) for Loan
Group IV, and (iii) the Group IV Senior Liquidation Amount.
Group IV Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group IV Senior Percentage.
Indirect Participants: Entities, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly.
Individual Class III-A-5 Certificate: Any Class III-A-5 Certificate
with a $1,000 Certificate Balance.
Initial Bankruptcy Loss Coverage Amount: $125,000.
Initial Class Principal Balance: As set forth in the Preliminary
Statement.
Insolvency Proceeding: As defined in Section 4.03(h).
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any Mortgage Guaranty Insurance Policy, the MGIC PMI Policy, any
standard hazard insurance policy, flood insurance policy or title insurance
policy, including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds of any primary mortgage guaranty
insurance policies, including, without limitation, the MGIC PMI Policy and any
other Insurance Policies with respect to the Mortgage Loans, to the extent
such proceeds are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with a Servicer's normal
servicing procedures.
Interest Determination Date: With respect to the LIBOR Certificates
and for each Accrual Period, the second LIBOR Business Day preceding the
commencement of such Accrual Period.
Interest Distribution Amount: With respect to any Distribution Date
and interest-bearing Class of Group I Certificates, Group II Certificates and
Group IV Certificates, the sum of (i) one month's interest accrued during the
related Accrual Period at the applicable Pass-Through Rate for such Class on
the related Class Principal Balance or Class Notional Amount, as applicable,
subject to reduction pursuant to Section 4.01I(d), and (ii) any Class Unpaid
Interest Amounts for such Class and Distribution Date.
Interest Rate: With respect to each Subsidiary REMIC Interest, the
applicable rate set forth or calculated in the manner described in the
Preliminary Statement.
Interest Remittance Amount: For any Distribution Date and the
Mortgage Loans in Loan Group III, an amount equal to the sum of (1) all
interest collected (other than Payaheads) or advanced in respect of Scheduled
Payments on the Mortgage Loans in Loan Group III during the related Collection
Period, the interest portion of Payaheads previously received and intended for
application in the related Collection Period and interest portion of all
Payoffs (net of Payoff Interest for such Distribution Date) and Curtailments
received on the Mortgage Loans during the related Prepayment Period, less (x)
the applicable Servicing Fees with respect to such Mortgage Loans and (y)
unreimbursed Advances and other amounts due to the applicable Servicer or the
Trust Administrator with respect to such Mortgage Loans, to the extent
allocable to interest, (2) all Compensating Interest Payments paid by the
Servicers with respect to the Mortgage Loans in Loan Group III with respect to
the related Prepayment Period, (3) the portion of any Substitution Adjustment
Amount or Purchase Price paid with respect to such Mortgage Loans during the
related Collection Period allocable to interest, (4) all Net Liquidation
Proceeds and any other recoveries (net of unreimbursed Advances, Servicing
Advances and expenses, to the extent allocable to interest, and unpaid
Servicing Fees) collected with respect to the Mortgage Loans in Loan Group III
during the related Collection Period, to the extent allocable to interest and
(5) the sum of the Group I Excess Interest Amount, Group II Excess Interest
Amount and the Group IV Excess Interest Amount for such Distribution Date.
Interest Shortfall: For any Distribution Date and the Mortgage Loans
in Loan Group III, an amount equal to the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rate) on
Mortgage Loans in Loan Group III resulting from (a) Principal Prepayments
received during the related Prepayment Period and (b) interest payments on
certain of the Mortgage Loans in Loan Group III being limited pursuant to the
provisions of the Soldiers' and Sailors' Civil Relief Act of 1940.
Investment Account: The commingled account (which shall be
commingled only with investment accounts related to series of pass-through
certificates with a class of certificates which has a rating equal to the
highest of the Ratings of the Certificates maintained by WMMSC in the trust
department of the Investment Depository pursuant to Section 3.05.
Investment Depository: The Chase Manhattan Bank, New York, New York
or another bank or trust company designated from time to time by WMMSC. The
Investment Depository shall at all times be an Eligible Institution.
Late Payment Rate: The lesser of (a) the greater of (i) the per
annum rate of interest, publicly announced from time to time by The Chase
Manhattan Bank at its principal office in New York, New York, as its prime or
base lending rate (any change in such rate of interest to be effective on the
date such change is announced by The Chase Manhattan Bank) plus 3%, and (ii)
the then applicable highest rate of interest on the Class III-A-1, Class
III-A-2, Class III-A-3, Class III-A-4 or Class III-A-5 Certificates and (b)
the maximum rate permissible under applicable usury or similar laws limiting
interest rates. The Late Payment Rate shall be computed on the basis of the
actual number of days elapsed over a year of 360 days.
LIBOR Business Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State of New York or in the
city of London, England are required or authorized by law to be closed.
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which a Servicer has determined (in accordance with this Agreement) that it
has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of the
related REO Property.
Liquidation Expenses: Customary and reasonable "out of pocket"
expenses incurred by a Servicer (or the related Sub-Servicer) in connection
with the liquidation of any defaulted Mortgage Loan and not recovered by the
Servicer (or the related Sub-Servicer) under a Primary Mortgage Insurance
Policy for reasons other than such Servicer's failure to comply with Section
3.09 hereof, such expenses including, without limitation, legal fees and
expenses, any unreimbursed amount expended by a Servicer pursuant to Section
3.11 hereof respecting the related Mortgage and any related and unreimbursed
expenditures for real estate property taxes or for property restoration or
preservation to the extent not previously reimbursed under any hazard
insurance policy for reasons other than such Servicer's failure to comply with
Section 3.11 hereof.
Liquidation Principal: As to any Distribution Date and a Loan Group,
the principal portion of Liquidation Proceeds received with respect to each
Mortgage Loan in that Loan Group which became a Liquidated Mortgage Loan (but
not in excess of the principal balance thereof) during the preceding calendar
month.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property related to a Mortgage Loan and any other proceeds
received in connection with an REO Property.
Living Holders: Holders of the Class III-A-5 Certificates, other
than the Deceased Holders.
Loan Group: Any of Loan Group I, Loan Group II, Loan Group III or
Loan Group IV, as applicable.
Loan Group I: All Mortgage Loans identified as Loan Group I Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group II: All Mortgage Loans identified as Loan Group II
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group III: All Mortgage Loans identified as Loan Group III
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group IV: All Mortgage Loans identified as Loan Group IV
Mortgage Loans on the Mortgage Loan Schedule.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the Appraised Value of the Mortgaged Property or, in the case of a
Qualified Substitute Mortgage Loan, is the appraised value of the Mortgaged
Property based upon an appraisal made within 180 days prior to the date of
substitution of such Qualified Substitute Mortgage Loan for a Deleted Mortgage
Loan.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Master REMIC: As described in the Preliminary Statement.
MGIC PMI Fee: As to each MGIC PMI Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the MGIC PMI Fee Rate on the
Stated Principal Balance of such MGIC PMI Mortgage Loan as of the Due Date in
the month of such Distribution Date (prior to giving effect to any Scheduled
Payment due on such MGIC PMI Mortgage Loan on such Due Date).
MGIC PMI Fee Rate: With respect to each MGIC PMI Mortgage Loan, the
per annum rate equal to%.
MGIC PMI Mortgage Loan: Those Mortgage Loans identified on the
Mortgage Loan Schedule as to which the MGIC PMI Policy provides coverage.
MGIC PMI Policy: The mortgage guaranty insurance policy issued by
Mortgage Guaranty Insurance Corporation, the form of which is attached hereto
as Exhibit S.
Monthly Excess Cashflow: For any Distribution Date, an amount equal
to the sum of the Monthly Excess Interest and Overcollateralization Release
Amount, if any, for such date.
Monthly Excess Interest: For any Distribution Date, the excess of
the Interest Remittance Amount after the application of items (i) through (v)
in the distribution thereof, pursuant to Section 4.01(a)II.
Moody's: Xxxxx'x Investors Service, Inc. or any successor thereto.
Mortgage: With respect to a Mortgage Loan, the mortgage, deed of
trust or other instrument creating a first lien on a fee simple or leasehold
estate in real property securing a Mortgage Note.
Mortgage File: For each Mortgage Loan, the Trustee Mortgage File and
the Servicer Mortgage File.
Mortgage Guaranty Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to the provisions hereof as from time to time are held
as a part of the Trust Fund (including any REO Property), the mortgage loans
so held being identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Mortgage Loan Purchase Agreement: That certain mortgage loan
purchase agreement dated as of May 1, 2001, between DLJMC, as purchaser, and
WMMSC, as seller, of the WMMSC Loans.
Mortgage Loan Purchase Price: The price, calculated as set forth in
Section 10.01, to be paid in connection with the purchase of the Mortgage
Loans pursuant to an Optional Termination of the Trust Fund.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the applicable Seller to reflect the addition of Qualified
Substitute Mortgage Loans and the purchase of Mortgage Loans pursuant to
Section 2.02 or 2.03) transferred to the Trustee as part of the Trust Fund and
from time to time subject to this Agreement, attached hereto as Schedule I,
setting forth the following information with respect to each Mortgage Loan and
applicable Servicer by Loan Group:
1. the Mortgage Loan identifying number;
2. the Mortgagor's name;
3. the street address of the Mortgaged Property including the
state and zip code;
4. a code indicating the type of Mortgaged Property and the
occupancy status.
5. the original months to maturity or the remaining months to
maturity from the Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual
amortization schedule;
6. the Loan-to-Value Ratio at origination;
7. the Mortgage Rate as of the Cut-off Date;
8. the stated maturity date;
9. the amount of the Scheduled Payment as of the Cut-off Date;
10. the original principal amount of the Mortgage Loan;
11. the principal balance of the Mortgage Loan as of the close of
business on the Cut-off Date, after deduction of payments of
principal due on or before the Cut-off Date whether or not
collected;
12. a code indicating the purpose of the Mortgage Loan (i.e.,
purchase, rate and term refinance, equity take-out refinance);
13. whether such Mortgage Loan has a Prepayment Penalty;
14. whether such Mortgage Loan is a MGIC PMI Mortgage Loan;
15. the Expense Fee Rate as of the Cut-off Date;
16. the Servicing Fee Rate (which may be disclosed on the Mortgage
Loan Schedule in two parts identified as the servicing fee and
master servicing fee);
17. whether such Mortgage Loan is a DLJ Loan, a GreenPoint Loan or
a WMMSC Loan; and
18. whether such Mortgage Loan is a WMMSC Serviced Mortgage Loan, a
CMMC Serviced Mortgage Loan or WMMSC Subserviced Mortgage Loan.
With respect to the Mortgage Loans in the aggregate, each Mortgage
Loan Schedule shall set forth the following information, as of the
Cut-off Date:
(i) the number of Mortgage Loans;
(ii) _____ the current aggregate principal balance of the
Mortgage Loans as of the close of business on the Cut-off Date,
after deduction of payments of principal due on or before the
Cut-off Date whether or not collected; and
(iii) the weighted average Mortgage Rate of the Mortgage
Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note.
Mortgaged Property: The underlying real property securing a Mortgage
Loan.
Mortgagor: The obligor on a Mortgage Note.
MR Interest: The sole class of "residual interest" in the Master
REMIC.
Net Excess Spread: With respect to any Distribution Date and Loan
Group III, a fraction, expressed as a percentage, the numerator of which is
equal to the excess of (x) the aggregate Stated Principal Balance for such
Distribution Date of the Mortgage Loans in that Loan Group, multiplied by the
Net WAC Rate for such Loan Group over (y) the Interest Remittance Amount for
such Loan Group for such Distribution Date, and the denominator of which is an
amount equal to the Aggregate Loan Group Balance for such Distribution Date of
the Mortgage Loans in such Loan Group, multiplied by the actual number of days
elapsed in the related Accrual Period divided by 360.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the excess of the related Liquidation Proceeds over the sum of
Liquidation Expenses, Expense Fees and unreimbursed Advances and Servicing
Advances.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate for such Mortgage Loan less the
related Expense Fee Rate.
Net WAC Rate: As to any Distribution Date and Loan Group, a rate
equal to the weighted average of the Net Mortgage Rates on the Mortgage Loans
in such Loan Group as of the second preceding Due Date after giving effect to
payments due on such Due Date, whether or not received, weighted on the basis
of the Stated Principal Balances as of such date reduced by, in the case of
Group I, Group II and Group III, the related Excess Interest Rate.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the Compensating Interest Payment for such
Distribution Date.
1933 Act: The Securities Act of 1933, as amended.
Nonrecoverable Advance: Any portion of an Advance or Servicing
Advance previously made or proposed to be made by a Servicer that, in the good
faith judgment of a Servicer, will not be ultimately recoverable by a Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, the President, an Executive Vice
President, Senior Vice President, a Vice President, or other authorized
officer, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor, the Sellers, the Servicers, a
Sub-Servicer, the Special Servicer, the Trustee or the Trust Administrator, as
the case may be, and delivered to the Depositor, the Sellers, the Servicers,
the Special Servicer, the Trustee or the Trust Administrator, as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or a Servicer, reasonably acceptable to the Trustee and the
Trust Administrator. With respect to the definition of Eligible Account in
this Article I and Sections 2.05 and 7.04 hereof and any opinion dealing with
the qualification of the REMIC or compliance with the REMIC Provisions, such
counsel must (i) in fact be independent of the Depositor and such Servicer,
(ii) not have any direct financial interest in the Depositor or such Servicer
or in any affiliate of either of them and (iii) not be connected with the
Depositor or such Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions.
Optional Termination: The purchase of the Mortgage Loans pursuant to
Section 11.01.
Optional Termination Date: The date fixed for the purchase of the
Mortgage Loans pursuant to Section 11.01.
OTS: The Office of Thrift Supervision.
Outsourcer: As defined in Section 3.02.
Overcollateralization Amount: For any Distribution Date, an amount
equal to the amount, if any, by which (x) the Aggregate Loan Group Balance for
Loan Group III for such Distribution Date exceeds (y) the aggregate Class
Principal Balance of the Group III Certificates after giving effect to
payments on such Distribution Date.
Overcollateralization Deficiency: For any Distribution Date, the
amount, if any, by which (x) the Targeted Overcollateralization Amount for
such Distribution Date exceeds (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after giving effect to the
reduction on such Distribution Date of the aggregate Class Principal Balance
of the Group III Certificates resulting from the payment of the Principal
Payment Amount on such Distribution Date but prior to allocation of any
Applied Loss Amount on the Group III Certificates on such Distribution Date.
Overcollateralization Release Amount: For any Distribution Date, an
amount equal to the lesser of (x) the related Principal Remittance Amount for
such Distribution Date and (y) the amount, if any, by which (1) the
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the aggregate of the related Principal
Remittance Amount for such date is applied on such date in reduction of the
aggregate of the Class Principal Balances of the Group III Certificates,
exceeds (2) the Targeted Overcollateralization Amount for such date.
Participant: A broker, dealer, bank, other financial institution or
other Person for whom DTC effects book-entry transfers and pledges of
securities deposited with DTC.
Pass-Through Entity: (a) a regulated investment company described in
Section 851 of the Code, a real estate investment trust described in Section
856 of the Code, a common trust fund or an organization described in Section
1381(a) of the Code, (b) any partnership, trust or estate or (c) any person
holding a Class A Certificate as nominee for another person.
Pass-Through Rate: For any interest-bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement. Interest on the Certificates will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Payahead: Any Scheduled Payment intended by the related Mortgagor to
be applied in a Collection Period subsequent to the Collection Period in which
such payment was received.
Payoff: Any payment of principal on a Mortgage Loan equal to the
entire outstanding Stated Principal Balance of such Mortgage Loan, if received
in advance of the last scheduled Due Date for such Mortgage Loan and
accompanied by an amount of interest equal to accrued unpaid interest on the
Mortgage Loan to the date of such payment-in-full.
Payoff Earnings: For any Distribution Date with respect to a WMMSC
Serviced Mortgage Loan or WMMSC Subserviced Mortgage Loan, on which Payoff was
received by WMMSC during the related Prepayment Period, the aggregate of the
interest earned by WMMSC from investment of each such Payoff from the date of
receipt of such Payoff until the third day preceding the Business Day
immediately preceding the related Distribution Date (net of investment
losses). For any Distribution Date with respect to each CMMC Serviced Mortgage
Loan other than a WMMSC Subserviced Mortgage Loan, on which a Payoff was
received by CMMC during the related Prepayment Period, the aggregate of the
interest earned by CMMC from investment of each such Payoff from the date of
receipt of such Payoff until the seventh day preceding the Business Day
immediately preceding the related Distribution Date (net of investment
losses).
Payoff Interest: For any Distribution Date with respect to each
WMMSC Serviced Mortgage Loan for which a Payoff was received on or after the
first calendar day of the month of such Distribution Date and before the 15th
calendar day of such month, an amount of interest thereon at the applicable
Net Mortgage Rate from the first day of the month of distribution through the
day of receipt thereof; to the extent (together with Payoff Earnings and the
portion of the aggregate Servicing Fee described in clause (i) of the
definition of Compensating Interest payable to WMMSC) not required to be
distributed as Compensating Interest on such Distribution Date, Payoff
Interest shall be payable to WMMSC as additional servicing compensation.
For any Distribution Date with respect to a CMMC Mortgage Loan other
than a WMMSC Subserviced Mortgage Loan for which a Payoff was received on or
after the first calendar day of the month of such Distribution Date and before
the 15th calendar day of such month, an amount of interest thereon at the
applicable Net Mortgage Rate from the first day of the month of distribution
through the day of receipt thereof; to the extent (together with Payoff
Earnings and the portion of the aggregate Servicing Fee described in clause
(i) of the definition of Compensating Interest payable to CMMC) not required
to be distributed as Compensating Interest on such Distribution Date, Payoff
Interest shall be payable to CMMC as additional servicing compensation.
Percentage Interest: As to any Certificate, either the percentage
set forth on the face thereof or equal to the percentage obtained by dividing
the Denomination of such Certificate by the aggregate of the Denominations of
all Certificates of the same Class.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Physical Certificates: As set forth in the Preliminary Statement.
Planned Balance: With respect to the Class III-A-1 and Class III-A-8
Certificates and any Distribution Date appearing on Schedule V hereto, the
applicable amount appearing opposite such Distribution Date for the aggregate
of such classes. With respect to the Class III-A-10, Class III-A-11 and Class
III-A-16 Certificates and any Distribution Date appearing on Schedule VI
hereto, the applicable amount appearing opposite such Distribution Date for
the aggregate of such classes.
Planned Principal Classes: As specified in the Preliminary
Statement.
Preference Amount: As defined in the Certificate Insurance Policy.
Preference Claim: As defined in Section 4.03(h).
Premium Rate Mortgage Loans: With respect to Loan Group I and Loan
Group II, the Mortgage Loans in Loan Group I and Loan Group II having Net
Mortgage Rates in excess of 7.0% per annum. With respect to Loan Group III,
the Mortgage Loans in Loan Group III having Net Mortgage Rates in excess of
8.25% per annum.
Premium Percentage: 0.06%.
Prepayment Interest Shortfall: As to any Mortgage Loan, Distribution
Date and Principal Prepayment (other than a Principal Prepayment on a WMMSC
Serviced Mortgage Loan, or WMMSC Subserviced Mortgage Loan, during the period
from and including the last day to and including the 14th day of the month of
such Distribution Date) received during the related Collection Period, the
difference between (i) one full month's interest at the applicable Mortgage
Rate (giving effect to any applicable Relief Act Reduction, Debt Service
Reduction and Deficient Valuation), as reduced by the Servicing Fee Rate, on
the outstanding principal balance of such Mortgage Loan immediately prior to
such prepayment and (ii) the amount of interest actually received with respect
to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty: With respect to any Mortgage Loan, any penalty
required to be paid if the Mortgagor prepays such Mortgage Loan as provided in
the related Mortgage Note or Mortgage.
Prepayment Period: With respect to each Distribution Date and each
Payoff or Curtailment with respect to a CMMC Serviced Mortgage Loan other than
a WMMSC Subserviced Mortgage Loan, the related "Prepayment Period" will be the
calendar month preceding the month in which the related Distribution Date
occurs. With respect to each Distribution Date and each Payoff with respect to
a WMMSC Serviced Mortgage Loan or WMMSC Subserviced Mortgage Loan, the related
"Prepayment Period" will commence on the 15th day of the month preceding the
month in which the related Distribution Date occurs (or, in the case of the
first Distribution Date, commencing on the Cut-off Date) and will end on the
14th day of the month in which such Distribution Date occurs. With respect to
each Distribution Date and each Curtailment, the related "Prepayment Period"
will be the calendar month preceding the month in which the related
Distribution Date occurs.
Principal Payment Amount: For any Distribution Date and Loan Group
I, Loan Group II or Loan Group IV, the sum of (i) the principal portion of the
Scheduled Payments on the Mortgage Loans in such Loan Group due on the related
Due Date, (ii) the principal portion of repurchase proceeds received with
respect to any Mortgage Loan in such Loan Group which was repurchased as
permitted or required by this Agreement during the related Prepayment Period
and (iii) any other unscheduled payments of principal which were received on
the Mortgage Loans in such Loan Group during the related Prepayment Period,
other than Principal Prepayments or Liquidation Principal. For any
Distribution Date and Loan Group III, an amount equal to the Principal
Remittance Amount for such date minus the Overcollateralization Release
Amount, if any, for such date.
Principal Prepayment: Any payment of principal on a Mortgage Loan
which constitutes a Payoff or Curtailment.
Principal Prepayment Amount: For any Distribution Date and Loan
Group I, Loan Group II or Loan Group IV, the sum of all Principal Prepayments
relating to the Mortgage Loans in such Loan Group which were received during
the related Prepayment Period.
Principal Remittance Amount: For any Distribution Date and Loan
Group III, an amount equal to the sum of (1) all principal collected (other
than Payaheads) or advanced in respect of Scheduled Payments on the Mortgage
Loans in Loan Group III during the related Collection Period (less
unreimbursed Advances, Servicing Advances and other amounts due to the
Servicers with respect to the Mortgage Loans in Loan Group III, to the extent
allocable to principal) and the principal portion of Payaheads previously
received and intended for application in the related Collection Period, (2)
all Principal Prepayments received during the related Prepayment Period, (3)
the outstanding principal balance of each Mortgage Loan that was repurchased
by a Seller or a Servicer, or purchased by Calmco, during the related
Collection Period, (4) the portion of any Substitution Adjustment Amount paid
with respect to any Deleted Mortgage Loans during the related Collection
Period allocable to principal and (5) all Net Liquidation Proceeds and any
other recoveries (net of unreimbursed Advances, Servicing Advances and other
expenses, to the extent allocable to principal) collected with respect to the
Mortgage Loans in Loan Group III during the related Collection Period, to the
extent allocable to principal.
Principal Transfer Amount: For any Distribution Date and each
Undercollateralized Group, the excess, if any, of the aggregate Class
Principal Balance of the Class A Certificates related to such
Undercollateralized Group over the aggregate Stated Principal Balance of the
Mortgage Loans in such group.
Private Certificates: As set forth in the Preliminary Statement.
Pro Rata Allocation: With respect to Excess Losses or Extraordinary
Losses relating to Loan Group I, Loan Group II and Loan Group IV, the
allocation of the principal portion of such losses to all Classes of
Certificates (other than the Class A-P Certificates and the Notional Amount
Certificates), pro rata according to their respective Class Principal Balances
in reduction thereof, and the allocation of the interest portion of such
losses to all Classes of Certificates (other than the Class A-P Certificates),
pro rata according to the amount of interest accrued but unpaid on each such
Class, in reduction thereof, and then to such Classes (other than the Class
A-P Certificates and Notional Amount Certificates) pro rata according to their
respective Class Principal Balances in reduction thereof.
Pro Rata Share: As to any Distribution Date and the Class C-B-1,
Class C-B-2, Class C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6
Certificates, the portion of the Subordinate Principal Distribution Amount
allocable to such Class, equal to the product of the Subordinate Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Principal Balance of such Class and the denominator
of which is the aggregate of the Class Principal Balances of the Group C-B
Certificates.
Prospectus: The Prospectus, dated March 6, 2001, relating to the
offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the 1933 Act with respect to the offer and sale of the offered
certificates.
Prospectus Supplement: The Prospectus Supplement, dated May 31,
2001, relating to the offering of the Offered Certificates in the form in
which it was or will be filed with the Securities and Exchange Commission
pursuant to Rule 424(b) under the 1933 Act with respect to the offer and sale
of the offered certificates.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by a Seller pursuant to Section 2.02 or 2.03 or purchased at the
option of Calmco pursuant to Section 3.11(g), the sum of (i) 100% of the
unpaid principal balance of the Mortgage Loan on the date of such purchase,
(ii) accrued and unpaid interest on the Mortgage Loan at the applicable
Mortgage Rate (reduced by the related Servicing Fee Rate, if the purchaser is
also the Servicer thereof or such Mortgage Loan is a WMMSC Subserviced
Mortgage Loan) from the date through which interest was last paid by the
Mortgagor to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders and (iii) the amount of any unreimbursed
Servicing Advances made by the Servicer with respect to such Mortgage Loan.
With respect to any Mortgage Loan required or allowed to be purchased, the
Servicer or the related Seller, as applicable, shall deliver to the Trustee
and the Trust Administrator an Officer's Certificate as to the calculation of
the Purchase Price.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by a
Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit K (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution
(or, in the case of a substitution of more than one mortgage loan for a
Deleted Mortgage Loan, an aggregate principal balance), not in excess of, and
not more than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (iv)
have a remaining term to maturity no greater than (and not more than one year
less than that of) the Deleted Mortgage Loan; and (vi) comply with each
representation and warranty set forth in Section 2.03(b).
Rating Agencies: Xxxxx'x and S&P, or any successor to either
thereto.
Ratings: As of any date of determination, the ratings, if any, of
the Certificates as assigned by the Rating Agencies.
Realized Loss: With respect to any Mortgage Loan, (1) with respect
to each Liquidated Mortgage Loan, an amount (not less than zero or more than
the Stated Principal Balance of the Mortgage Loan) as of the date of such
liquidation, equal to (i) the Stated Principal Balance of the Liquidated
Mortgage Loan as of the date of such liquidation, plus (ii) interest at the
applicable Net Mortgage Rate from the related Due Date as to which interest
was last paid or advanced (and not reimbursed) to Certificateholders up to the
related Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Net Liquidation Proceeds, if any, received
during the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan; (2) for any Mortgage Loan subject to a Deficient
Valuation, the excess of the Stated Principal Balance of that Mortgage Loan
over the principal amount as reduced in connection with the proceedings
resulting in the Deficient Valuation; or (3) for any Debt Service Reduction
Mortgage Loan, the present value of all monthly Debt Service Reductions on the
Mortgage Loan, assuming that the mortgagor pays each Scheduled Payment on the
applicable Due Date and that no Principal Prepayments are received on the
Mortgage Loan, discounted at the applicable Mortgage Rate.
Record Date: With respect to any Distribution Date and the
Certificates other than the LIBOR Certificates held in Book-Entry Form, the
close of business on the last Business Day of the month preceding the month in
which the applicable Distribution Date occurs. With respect to the LIBOR
Certificates that are not Physical Certificates and any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date; provided, however, that following the date on which Definitive
Certificates for a Class of LIBOR Certificates are available pursuant to
Section 5.02, the Record Date shall be the close of business on the last
Business Day of the calendar month immediately preceding the month of such
Distribution Date. The preceding sentences notwithstanding, the Record Date
for the first Distribution Date for all Classes of Certificates shall be May
1, 2001.
Reference Bank Rate: As to any Accrual Period relating to the LIBOR
Certificates as follows: the arithmetic mean (rounded upwards, if necessary,
to the nearest one sixteenth of a percent) of the offered rates for United
States dollar deposits for one month which are offered by the Reference Banks
as of 11:00 A.M., London time, on the Interest Determination Date prior to the
first day of such Accrual Period to prime banks in the London interbank market
for a period of one month in amounts approximately equal to the aggregate
Class Principal Balance of the LIBOR Certificates; provided that at least two
such Reference Banks provide such rate. If fewer than two offered rates
appear, the Reference Bank Rate will be the arithmetic mean of the rates
quoted by one or more major banks in New York City, selected by the Trust
Administrator after consultation with Calmco, as of 11:00 A.M., New York City
time, on such date for loans in U.S. Dollars to leading European banks for a
period of one month in amounts approximately equal to the aggregate Class
Principal Balance of the LIBOR Certificates. If no such quotations can be
obtained, the Reference Bank Rate shall be the Reference Bank Rate applicable
to the preceding Accrual Period.
Reference Banks: Three major banks that are engaged in the London
interbank market, selected by the Trust Administrator after consultation with
Calmco.
Registration Statement: That certain registration statement on Form
S-3, as amended (Registration No. 333-49820), relating to the offering by the
Depositor from time to time of its Mortgage-Backed Pass-Through Certificates
(Issuable in Series) as heretofore declared effective by the Securities and
Exchange Commission.
Regular Certificates: All of the Certificates other than the Class
AR Certificates.
Reimbursement Amount: The meaning set forth in Section
4.01(II)(a)(iv) hereof.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit", within the
meaning of Section 860D of the Code. Reference herein to REMIC refers to the
Master REMIC, REMIC 3, REMIC 2 and the Subsidiary REMIC, as the context
requires.
REMIC Election: An election, for federal income tax purposes, to
treat certain assets as a REMIC.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time.
REMIC 2: As described in the Preliminary Statement.
REMIC 2 Interest: Any one of the REMIC 2 Regular Interests.
REMIC 2 Regular Interest: Any one of the "regular interests" in
REMIC 2 described in the Preliminary Statement.
REMIC 3: As described in the Preliminary Statement.
REMIC 3 Interest: Any one of the REMIC 3 Regular Interests.
REMIC 3 Regular Interest: Any one of the "regular interests" in
REMIC 3 described in the Preliminary Statement.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement in respect of such Mortgage Loan or the related Mortgaged
Property.
Responsible Officer: When used with respect to the Trustee or the
Trust Administrator, shall mean any officer within the corporate trust
department of the Trustee or the Trust Administrator, including any Assistant
Vice President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, any Trust Officer or any other officer of the Trustee or
the Trust Administrator customarily performing functions similar to those
performed by any of the above designated officers, in each case having direct
responsibility for the administration of this Agreement.
Rolling Three Month Delinquency Rate: For any Distribution Date will
be the fraction, expressed as a percentage, equal to the average of the
Delinquency Rates for each of the three (or one and two, in the case of the
first and second Distribution Dates) immediately preceding months.
Rule 144A: Rule 144A under the 1933 Act, as in effect from time to
time.
S&P: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
Scheduled Final Distribution Date: The Distribution Date in June 25,
2031.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan pursuant to the terms of the related Mortgage Note Loan.
Seller: DLJMC, GreenPoint or WMMSC, as applicable.
Senior Certificates: As specified in the Preliminary Statement.
Senior Liquidation Amount: The Group I Senior Liquidation Amount,
Group II Senior Liquidation Amount or the Group IV Senior Liquidation Amount,
as applicable.
Senior Percentage: The Group I Senior Percentage, the Group II
Senior Percentage or the Group IV Senior Percentage as applicable.
Senior Prepayment Percentage: The Senior Prepayment Percentage for
any Distribution Date occurring during the five years beginning on the first
Distribution Date for each of Loan Group I, Loan Group II and Loan Group IV
will equal 100%. The Senior Prepayment Percentage for any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date for
each such Loan Group will be as follows: for any Distribution Date in the
first year thereafter, the related Senior Percentage plus 70% of the related
Subordinate Percentage for such Distribution Date; for any Distribution Date
in the second year thereafter, the related Senior Percentage plus 60% of the
related Subordinate Percentage for such Distribution Date; for any
Distribution Date in the third year thereafter, the related Senior Percentage
plus 40% of the related Subordinate Percentage for such Distribution Date; for
any Distribution Date in the fourth year thereafter, the related Senior
Percentage plus 20% of the related Subordinate Percentage for such
Distribution Date; and for any Distribution Date thereafter, the related
Senior Percentage for such Distribution Date (unless (i) on any of the
foregoing Distribution Dates the related Senior Percentage exceeds the initial
related Senior Percentage, in which case the related Senior Prepayment
Percentage will once again equal 100% or (ii) if the related Subordinate
Percentage is greater than or equal to twice the related Subordinate
Percentage on the Closing Date, in which case the Senior Prepayment Percentage
for each Group will equal the related Senior Percentage).
Notwithstanding the foregoing no decrease in the reduction to the
Senior Prepayment Percentage for Loan Group I, Loan Group II or Loan Group IV,
as applicable, as described above will occur if as of the first Distribution
Date as to which any such decrease applies (i) the outstanding principal
balance of the Mortgage Loans delinquent 60 days or more (averaged over the
preceding six month period), as a percentage of the related aggregate
Subordinate Component Balance as of such Distribution Date is equal to or
greater than 50% and (ii) cumulative Realized Losses in such Loan Group exceed
(a) with respect to the Distribution Date on the fifth anniversary of the
first Distribution Date, 30% of the related aggregate Subordinate Component
Balance as of the Delivery Date (the "Original Subordinate Principal
Balance"), (b) with respect to the Distribution Date on the sixth anniversary
of the first Distribution Date, 35% of the related Original Subordinate
Principal Balance, (c) with respect to the Distribution Date on the seventh
anniversary of the first Distribution Date, 40% of the related Original
Subordinate Principal Balance, (d) with respect to the Distribution Date on
the eighth anniversary of the first Distribution Date, 45% of the related
Original Subordinate Principal Balance and (e) with respect to the
Distribution Date on the ninth anniversary of the first Distribution Date, 50%
of the Original Subordinate Principal Balance.
If on any Distribution Date the allocation to the Group I, Group II
or Group IV Certificates of Principal Prepayments in the percentage required
would reduce the aggregate Class Principal Balance of such Certificates below
zero, the Group I Senior Prepayment Percentage, the Group II Senior Prepayment
Percentage or the Group IV Senior Prepayment Percentage, as applicable, for
such Distribution Date shall be limited to the percentage necessary to reduce
the aggregate Class Principal Balance of such Certificates to zero.
Notwithstanding the foregoing, however, on each Distribution Date, the Class
A-P Certificates will receive the applicable Class P Fraction of all principal
payments, including, without limitation, Principal Prepayments, received in
respect of Class I-P, Class II-P and Class IV-P Mortgage Loans.
Senior Principal Distribution Amount: The Group I Senior Principal
Distribution Amount, the Group II Senior Principal Distribution Amount or the
Group IV Senior Principal Distribution Amount, as applicable.
Servicers: WMMSC and CMMC, and any successor in interest or any
successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicer Mortgage File: All documents pertaining to a Mortgage Loan
not required to be included in the Trustee Mortgage File and held by the
Servicer or any Sub-Servicer.
Servicing Advance: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by a Servicer of its
servicing obligations, including, but not limited to, the cost (including
reasonable attorneys' fees and disbursements) of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any expenses
reimbursable to a Servicer pursuant to Section 3.11 and any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of any REO Property (including default management and similar
services, appraisal services and real estate broker services); (iv) any
expenses incurred by a Servicer in connection with obtaining an environmental
inspection or review pursuant to the second paragraph of Section 3.11(a) and
(v) compliance with the obligations under Section 3.09.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount equal to one month's interest at the Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
of such Distribution Date (prior to giving effect to any Scheduled Payments
due on such Mortgage Loan on such Due Date), subject to reduction as provided
in Section 3.14.
Servicing Fee Rate: As to each Mortgage Loan, the per annum rate set
forth on the related Mortgage Loan Schedule (which may be disclosed in two
parts identified as the servicing fee and the master servicing fee).
Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage
Loans whose name and specimen signature appear on a list of servicing officers
furnished to the Trustee and the Trust Administrator by a Servicer on the
Closing Date pursuant to this Agreement, as such list may from time to time be
amended and delivered to the Trustee.
Special Hazard Loss: A Realized Loss (or portion thereof) with
respect to a Mortgage Loan arising from any direct physical loss or damage to
a Mortgaged Property which is not covered by a standard hazard maintenance
policy with extended coverage or by a flood insurance policy, if applicable
(or which would not have been covered by such a policy had such a policy been
maintained), which is caused by or results from any cause except: (i) wear and
tear, deterioration, rust or corrosion, mold, wet or dry rot, inherent vice or
latent defect, animals, birds, vermin, insects; (ii) settling, subsidence,
cracking, shrinkage, bulging or expansion of pavements, foundations, walls,
floors, roofs or ceilings; (iii) errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or part thereof ensues
and then only for the ensuing loss; (iv) nuclear or chemical reaction or
nuclear radiation or radioactive or chemical contamination, all whether
controlled or uncontrolled, and whether such loss be direct or indirect,
proximate or remote; (v) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an actual,
impending or expected attack (a) by any government of sovereign power, de jure
or de facto, or by any authority maintaining or using military, naval or air
forces, (b) by military, naval or air forces, or (c) by an agent of any such
government, power, authority or forces; (vi) any weapon of war employing
atomic fission or radioactive force whether in time of peace or war; or (vii)
insurrection, rebellion, revolution, civil war, usurped power or action taken
by governmental authority in hindering, combating or defending against such
occurrence, seizure or destruction under quarantine or customs regulations,
confiscation by order of any government or public authority, or risks of
contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: As of the Closing Date,
$4,266,717 subject in each case to reduction from time to time, to be an
amount equal on any distribution date to the lesser of (a) the greatest of (i)
1% of the aggregate of the principal balances of the Mortgage Loans, (ii)
twice the principal balance of the largest Mortgage Loan and (iii) the
aggregate principal balances of the Mortgage Loans secured by Mortgaged
Properties located in the single California postal zip code area having the
highest aggregate principal balance of any such zip code area and (b) the
Special Hazard Loss Coverage Amount as of the closing date less the amount, if
any, of losses attributable to Special Hazard Mortgage Loans incurred since
the closing date. All principal balances for the purpose of this definition
will be calculated as of the first day of the month preceding such
distribution date after giving effect to scheduled installments of principal
and interest on the mortgage loans then due, whether or not paid.
Special Hazard Loss Coverage Termination Date: The point in time at
which the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss Mortgage Loan: A Mortgage Loan with respect to
which there has been a Special Hazard Loss.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to any previous
Curtailments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due
on such Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Stepdown Date: The date occurring on the later of (x) the
Distribution Date in June 2004 and (y) the first Distribution Date on which
the Senior Enhancement Percentage (calculated for this purpose after giving
effect to payments or other recoveries in respect of the Mortgage Loans in
Loan Group IV during the related Collection Period but before giving effect to
payments on the Group IV Certificates on such Distribution Date) is greater
than or equal to 5.50%.
Stepdown Percentage: For any Distribution Date, the percentage
indicated below:
DISTRIBUTION DATE OCCURRING IN STEPDOWN PERCENTAGE
------------------------------ -------------------
June 2001 through May 2006 0%
June 2006 through May 2007 30%
June 2007 through May 2008 40%
June 2008 through May 2009 60%
June 2009 through May 2010 80%
June 2010 and after 100%
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Component Balance: For any of Loan Group I, Loan Group
II or Loan Group IV as of any date of determination, the then outstanding
aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group
(minus the applicable Class P Fraction of any applicable Class P Mortgage
Loan) minus the sum of the then outstanding aggregate Class Principal Balance
of the related Class A Certificates and, in the case of Loan Group I, the
Class AR Certificates.
Subordinate Liquidation Amount: For any Distribution Date, the
excess, if any, of the aggregate Liquidation Principal of all Mortgage Loans
which became Liquidated Mortgage Loans during the related Prepayment Period
over the sum of the Group I Senior Liquidation Amount, the Group II Senior
Liquidation Amount and the Group IV Senior Liquidation Amount for such
Distribution Date.
Subordinate Percentage: As to any Distribution Date and Loan Group
I, Loan Group II or Loan Group IV, the excess of 100% over the related Senior
Percentage for that Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
with respect to Loan Group I, Loan Group II or Loan Group IV, 100% minus the
related Senior Prepayment Percentage for such Distribution Date; provided,
however, that if the aggregate Class Principal Balance of the Senior
Certificates related to such Loan Group has been reduced to zero, then the
Subordinate Prepayment Percentage for such Loan Group will equal 100%.
Subordinate Principal Distribution Amount: For any Distribution
Date, the excess of (A) the sum of (i) the Group I Subordinate Percentage of
the Principal Payment Amount for Loan Group I (exclusive of the portion
thereof attributable to the Class I-P Principal Distribution Amount), (ii) the
Group II Subordinate Percentage of the Principal Payment Amount for Loan Group
II (exclusive of the portion thereof attributable to the Class II-P Principal
Distribution Amount), and (iii) the Group IV Subordinate Percentage of the
Principal Payment Amount for Loan Group IV (exclusive of the portion thereof
attributable to the Class IV-P Principal Distribution Amount), (iv) the
Subordinate Principal Prepayments Distribution Amount (without regard to the
proviso in its definition), and (v) the Subordinate Liquidation Amount over
(B) the sum of (x) the amounts required to be distributed to the Class A-P
Certificates pursuant to Section 4.01 I(A)(d)(i) on that Distribution Date,
(y) if one or more of the aggregate Class Principal Balance of the Group I
Certificates, the aggregate Class Principal Balance of the Group II
Certificates or the aggregate Class Principal Balance of the Group IV
Certificates has been reduced to zero, principal paid from the Available
Distribution Amount of the Loan Group related to such paid in full classes to
the remaining paid in full classes, as described in Section 4.06(a), and (z)
the amounts paid from the Available Distribution Amount for the
Overcollateralized Group to the Senior Certificates of the Undercollateralized
Group or Groups, as described Section 4.06(b).
Subordinate Principal Prepayments Distribution Amount: For any
Distribution Date, the sum of (i) the Subordinate Prepayment Percentage of the
Principal Prepayment Amount for Loan Group I, (exclusive of the portion
attributable to the Class I-P Principal Distribution Amount) (ii) the
Subordinate Prepayment Percentage of the Principal Prepayment Amount for Loan
Group II (exclusive of the portion attributable to the Class II-P Principal
Distribution Amount); and (iii) the Subordinate Prepayment Percentage of the
Principal Prepayment Amount for Loan Group IV (exclusive of the portion
attributable to the Class IV-P Principal Distribution Amount); provided,
however, that if the amount specified in clause (B) of the definition of
"Subordinate Principal Distribution Amount" is greater than the sum of the
amounts specified in clauses (A)(i), (A)(ii), (A)(iii) and (A)(v) of that
definition, then the Subordinate Principal Prepayments Distribution Amount
will be reduced by the amount of that excess.
Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC Regular
Interests.
Subsidiary REMIC Regular Interest: Any one of the "regular
interests" in either Subsidiary REMIC described in the Preliminary Statement.
Sub-Servicer: Any other entity with respect to any Mortgage Loan
under any Sub-Servicing Agreement applicable to such Mortgage Loan and any
successors and assigns under such Sub-Servicing Agreement.
Sub-Servicing Agreement: Any servicing agreement between a Servicer
and a Sub-Servicer pursuant to which a Servicer delegates any of its servicing
responsibilities with respect to any of the Mortgage Loans.
Subordinate Certificates: As specified in the Preliminary Statement.
Substitution Adjustment Amount: As defined in Section 2.04.
Targeted Balance: With respect to the Class III-A-2, Class III-A-4,
Class III-A-5 and Class III-A-6 Certificates, and any Distribution Date
appearing on Schedule VII hereto, the applicable amount appearing opposite
such Distribution Date for the aggregate of such classes. With respect to the
Class III-A-12 and Class III-A-14 Certificates, and any Distribution Date
appearing on Schedule VIII hereto, the applicable amount appearing opposite
such Distribution Date for the aggregate of such classes. With respect to only
the Class III-A-12 Certificates, and any Distribution Date appearing on
Schedule IX hereto, the applicable amount appearing opposite such Distribution
Date for the Class III-A-12 Certificates.
Targeted Overcollateralization Amount: For any Distribution Date
prior to the Stepdown Date, .50% of the Aggregate Loan Group Balance of Loan
Group III as of the Cut-off Date; with respect to any Distribution Date on or
after the Stepdown Date and with respect to which a Trigger Event has not
occurred, the greater of (a) 1.00 % of the Aggregate Loan Group Balance of
Loan Group III for such Distribution Date, or (b) 0.50% of the Aggregate Loan
Group Balance of Loan Group III as of the Cut-off Date; with respect to any
Distribution Date on or after the Stepdown Date with respect to which a
Trigger Event has occurred and is continuing, the Targeted
Overcollateralization Amount for the Distribution Date immediately preceding
such Distribution Date.
Targeted Principal Classes: As specified in the Preliminary
Statement.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulationss. 1.860F-4(d) and temporary
Treasury regulationss. 301.6231(a)(7)-1T. Initially, the Tax Matters Person
shall be the Trust Administrator.
Telerate Page 3750: The display designated as page 3750 on Bridge
Telerate Service (or such other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks).
Tier 2 Accretion Directed Classes: The Class 3-III-A-1, Class
3-III-A-2, Class 3-III-A-3, Class 3-III-A-4, Class 3-III-A-5, Class 3-III-A-6,
Class 3-III-A-8, Class 3-III-A-10, Class 3-III-A-11, Class 3-III-A-12, Class
3-III-A-14 and Class 3-III-A-15 Regular Interests.
Transferee Affidavit and Agreement: As defined in Section
6.02(g)(i)(B).
Trigger Event: A Trigger Event will occur for any Distribution Date
if the Rolling Three Month Delinquency Rate as of the last day of the related
Collection Period equals or exceeds approximately 9.00%.
Trust Administrator: The Chase Manhattan Bank, a New York banking
corporation, not in its individual capacity, but solely in its capacity as
trust administrator for the benefit of the Certificateholders under this
Agreement, and any successor thereto, as provided herein.
Trust Fund: The corpus of the trust created by this Agreement
consisting of (a) the Mortgage Loans listed in the Mortgage Loan Schedule,
including all interest and principal received or receivable by the Depositor
on or with respect to the Mortgage Loans after the Cut-off Date, but not
including payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date, together with the Mortgage Files relating
to the Mortgage Loans, (b) REO Property, (c) the funds on deposit in the
Collection Account relating to the Mortgage Loans and the Certificate Account
and all amounts deposited in the Certificate Account pursuant to the
applicable provisions of this Agreement, (d) any insurance policies with
respect to the Mortgage Loans, including the MGIC PMI Policy, and (e) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid property.
Trustee: Bank One, National Association, a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and
any successor thereto, as provided herein.
Trustee Mortgage File: The mortgage documents listed in Section 2.01
hereof pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Trustee Mortgage File pursuant to this Agreement.
Undercollateralized Group: As defined in Section 4.06.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58,
65 Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
99% of all Voting Rights shall be allocated among the Class A, Class III-M,
Class A-P and Group C-B Certificates. The portion of such 99% Voting Rights
allocated to each of the Class A, Class III-M, Class A-P and Group C-B
Certificates shall be based on the fraction, expressed as a percentage, the
numerator of which is the aggregate Class Principal Balance then outstanding
and the denominator of which is the Class Principal Balance of all Classes
then outstanding. The Class III-X Certificates shall be allocated 1% of the
Voting Interest. Voting Interests shall be allocated among the Certificates
within each such Class (other than the Class III-X Certificates, which has
only one certificate) in proportion to their respective outstanding Class
Principal Balances. The Class AR shall have no voting rights.
Weighted Average Group I Pass-Through Rate: With respect to any
Distribution Date, the average Pass-Through Rate of the Group III Senior
Certificates for such Distribution Date, weighted on the basis of the Class
Principal Balances of such Classes immediately prior to such Distribution
Date.
Weighted Average Group II Pass-Through Rate: With respect to any
Distribution Date, the average Pass-Through Rate of the Group II Senior
Certificates for such Distribution Date, weighted on the basis of the Class
Principal Balances of such Classes immediately prior to such Distribution
Date.
Weighted Average Group IV Pass-Through Rate: With respect to any
Distribution Date, the average Pass-Through Rate of the Group IV Senior
Certificates for such Distribution Date, weighted on the basis of the Class
Principal Balances of such Classes immediately prior to such Distribution
Date.
WMMSC: Washington Mutual Mortgage Securities Corp., a Delaware
corporation, and its successors and assigns.
WMMSC Loans: The Mortgage Loans identified as such in the Mortgage
Loan Schedule, for which WMMSC is the applicable Seller.
WMMSC Serviced Mortgage Loan: The Mortgage Loans, identified as such
in the Mortgage Loan Schedule, for which WMMSC is the applicable Servicer.
WMMSC Subserviced Mortgage Loan: The Mortgage Loans identified as
such in the Mortgage Loan Schedule, for which CMMC is the applicable Servicer,
and which are subserviced by WMMSC for CMMC.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund.
(a) The Depositor hereby sells, transfers, assigns, delivers, sets
over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, the Depositor's right, title and
interest in and to (a) subject to Section 7.04(b), the Mortgage Loans listed
in the Mortgage Loan Schedule, including all interest and principal received
or receivable by the Depositor on or with respect to the Mortgage Loans after
the Cut-off Date, but not including payments of principal and interest due and
payable on the Mortgage Loans on or before the Cut-off Date, which Mortgage
Loans the Depositor shall cause to be delivered to the Trustee on or prior to
the Closing Date, together with the Trustee Mortgage Files relating to the
Mortgage Loans, (b) REO Property, (c) the Collection Account and the
Certificate Account, and all amounts deposited therein pursuant to the
applicable provisions of this Agreement, (d) any insurance policy with respect
to the Mortgage Loans, (e) the Depositor's rights under the Assignment and
Assumption Agreement and (f) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property. In
addition, on or prior to the Closing Date, the Depositor shall cause FSA to
deliver the Certificate Insurance Policy to the Trust Administrator and MGIC
to deliver the MGIC Policy to the Trust Administrator.
(b) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to the
Trustee or the Custodian for the benefit of the Certificateholders, the
documents and instruments with respect to each Mortgage Loan as assigned:
(i) (A) the original Mortgage Note bearing all intervening
endorsements and including any riders to the Mortgage Note, endorsed
"Pay to the order of ________________, without recourse" and signed
in the name of the last named endorsee by an authorized officer or
(B) with respect to any Lost Mortgage Note, a lost note affidavit and
indemnity from the related Seller stating that the original Mortgage
Note was lost or destroyed, (together with a copy of such Mortgage
Note, if available) and indemnifying the Trust Fund against any loss,
cost or liability resulting from the failure to deliver the original
Mortgage Note;
(ii) the original of any guarantee executed in connection with
the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon,
or copies certified by the related recording office or if the
original Mortgage has not yet been returned from the recording
office, a copy certified by or on behalf of the related Seller
indicating that such Mortgage has been delivered for recording. The
return directions for the original Mortgage should indicate, when
recorded, mail to the related Seller;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, (or, if an original of any of
these documents has not been returned from the recording office, a
copy thereof certified by or on behalf of the applicable Seller, the
original to be delivered to such Seller forthwith after return from
such recording office) with evidence of recording thereon, if any;
(v) the original Assignment of Mortgage as appropriate, in
recordable form, for each Mortgage Loan assigned in blank;
(vi) the originals of any intervening recorded Assignments of
Mortgage, showing a complete chain of assignment from origination to
the related Seller, including warehousing assignments, with evidence
of recording thereon (or, if an original intervening Assignment of
Mortgage has not been returned from the recording office, a copy
thereof certified by or on behalf of the applicable Seller, the
original to be delivered to the Trustee forthwith after return from
such recording office); and
(vii) the original mortgage title insurance policy, or copy of
title commitment (or in appropriate jurisdictions, attorney's
opinion of title and abstract of title).
In the event the Depositor delivers to the Trustee or the Custodian
certified copies of any document or instrument set forth in 2.01(b) because of
a delay caused by the public recording office in returning any recorded
document, the Depositor shall deliver or cause to be delivered to the Trustee
or the Custodian, within 60 days of the Closing Date, an Officer's Certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Trustee or the Custodian due solely to
a delay caused by the public recording office, and (iii) state the amount of
time generally required by the applicable recording office to record and
return a document submitted for recordation.
In the event that in connection with any Mortgage Loan the Depositor
cannot deliver (a) the original recorded Mortgage, (b) all interim recorded
assignments or (c) the lender's title policy (together with all riders
thereto) satisfying the requirements set forth above, concurrently with the
execution and delivery hereof because such document or documents have not been
returned from the applicable public recording office in the case of clause (a)
or (b) above, or because the title policy has not been delivered to the
applicable Seller or the Depositor by the applicable title insurer in the case
of clause (c) above, the Depositor shall promptly deliver to the Trustee, in
the case of clause (a) or (b) above, such original Mortgage or such interim
assignment, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, the Trust
Administrator or the Custodian shall (i) affix the Trustee's name to each
Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to
be in proper form for recording in the appropriate public office for real
property records within thirty (30) days after receipt thereof and (iii) cause
to be delivered for recording in the appropriate public office for real
property records the assignments of the Mortgages to the Trustee, except that,
with respect to any assignment of a Mortgage as to which the Trust
Administrator has not received the information required to prepare such
assignment in recordable form, the Trust Administrator's obligation to do so
and to deliver the same for such recording shall be as soon as practicable
after receipt of such information and in any event within thirty (30) days
after the receipt thereof, and the Trust Administrator need not cause to be
recorded any assignment which relates to a Mortgage Loan in any jurisdiction
under the laws of which, as evidenced by an Opinion of Counsel delivered by
the Depositor (at the Depositor's expense) to the Trustee and the Trust
Administrator, acceptable to the Rating Agencies, the recordation of such
assignment is not necessary to protect the Trustee's and the
Certificateholders' interest in the related Mortgage Loan.
If any original Mortgage Note referred to in Section 2.01(b)(i)
above cannot be located, the obligations of the Depositor to deliver such
documents shall be deemed to be satisfied upon delivery to the Trustee or the
Custodian of a photocopy of such Mortgage Note, if available, with a lost note
affidavit and indemnity. If any of the original Mortgage Notes for which a
lost note affidavit and indemnity was delivered to the Trustee or the
Custodian is subsequently located, such original Mortgage Note shall be
delivered to the Trustee or the Custodian within three Business Days.
(c) The Trustee is authorized to appoint any bank or trust company
approved by the Depositor as Custodian of the documents or instruments
referred to in this Section 2.01, and to enter into a Custodial Agreement for
such purpose and any documents delivered thereunder shall be delivered to the
Custodian and any Officer's Certificates delivered with respect thereto shall
be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that
the conveyance of the Mortgage Loans by the Depositor to the Trustee as
provided in this Section 2.01 be, and be construed as, a sale of the Mortgage
Loans by the Depositor to the Trustee. It is, further, not the intention of
the parties to this Agreement that such conveyance be deemed a pledge of the
Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties to this Agreement, the Mortgage Loans are held to be the
property of the Depositor, or if any for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans then (a)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code; (b) the
conveyance provided for in this Section 2.01 shall be deemed to be a grant by
the Depositor to the Trustee for the benefit of the Certificateholders of a
security interest in all of the Depositor's right, title and interest in and
to the Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, whether in the form of cash, instruments, securities or other
property; (c) the possession by the Trustee or any Custodian of such items of
property and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "in possession by
the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the New York Uniform Commercial Code; and (d)
notifications to persons holding such property, and acknowledgments, receipts
or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Trustee for
the benefit of the Certificateholders for the purpose of perfecting such
security interest under applicable law (except that nothing in this clause (d)
shall cause any person to be deemed to be an agent of the Trustee for any
purpose other than for perfection of such security interests unless, and then
only to the extent, expressly appointed and authorized by the Trustee in
writing). The Depositor and the Trustee, upon directions from the Depositor,
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement.
SECTION 2.02 Acceptance by the Trustee.
(a) The Trustee acknowledges receipt of the documents identified in
the Initial Certification in the form annexed hereto as Exhibit I and declares
that it holds and will hold such documents and the other documents delivered
to it constituting the Mortgage Files, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive use
and benefit of all present and future Certificateholders. The Trustee
acknowledges that it will maintain possession of the Mortgage Notes in the
State of Texas, with respect to the Group II Mortgage Loans, and the State of
Massachusetts, with respect to Group I Mortgage Loans, Group III Mortgage
Loans and Group IV Mortgage Loans, unless otherwise permitted by the Rating
Agencies.
The Trustee or the Custodian agrees to execute and deliver on the
Closing Date to the Depositor, each Seller and Servicer an Initial
Certification in the form annexed hereto as Exhibit I. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the Trustee or the Custodian acknowledges that such documents
appear regular on their face and relate to such Mortgage Loan. The Trustee or
the Custodian shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
Not later than 90 days after the Closing Date, the Trustee or
Custodian shall deliver to the Depositor, each Seller and the Trust
Administrator a Final Certification in the form annexed hereto as Exhibit J,
with any applicable exceptions noted thereon.
If, in the course of such review, the Trustee or Custodian finds any
document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, the Trustee or Custodian shall list such as an
exception in the Final Certification; provided, however, that the Trustee or
Custodian shall not make any determination as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to which
the assignment relates.
The related Seller shall promptly correct or cure such defect within
90 days from the date it was so notified of such defect and, if such Seller
does not correct or cure such defect within such period, such Seller shall
either (a) substitute for the related Mortgage Loan a Qualified Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase such
Mortgage Loan from the Trustee or Custodian within 90 days from the date such
Seller was notified of such defect in writing at the Purchase Price of such
Mortgage Loan; or such longer period not to exceed 720 days from the Closing
Date if the substitution or repurchase of a Mortgage Loan pursuant to this
provision is required by reason of a delay in delivery of any documents by the
appropriate recording office; provided, however, that a Seller shall have no
liability for recording any Assignment of Mortgage in favor of the Trustee or
for the Trustee's failure to record such Assignment of Mortgage, and provided,
further, that no Seller shall be obligated to repurchase or cure any Mortgage
Loan solely as a result of the Trustee's failure to record such Assignment of
Mortgage. The Trustee shall deliver written notice to each Rating Agency
within 270 days from the Closing Date indicating each Mortgage Loan (a) for
which a mortgage or assignment of mortgage required to be recorded hereunder
has not been returned by the appropriate recording office or (b) as to which
there is a dispute as to location or status of such Mortgage Loan. Such notice
shall be delivered every 90 days thereafter until the related Mortgage Loan is
returned to the Trustee. Any such substitution pursuant to (a) above or
purchase pursuant to (b) above shall not be effected prior to the delivery to
the Trustee of the Opinion of Counsel required by Section 2.05 hereof, if any,
and any substitution pursuant to (a) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit K. No substitution is permitted to be made in any calendar
month after the Determination Date for such month. The Purchase Price for any
such Mortgage Loan shall be deposited by the applicable Seller in the
Certificate Account on or prior to the Business Day immediately preceding such
Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form of
Exhibit K hereto, the Trustee shall release the related Mortgage File to such
Seller and shall execute and deliver at such entity's request such instruments
of transfer or assignment prepared by such entity, in each case without
recourse, as shall be necessary to vest in such entity, or a designee, the
Trustee's interest in any Mortgage Loan released pursuant hereto.
(b) It is understood and agreed that the obligation of each Seller
to cure, substitute for or to repurchase any Mortgage Loan which does not meet
the requirements of Section 2.01 shall constitute the sole remedy respecting
such defect available to the Trustee, the Trust Administrator, the Depositor
and any Certificateholder against such Seller.
SECTION 2.03 Representations and Warranties of the Sellers and
Servicers.
(a) Each of DLJMC, in its capacity as Seller, GreenPoint, in its
capacity as Seller, WMMSC, in its capacity as Seller and Servicer, and CMMC,
in its capacity as Servicer, hereby makes the representations and warranties
applicable to it set forth in Schedule IIA, IIB, IIC or IID, as applicable
hereto, and by this reference incorporated herein, to the Depositor, the Trust
Administrator and the Trustee, as of the Closing Date, or if so specified
therein, as of the Cut-off Date or such other date as may be specified.
(b) Each of DLJMC, GreenPoint and WMMSC, in their capacities as
Sellers, hereby makes the representations and warranties set forth in Schedule
IIIA, IIIB or IIIC, as applicable hereto applicable to the DLJ Loans, the
GreenPoint Loans or the WMMSC Loans, respectively, and by this reference
incorporated herein, to the Depositor, the Trustee and the Trust
Administrator, as of the Closing Date, or if so specified therein, as of the
Cut-off Date or such other date as may be specified.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Each Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made by it pursuant to Section
2.03(b) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan sold by such Seller to the Trust, it
shall cure such breach in all material respects, and if such breach is not so
cured, shall, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Qualified
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below; provided, however, that any such substitution pursuant to (i) above
shall not be effected prior to the delivery to the Trustee and the Trust
Administrator of the Opinion of Counsel required by Section 2.05 hereof, if
any, and any such substitution pursuant to (i) above shall not be effected
prior to the additional delivery to the Trustee or Trust Administrator of a
Request for Release substantially in the form of Exhibit K relating to the
Deleted Mortgage Loan and the Mortgage File for any such Qualified Substitute
Mortgage Loan. The related Seller shall promptly reimburse the Trustee and the
Trust Administrator for any actual out-of-pocket expenses reasonably incurred
by the Trustee and Trust Administrator in respect of enforcing the remedies
for such breach. With respect to any representation and warranties described
in this Section which are made to the best of a Seller's knowledge if it is
discovered by either the Depositor, any Seller, any Servicer, the Trustee or
the Trust Administrator that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of the related Mortgage Loan or the interests of the Certificateholders
therein, notwithstanding such Seller's lack of knowledge with respect to the
substance of such representation or warranty, such inaccuracy shall be deemed
a breach of the applicable representation or warranty.
With respect to any Qualified Substitute Mortgage Loan or Loans, the
applicable Seller shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by
Section 2.01(b), with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. Scheduled Payments
due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
applicable Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter such
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The applicable Seller shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Qualified Substitute
Mortgage Loan or Loans and such Seller shall deliver the amended Mortgage Loan
Schedule to the Trustee, Servicer and Trust Administrator. Upon such
substitution, the Qualified Substitute Mortgage Loan or Loans shall be subject
to the terms of this Agreement in all respects, and the applicable Seller
shall be deemed to have made with respect to such Qualified Substitute
Mortgage Loan or Loans, as of the date of substitution, the representations
and warranties made pursuant to Section 2.03(b) with respect to such Mortgage
Loan. Upon any such substitution and the deposit to the Collection Account of
the amount required to be deposited therein in connection with such
substitution as described in the following paragraph, the Trustee or
Custodian, as applicable shall release the Mortgage File held for the benefit
of the Certificateholders relating to such Deleted Mortgage Loan to the
applicable Seller and shall execute and deliver at such Seller's direction
such instruments of transfer or assignment prepared by such Seller, in each
case without recourse, as shall be necessary to vest title in such Seller, or
its designee, the Trustee's interest in any Deleted Mortgage Loan substituted
for pursuant to this Section 2.03.
For any month in which a Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer
shall determine the amount (if any) by which the aggregate principal balance
of all such Qualified Substitute Mortgage Loans as of the date of substitution
is less than the aggregate Stated Principal Balance of all such Deleted
Mortgage Loans (after application of the scheduled principal portion of the
monthly payments due in the month of substitution). The amount of such
shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be deposited in the Collection Account by the related Seller on or
before the Business Day immediately preceding the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be repurchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Collection Account on or
before the Business Day immediately preceding the Distribution Date in the
month following the month during which such Seller became obligated hereunder
to repurchase or replace such Mortgage Loan and upon such deposit of the
Purchase Price, the delivery of the Opinion of Counsel if required by Section
2.05 and receipt of a Request for Release in the form of Exhibit K hereto, the
Trustee, the Trust Administrator or Custodian, as applicable, shall release
the related Mortgage File held for the benefit of the Certificateholders to
such Person, and the Trustee shall execute and deliver at such Person's
direction such instruments of transfer or assignment prepared by such Person,
in each case without recourse, as shall be necessary to transfer title from
the Trustee. It is understood and agreed that the obligation under this
Agreement of any Person to cure, repurchase or substitute any Mortgage Loan as
to which a breach has occurred and is continuing shall constitute the sole
remedy against such Persons respecting such breach available to
Certificateholders, the Depositor, the Trustee or the Trust Administrator on
their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee,
Trust Administrator or Custodian for the benefit of the Certificateholders.
SECTION 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans that, as of the Closing Date, assuming good
title has been conveyed to the Depositor, the Depositor had good title to the
Mortgage Loans and Mortgage Notes, and did not encumber the Mortgage Loans
during its period of ownership thereof, other than as contemplated by the
Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the Mortgage Files to
the Trustee.
SECTION 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 shall be made more than 90 days after
the Closing Date unless the applicable Seller delivers to the Trustee and the
Trust Administrator an Opinion of Counsel, which Opinion of Counsel shall not
be at the expense of either the Trustee, the Trust Administrator or the Trust
Fund, addressed to the Trustee and the Trust Administrator, to the effect that
such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause the REMIC hereunder to fail to qualify as a REMIC at any time
that any Certificates are outstanding.
SECTION 2.06 Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
together with the assignment to it of all other assets included in the Trust
Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trust Administrator
pursuant to the written request of the Depositor executed by an officer of the
Depositor, has executed the Certificates and caused them to be authenticated
and delivered to or upon the order of the Depositor in authorized
denominations which evidence ownership of the Trust Fund. The rights of the
Holders of such Certificates to receive distributions from the Trust Fund and
all ownership interests of the Holders of the Certificates in such
distributions shall be as set forth in this Agreement.
SECTION 2.07 REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trust
Administrator to treat the Trust Fund as four separate REMICs (the "REMIC")
under the Code and, if necessary, under applicable state law. Each such
election will be made on Form 1066 or other appropriate federal tax or
information return (including Form 8811) or any appropriate state return (x)
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued and (y) for the taxable year ending on the last day of
the calendar year in which Certificates are first sold to a third party. The
Closing Date is hereby designated as the "startup day" of each REMIC within
the meaning of Section 860G(a)(9) of the Code. The "regular interests" (within
the meaning of Section 860G of the Code) in the Master REMIC shall consist of
the Regular Certificates and the "Class AR Certificates shall represent the
beneficial ownership of the "residual interest" in each REMIC. Neither the
Depositor nor the Trust Administrator nor the Trustee shall permit the
creation of any "interests" (within the meaning of Section 860G of the Code)
in any REMIC other than the Certificates.
(b) The Trust Administrator on behalf of the Holders of the Class AR
Certificates, shall act as agent for the Class AR Certificateholder as the
"tax matters person" (within the meaning of the REMIC Provisions) for each
REMIC, in the manner provided under Treasury regulations section 1.860F-4(d)
and temporary Treasury regulations section 301.6231(a)(7)-1T. By its
acceptance of a Class AR Certificate, each Holder thereof shall have agreed to
such appointment and shall have consented to the appointment of the Trust
Administrator as its agent to act on behalf of each REMIC pursuant to the
specific duties outlined herein.
(c) A Holder of the Class AR Certificates, by the purchase of such
Certificates, shall be deemed to have agreed to timely pay, upon demand by the
Trust Administrator, the amount of any minimum California state franchise
taxes due with respect to each REMIC under Sections 23151(a) and 23153(a) of
the California Revenue and Taxation Code. Notwithstanding the foregoing, the
Trust Administrator shall be authorized to retain the amount of such tax from
amounts otherwise distributable to such Holder in the event such Holder does
not promptly pay such amount upon demand by the Trustee. In the event that any
other federal, state or local tax is imposed, including without limitation
taxes imposed on a "prohibited transaction" of a REMIC as defined in Section
860F of the Code, such tax shall be charged against amounts otherwise
available for distribution to the applicable Holder of a Class AR Certificate
and then against amounts otherwise available for distribution to the Holders
of Regular Certificates in accordance with the provisions set forth in Section
4.01. The Trust Administrator shall promptly deposit in the Certificate
Account any amount of "prohibited transaction" tax that results from a breach
of the Trust Administrator's duties under this Agreement. The Servicer shall
promptly deposit in the Certificate Account any amount of "prohibited
transaction" tax that results from a breach of the Servicer's duties under
this Agreement.
(d) The Trust Administrator shall act as attorney-in-fact and as
agent on behalf of the tax matters person of each REMIC and in such capacity
the Trust Administrator shall: (i) prepare, sign and file, or cause to be
prepared, signed and filed, federal and state tax returns using a calendar
year as the taxable year for each REMIC when and as required by the REMIC
Provisions and other applicable federal income tax laws as the direct
representative of each such REMIC in compliance with the Code and shall
provide copies of such returns as required by the Code; (ii) make an election,
on behalf of each REMIC, to be treated as a REMIC on the federal tax return of
such REMIC for its first taxable year, in accordance with the REMIC
Provisions; and (iii) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to any governmental taxing authority
all information reports as and when required to be provided to them in
accordance with the REMIC Provisions. The expenses of preparing and filing
such returns shall be borne by the Trust Administrator. The Depositor and
Servicer shall provide on a prompt and timely basis to the Trust Administrator
or its designee such information with respect to each REMIC as is in their
possession and reasonably required or requested by the Trust Administrator to
enable it to perform its obligations under this subsection.
In its capacity as attorney-in-fact and as agent on behalf of the
tax matters person, the Trust Administrator shall also: (A) act on behalf of
each REMIC in relation to any tax matter or controversy involving the Trust
Fund, (B) represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto and (C) cause to be paid solely from the
sources provided herein the amount of any taxes imposed on each REMIC when and
as the same shall be due and payable (but such obligation shall not prevent
the Trust Administrator or any other appropriate Person from contesting any
such tax in appropriate proceedings and shall not prevent the Trust
Administrator from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings).
(e) The Trust Administrator shall provide (i) to any transferor of a
Class AR Certificate such information as is necessary for the application of
any tax relating to the transfer of a Class AR Certificate to any Person who
is not a permitted transferee, (ii) to the Certificateholders such information
or reports as are required by the Code or the REMIC Provisions including
reports relating to interest, original issue discount and market discount or
premium and (iii) to the Internal Revenue Service the name, title, address and
telephone number of the person who will serve as the representative of each
REMIC.
(f) The Trustee, to the extent directed by the Trust Administrator,
the Depositor and the Holder of the Class AR Certificates shall take any
action or cause the Trust Fund to take any action necessary to create or
maintain the status of each REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status.
Neither the Trustee, to the extent directed by the Trust Administrator, nor
the Holder of the Class AR Certificates shall take any action, cause the Trust
Fund to take any action or fail to take (or fail to cause the Trust Fund to
take) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of each REMIC as a REMIC or
(ii) result in the imposition of a tax upon a REMIC (including, but not
limited to, the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth in Section
860G(d) of the Code) (either such event, an "Adverse REMIC Event") unless the
Trustee and the Trust Administrator has received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition
of such a tax.
The Trustee and the Trust Administrator shall not take or fail to
take any action (whether or not authorized hereunder) as to which a Servicer
or Depositor has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action. In addition, prior to taking any action with respect to a REMIC
or their assets, or causing any REMIC created hereunder to take any action,
which is not expressly permitted under the terms of this Agreement, the
Trustee and the Trust Administrator will consult with the Servicers and
Depositor or their designees, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to any REMIC created
hereunder and the Trustee and the Trust Administrator shall not take any such
action or cause that REMIC to take any such action as to which any Servicer or
Depositor has advised it in writing that an Adverse REMIC Event could occur.
In addition, prior to taking any action with respect to any REMIC
created hereunder or the assets therein, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Holder of the Class AR Certificates will consult with
the Trust Administrator or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
REMIC created hereunder, and no such Person shall take any action or cause the
Trust Fund to take any such action as to which the Trustee or the Trust
Administrator has advised it in writing that an Adverse REMIC Event could
occur. The Trustee or the Trust Administrator may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking
to take action not permitted by this Agreement.
At all times as may be required by the Code, the Trust Administrator
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of the
REMICs as "qualified mortgages" as defined in Section 860G(a)(3) of the Code
and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of a REMIC, as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of such REMIC, as defined in Section
860G(c) of the Code, on any contributions to a REMIC after the Startup Day
therefor pursuant to Section 860G(d) of the Code, or any other tax is imposed
by the Code or any applicable provisions of state or local tax laws, such tax
shall be charged (i) to a Servicer, if such tax arises out of or results from
a breach by such Servicer of any of its obligations under this Agreement or if
such Servicer has in its sole discretion determined to indemnify the Trust
Fund against such tax, (ii) to the Trust Administrator, if such tax arises out
of or results from a breach by the Trust Administrator of any of its
obligations under this Article II, (iii) to the Trustee, if such tax arises
out of or results from a breach by the Trustee of any of its obligations under
this Article II, or (iv) otherwise against amounts on deposit in the
Collection Account as provided by Section 3.08 and on the Distribution Date(s)
following such reimbursement the aggregate of such taxes shall be allocated in
reduction of the Interest Distribution Amount on each Class entitled thereto
in the same manner as if such taxes constituted a Prepayment Interest
Shortfall.
(h) The Trust 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, no Servicer nor the Trustee nor Trust
Administrator shall accept any contributions of assets to any REMIC created
hereunder unless (subject to Section 2.05) such Servicer, the Trustee or the
Trust Administrator shall have received an Opinion of Counsel (at the expense
of the party seeking to make such contribution) to the effect that the
inclusion of such assets in a REMIC will not cause that REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding, or
subject that REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) No Servicer nor the Trustee nor Trust Administrator shall
(subject to Section 2.05) enter into any arrangement by which a REMIC will
receive a fee or other compensation for services nor permit such REMIC to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in
Section 860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the Trust Administrator
shall prepare and file with the Internal Revenue Service Form 8811,
"Information Return for Real Estate Mortgage Investment Conduits (REMIC) and
Issuers of Collateralized Debt Obligations" for each REMIC.
(l) Neither the Trustee, Trust Administrator nor any Servicer shall
sell, dispose of or substitute for any of the Mortgage Loans (except in
connection with (i) the default, imminent default or foreclosure of a Mortgage
Loan, including but not limited to, the acquisition or sale of a Mortgaged
Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy of any
REMIC created hereunder, (iii) the termination of any REMIC created hereunder
pursuant to Article X of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) nor acquire any assets for a
REMIC, nor sell or dispose of any investments in the Collection Account or the
Certificate Account for gain nor accept any contributions to a REMIC after the
Closing Date (a) unless it has received an Opinion of Counsel that such sale,
disposition, substitution or acquisition will not affect adversely the status
of any REMIC created hereunder as a REMIC or (b) unless such Servicer has
determined in its sole discretion to indemnify the Trust Fund against such
tax.
(m) In order to enable the Trustee and the Trust Administrator to
perform their duties as set forth herein, the Depositor shall provide, or
cause to be provided to the Trustee and the Trust Administrator, within ten
days after the Closing Date, all information or data that the Trustee and the
Trust Administrator determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans and the Trustee and the Trust
Administrator shall be entitled to rely upon any and all such information and
data in the performance of its duties set forth herein. Thereafter, each
Servicer shall provide, promptly upon request therefor, any such additional
information or data that the Trustee or the Trust Administrator may from time
to time reasonably request in order to enable the Trustee and the Trust
Administrator to perform their duties as set forth herein and the Trustee and
the Trust Administrator shall be entitled to rely upon any and all such
information and data in the performance of its duties set forth herein. DLJMC
shall indemnify the Trustee and the Trust Administrator and hold its harmless
for any loss, liability, damage, claim or expense of the Trustee and the Trust
Administrator arising from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee and the
Trust Administrator on a timely basis. Each Servicer shall indemnify the
Trustee and the Trust Administrator and hold it harmless for any loss,
liability, damage, claim or expense of the Trustee and the Trust Administrator
arising from any failure of such Servicer to provide, or to cause to be
provided, accurate information or data required to be provided by such
Servicer to the Trustee and the Trust Administrator on a timely basis. The
indemnification provisions hereunder shall survive the termination of this
Agreement and shall extend to any co-trustee and co-trust administrator
appointed pursuant to this Agreement.
SECTION 2.08 Covenants of each Servicer.
Each Servicer hereby covenants to the Depositor, the Trustee and the
Trust Administrator as follows:
(a) Such Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of the insurer
under each Mortgage Guaranty Insurance Policy; and
(b) No written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor, the Trustee or the Trust Administrator and
prepared by such Servicer pursuant to this Agreement will contain any untrue
statement of a material fact.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 Servicers to Service Mortgage Loans.
For and on behalf of the Certificateholders, each Servicer shall
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and with Accepted Servicing Practices. The obligations of each of
WMMSC and CMMC hereunder to service and administer the Mortgage Loans shall be
limited to the WMMSC Serviced Mortgage Loans and the CMMC Serviced Mortgage
Loans, respectively; and with respect to the duties and obligations of each
Servicer, references herein to related "Mortgage Loans" shall be limited to
the WMMSC Serviced Mortgage Loans (and the related proceeds thereof and
related REO Properties), in the case of WMMSC and the CMMC Serviced Mortgage
Loans (and the related proceeds thereof and related REO Properties) in the
case of CMMC; and in no event shall any Servicer have any responsibility or
liability with respect to any of the other Mortgage Loans. In connection with
such servicing and administration, each Servicer shall have full power and
authority, acting alone and/or through Subservicers as provided in Section
3.02 hereof, to do or cause to be done any and all things that it may deem
necessary or desirable in connection with such servicing and administration,
including but not limited to, the power and authority, subject to the terms
hereof (i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds, and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan; provided that
a Servicer shall not take any action that is inconsistent with or prejudices
the interests of the Trust Fund or the Certificateholders in any Mortgage Loan
or the rights and interests of the Depositor, the Trustee, the Trust
Administrator or the Certificateholders under this Agreement. Each Servicer
shall represent and protect the interests of the Trust Fund in the same manner
as it protects its own interests in mortgage loans in its own portfolio in any
claim, proceeding or litigation regarding a Mortgage Loan, and shall not make
or permit any modification, waiver or amendment of any Mortgage Loan which
would cause any REMIC created hereunder to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code. Without limiting the generality of the foregoing, each Servicer,
in its own name or in the name of the Depositor and the Trustee, is hereby
authorized and empowered by the Depositor and the Trustee and the Trust
Administrator, when such Servicer believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Trust
Administrator, the Depositor, the Certificateholders or any of them, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. Each Servicer shall prepare and deliver to
the Depositor and/or the Trustee and/or the Trust Administrator such documents
requiring execution and delivery by either or both of them as are necessary or
appropriate to enable such Servicer to service and administer the Mortgage
Loans to the extent that such Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of such
documents, the Depositor and/or the Trustee or the Trust Administrator shall
execute such documents and deliver them to such Servicer.
In accordance with the standards of the preceding paragraph and
unless determined in good faith to be a Nonrecoverable Advance, each Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. The costs incurred by a Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
Each Servicer hereby acknowledges that, to the extent such Servicer
has previously serviced some or all of the Mortgage Loans pursuant to another
servicing agreement, the provisions contained in this Agreement shall
supersede the provisions contained in such other servicing agreement from and
after the Closing Date.
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer on behalf
of the related Servicer in accordance with the servicing provisions of this
Agreement, provided that the Subservicer is a FNMA-approved lender or a FHLMC
seller/servicer in good standing. A Servicer may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by such Servicer of the
Subservicer shall not release such Servicer from any of its obligations
hereunder and such Servicer shall remain responsible hereunder for all acts
and omissions of the Subservicer as fully as if such acts and omissions were
those of such Servicer. Each Servicer shall pay all fees and expenses of any
Subservicer engaged by such Servicer from its own funds.
Notwithstanding the foregoing, each Servicer shall be entitled to
outsource one or more separate servicing functions to a Person (each, an
"Outsourcer") that does not meet the eligibility requirements for a
Subservicer, so long as such outsourcing does not constitute the delegation of
such Servicer's obligation to perform all or substantially all of the
servicing of the related Mortgage Loans to such Outsourcer. In such event, the
use by a Servicer of any such Outsourcer shall not release the related
Servicer from any of its obligations hereunder and such Servicer shall remain
responsible hereunder for all acts and omissions of such Outsourcer as fully
as if such acts and omissions were those of such Servicer, and such Servicer
shall pay all fees and expenses of the Outsourcer from such Servicer's own
funds.
(b) At the cost and expense of a Servicer, without any right of
reimbursement from the Depositor, Trustee, the Trust Administrator or the
applicable Collection Account, such Servicer shall be entitled to terminate
the rights and responsibilities of its Subservicer and arrange for any
servicing responsibilities to be performed by a successor Subservicer meeting
the requirements set forth in Section 3.02(a), provided, however, that nothing
contained herein shall be deemed to prevent or prohibit such Servicer, at such
Servicer's option, from electing to service the related Mortgage Loans itself.
(c) Notwithstanding any of the provisions of this Agreement relating
to agreements or arrangements between a Servicer and its Subservicer, a
Servicer and its Outsourcer, or any reference herein to actions taken through
the Subservicer, the Outsourcer, or otherwise, no Servicer shall be relieved
of its obligations to the Depositor, Trustee, the Trust Administrator or
Certificateholders and shall be obligated to the same extent and under the
same terms and conditions as if it alone were servicing and administering the
related Mortgage Loans. Each Servicer shall be entitled to enter into an
agreement with its Subservicer and Outsourcer for indemnification of such
Servicer or Outsourcer, as applicable, by such Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
For purposes of this Agreement, a Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the related
Mortgage Loans that are received by a related Subservicer regardless of
whether such payments are remitted by the Subservicer to such Servicer.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving a Subservicer shall be deemed to be
between the Subservicer, and the related Servicer alone, and the Depositor,
the Trustee, the Trust Administrator and the other Servicers shall have no
obligations, duties or liabilities with respect to a Subservicer including no
obligation, duty or liability of the Depositor, Trustee, the Trust
Administrator or other Servicers to pay a Subservicer's fees and expenses.
SECTION 3.03 Reserved.
SECTION 3.04 Trust Administrator to Act as Servicer.
In the event that any Servicer shall for any reason no longer be a
Servicer hereunder (including by reason of an Event of Default), the Trust
Administrator or its successor shall thereupon assume all of the rights and
obligations of such Servicer hereunder arising thereafter (except that the
Trust Administrator shall not be (i) liable for losses of such Servicer
pursuant to Section 3.09 hereof or any acts or omissions of the related
predecessor Servicer hereunder, (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder including, but not
limited to, repurchases or substitutions of Mortgage Loans pursuant to Section
2.02 or 2.03 hereof or (iv) deemed to have made any representations and
warranties of such Servicer hereunder). Any such assumption shall be subject
to Section 8.02 hereof.
Each Servicer shall, upon request of the Trust Administrator, but at
the expense of such Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement or substitute Subservicing
Agreement and the Mortgage Loans then being serviced thereunder and hereunder
by such Servicer and an accounting of amounts collected or held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Subservicing Agreement or substitute Subservicing Agreement to the
assuming party.
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account.
(a) Continuously from the date hereof until the principal and
interest on all Mortgage Loans have been paid in full or such Mortgage Loans
have become Liquidated Mortgage Loans, each Servicer shall proceed in
accordance with the customary and usual standards of practice of prudent
mortgage loan servicers to collect all payments due under each of the related
Mortgage Loans when the same shall become due and payable to the extent
consistent with this Agreement and the terms and provisions of any related
Mortgage Guaranty Insurance Policy and shall take special care with respect to
Mortgage Loans for which a Servicer collects escrow payments in ascertaining
and estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loans and the Mortgaged Properties, to
the end that the installments payable by the Mortgagors will be sufficient to
pay such charges as and when they become due and payable. Consistent with the
foregoing, each Servicer may in its discretion (i) waive any late payment
charge or any prepayment charge or penalty interest in connection with the
prepayment of a Mortgage Loan and (ii) extend the due dates for payments due
on a Mortgage Note for a period not greater than 180 days; provided, however,
that such Servicer cannot extend the maturity of any such Mortgage Loan past
the date on which the final payment is due on the latest maturing Mortgage
Loan as of the Cut-off Date. In the event of any such arrangement, the related
Servicer shall make Advances on the related Mortgage Loan in accordance with
the provisions of Section 5.01 during the scheduled period in accordance with
the amortization schedule of such Mortgage Loan without modification thereof
by reason of such arrangements. No Servicer shall be required to institute or
join in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law.
(b) Each Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
Collection Accounts, in the form of time deposit or demand accounts, titled
"[Servicer's name], in trust for the Holders of Credit Suisse First Boston
Mortgage Securities Corp., Mortgage-Backed Pass-Through Certificates, Series
2001-11" or, if established and maintained by a Subservicer on behalf of a
Servicer, "[Subservicer's name], in trust for [Servicer's name]" or
"[Subservicer's name], as agent, trustee and/or bailee of principal and
interest custodial account for [Servicer's name], its successors and assigns,
for various owners of interest in [Servicer's name] mortgage-backed pools. In
the event that a Subservicer employs a subservicer, the Collection Account
shall be titled "[name of Subservicer's subservicer], in trust for
[Subservicer's name]." Each Collection Account shall be an Eligible Account.
Notwithstanding the foregoing, one of the Collection Accounts established by
WMMSC shall be an Investment Account. Funds deposited in a Collection Account
may be drawn on by the applicable Servicer in accordance with Section 3.08.
(c) Each Servicer shall deposit in the applicable Collection Account
on a daily basis, unless otherwise indicated, and retain therein, the
following collections remitted by Subservicers or payments received by such
Servicer and payments made by such Servicer subsequent to the Cut-off Date,
other than payments of principal and interest due on or before the Cut-off
Date:
(i) all payments on account of principal on the
related Mortgage Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the
related Mortgage Loans adjusted to the per annum rate equal to the
Mortgage Rate reduced by the related Servicing Fee Rate;
(iii) all Liquidation Proceeds on the related
Mortgage Loans;
(iv) all Insurance Proceeds on the related Mortgage
Loans including amounts required to be deposited pursuant to Section
3.09 (other than proceeds to be held in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property or
released to the Mortgagor in accordance with Section 3.09);
(v) all Advances made by such Servicer pursuant to
Section 5.01;
(vi) no later than the withdrawal from the Collection
Account pursuant to Section 3.08(a)(viii) each month, the applicable
amount of Compensating Interest for such Servicer for the related
Prepayment Period. The aggregate of such deposits shall be made from
such Servicer's own funds, without reimbursement therefor.
(vii) any amounts required to be deposited by such
Servicer in respect of net monthly income from REO Property pursuant
to Section 3.11; and
(viii) any other amounts required to be deposited
hereunder.
The foregoing requirements for deposit into each Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, Ancillary Income need not be deposited by such
Servicer into such Collection Account. In addition, notwithstanding the
provisions of this Section 3.05, each Servicer may deduct from amounts
received by it, prior to deposit to the applicable Collection Account, any
portion of any Scheduled Payment representing the applicable Servicing Fee. In
the event that a Servicer shall remit any amount not required to be remitted,
it may at any time withdraw or direct the institution maintaining the related
Collection Account to withdraw such amount from such Collection Account, any
provision herein to the contrary notwithstanding. Such withdrawal or direction
may be accomplished by delivering written notice thereof to the Trustee or
such other institution maintaining such Collection Account which describes the
amounts deposited in error in such Collection Account. Each Servicer shall
maintain adequate records with respect to all withdrawals made by it pursuant
to this Section. All funds deposited in a Collection Account shall be held in
trust for the Certificateholders until withdrawn in accordance with Section
3.08(a).
(d) On or prior to the Closing Date, the Trust Administrator shall
establish and maintain, on behalf of the Certificateholders, the Certificate
Account. The Trust Administrator shall, promptly upon receipt, deposit in the
Certificate Account and retain therein the following:
(i) the aggregate amount remitted by a Servicers to the
Trust Administrator pursuant to Section 3.08(a)(viii);
(ii) any amount deposited by the Trust Administrator
pursuant to Section 3.05(e) in connection with any losses on
Eligible Investments; and
(iii)any other amounts deposited hereunder which are
required to be deposited in the Certificate Account.
In the event that a Servicer shall remit to the Trust Administrator
any amount not required to be remitted, it may at any time direct the Trust
Administrator to withdraw such amount from the Certificate Account, any
provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering an Officer's Certificate to the Trust Administrator
which describes the amounts deposited in error in the Certificate Account. All
funds deposited in the Certificate Account shall be held by the Trust
Administrator in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section
3.08(b). In no event shall the Trust Administrator incur liability for
withdrawals from the Certificate Account at the direction of a Servicer.
(e) Each institution at which a Collection Account or the
Certificate Account is maintained shall either hold such funds on deposit
uninvested or shall invest the funds therein as directed in writing by the
related Servicer or the Trust Administrator, respectively, in Eligible
Investments, which shall mature not later than (i) in the case of a Collection
Account, the Business Day immediately preceding the 7th day, with respect to
CMMC, or 3rd day, with respect to WMMSC, preceding the related Distribution
Date and (ii) in the case of the Certificate Account, the Business Day
immediately preceding the Distribution Date, or on the Distribution Date, with
respect to Eligible Investments invested with an affiliate of the Trust
Administrator, and, in each case, shall not be sold or disposed of prior to
its maturity. All income and gain net of any losses realized from any such
balances or investment of funds on deposit in a Collection Account shall be
for the benefit of the related Servicer as servicing compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses
in a Collection Account incurred in any such account in respect of any such
investments shall promptly be deposited by the related Servicer in the related
Collection Account. Neither the Trustee nor the Trust Administrator shall be
liable for the amount of any loss incurred in respect of any investment or
lack of investment of funds held in a Collection Account and made in
accordance with this Section 3.05. All income and gain net of any losses
realized from any such investment of funds on deposit in the Certificate
Account shall be for the benefit of the Trust Administrator as compensation
and shall be remitted to it monthly as provided herein. The amount of any
realized losses in the Certificate Account incurred in any such account in
respect of any such investments shall promptly be deposited by the Trust
Administrator in the Certificate Account.
(f) Each Servicer shall give notice to the Trustee, the Trust
Administrator, each related Seller, each Rating Agency, and the Depositor of
any proposed change of the location of the related Collection Account prior to
any change thereof. The Trust Administrator shall give notice to each
Servicer, each Seller, each Rating Agency, the Trustee and the Depositor of
any proposed change of the location of the Certificate Account prior to any
change thereof.
SECTION 3.06 Establishment of and Deposits to Escrow Accounts;
Permitted Withdrawals from Escrow Accounts; Payments of
Taxes, Insurance and Other Charges.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the applicable Servicer shall segregate and hold all
funds collected and received pursuant to a Mortgage Loan constituting Escrow
Payments separate and apart from any of its own funds and general assets and
shall establish and maintain one or more Escrow Accounts, in the form of time
deposit or demand accounts, titled, "Credit Suisse First Boston Mortgage
Securities Corp., Mortgage-Backed Pass-Through Certificates, Series 2001-11",
or, if established and maintained by a Subservicer on behalf of a Servicer,
"[Subservicer's name], in trust for [Servicer's name]" or "[Subservicer's
name], as agent, trustee and/or bailee of taxes and insurance custodial
account for [Servicer's name], its successors and assigns, for various owners
of interest in [Servicer's name] mortgage-backed pools. In the event that a
Subservicer employs a subservicer, the Escrow Accounts shall be titled "[name
of Subservicer's subservicer] in trust for [Subservicer's name]. The Escrow
Accounts shall be Eligible Accounts. Funds deposited in the Escrow Account may
be drawn on by the related Servicer in accordance with Section 3.06(d). Except
with respect to WMMSC, the creation of any Escrow Account shall be evidenced
by a certification in the form of Exhibit P-1 hereto, in the case of an
account established with a Servicer, or by a letter agreement in the form of
Exhibit P-2 hereto, in the case of an account held by a depository other than
a Servicer. A copy of such certification shall be furnished to the Depositor,
the Trust Administrator and Trustee.
(b) Each Servicer shall deposit or cause to be deposited in its
Escrow Account or Accounts on a daily basis within one Business Day of receipt
and retain therein:
(i) all Escrow Payments collected on account of the
related Mortgage Loans, for the purpose of effecting timely payment
of any such items as required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds
which are to be applied to the restoration or repair of any
Mortgaged Property.
(c) Each Servicer shall make withdrawals from the Escrow Account
only to effect such payments as are required under this Agreement, as set
forth in Section 3.06(d). Each Servicer shall be entitled to retain any
interest paid on funds deposited in the related Escrow Account by the
depository institution, other than interest on escrowed funds required by law
to be paid to the Mortgagor. To the extent required by law, the applicable
Servicer shall pay interest on escrowed funds to the Mortgagor notwithstanding
that the Escrow Account may be non-interest bearing or that interest paid
thereon is insufficient for such purposes.
(d) Withdrawals from the Escrow Account or Accounts may be made or
caused to be made by the related Servicer only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums, condominium
charges, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage;
(ii) to reimburse such Servicer for any Servicing
Advances made by such Servicer with respect to a related Mortgage
Loan, but only from amounts received on the related Mortgage Loan
which represent late collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to
be in excess of the amounts required under the terms of the related
Mortgage Loan;
(iv) for transfer to the related Collection Account
to reduce the principal balance of the related Mortgage Loan in
accordance with the terms of the related Mortgage and Mortgage Note;
(v) for application to restore or repair of the
related Mortgaged Property in accordance with the procedures
outlined in Section 3.09(e);
(vi) to pay to such Servicer, or any Mortgagor to the
extent required by law, any interest paid on the funds deposited in
such Escrow Account; and
(vii) to clear and terminate such Escrow Account on
the termination of this Agreement.
(e) With respect to each Mortgage Loan, the applicable Servicer
shall maintain accurate records reflecting the status of ground rents and
taxes and any other item which may become a lien senior to the lien of the
related Mortgage and the status of Mortgage Guaranty Insurance Policy
premiums, and fire and hazard insurance coverage and shall obtain, from time
to time, all bills for the payment of such charges (including renewal
premiums) and shall effect or cause to be effected payment thereof prior to
the applicable penalty or termination date.
SECTION 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans; Inspections.
(a) Each Servicer shall afford the Depositor, the Trustee and the
Trust Administrator reasonable access to all records and documentation
regarding the Mortgage Loans and all accounts, insurance information and other
matters relating to this Agreement, such access being afforded without charge,
but only upon reasonable written request and during normal business hours at
the office designated by such Servicer.
(b) Each Servicer shall inspect the related Mortgaged Properties as
often as deemed necessary by such Servicer in such Servicer's sole discretion,
to assure itself that the value of such Mortgaged Property is being preserved.
In addition, if any Mortgage Loan is more than 60 days delinquent, the
applicable Servicer shall conduct subsequent inspections in accordance with
Accepted Servicing Practices or as may be required by the primary mortgage
guaranty insurer. Each Servicer shall keep a written or electronic report of
each such inspection.
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and
Certificate Account.
(a) Each Servicer may from time to time make withdrawals from the
related Collection Account for the following purposes:
(i) to pay to such Servicer (to the extent not
previously retained by such Servicer) the servicing compensation to
which it is entitled pursuant to Section 3.14, and to pay to such
Servicer, as additional servicing compensation, earnings on or
investment income with respect to funds in or credited to such
Collection Account;
(ii) to reimburse such Servicer for unreimbursed
Advances made by it, such right of reimbursement pursuant to this
subclause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made (including
without limitation, late recoveries of payments, Liquidation
Proceeds and Insurance Proceeds to the extent received by such
Servicer);
(iii) to reimburse such Servicer for any
Nonrecoverable Advance previously made or any amount expended
pursuant to Section 3.11(a);
(iv) to reimburse such Servicer for (A) unreimbursed
Servicing Advances, such Servicer's right to reimbursement pursuant
to this clause (A) with respect to any Mortgage Loan being limited
to amounts received on such Mortgage Loan which represent late
payments of principal and/or interest (including, without
limitation, Liquidation Proceeds and Insurance Proceeds with respect
to such Mortgage Loan) respecting which any such advance was made
and (B) for unpaid Servicing Fees as provided in Section 3.11
hereof;
(v) to pay to the purchaser, with respect to each
Mortgage Loan or property acquired in respect thereof that has been
purchased pursuant to Section 2.02, 2.03 or 3.11, all amounts
received thereon after the date of such purchase;
(vi) to make any payments required to be made
pursuant to Section 2.07(g);
(vii) to withdraw any amount deposited in such
Collection Account and not required to be deposited therein;
(viii) with regard to CMMC Serviced Mortgage Loans,
other than WMMSC Subserviced Mortgage Loans, 7 days; with regard to
WMMSC Serviced Mortgage Loans and WMMSC Subserviced Mortgage Loans,
3 days immediately preceding each Distribution Date or if such 3rd
or 7th day, as applicable, is not a Business Day, the Business Day
immediately preceding such 3rd or 7th day, as the case may be, to
withdraw an amount equal to the portion of each available
Distribution Amount applicable to the Mortgage Loans serviced by
such Servicer for such Distribution Date and remit such amount to
the Trust Administrator for deposit in the Certificate Account; and
(ix) to clear and terminate such Collection Account
upon termination of this Agreement pursuant to Section 10.01 hereof.
Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Collection Account pursuant to such subclauses
(i), (ii), (iv) and (v). Prior to making any withdrawal from a Collection
Account pursuant to subclause (iii), the related Servicer shall deliver to the
Trust Administrator a certificate of a Servicing Officer indicating the amount
of any previous Advance determined by such Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The Trust Administrator shall withdraw funds from the
Certificate Account for distributions to Certificateholders, and MGIC, in the
manner specified in this Agreement (and to withhold from the amounts so
withdrawn, the amount of any taxes that it is authorized to withhold pursuant
to Section 2.07). In addition, the Trust Administrator may from time to time
make withdrawals from the Certificate Account for the following purposes:
(i) to pay to itself any investment income earned for the
related Distribution Date;
(ii) to withdraw and return to the applicable Servicer for
deposit to the applicable Collection Account any amount deposited in
the Certificate Account and not required to be deposited therein;
and
(iii) to clear and terminate the Certificate Account upon
termination of the Agreement pursuant to Section 10.01 hereof.
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment
Insurance and Mortgage Guaranty Insurance Policy;
Claims; Restoration of Mortgaged Property.
(a) Each Servicer shall cause to be maintained for each Mortgage
Loan hazard insurance such that all buildings upon the Mortgaged Property are
insured by a generally acceptable insurer rated either: "V" or better in the
current Best's Key Rating Guide ("Best's") or acceptable to FNMA or FHLMC
against loss by fire, hazards of extended coverage and such other hazards as
are customary in the area where the Mortgaged Property is located, in an
amount which is at least equal to the lesser of (i) the replacement value of
the improvements securing such Mortgage Loan and (ii) the greater of (A) the
outstanding principal balance of the Mortgage Loan and (B) an amount such that
the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the
Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), the related Servicer shall cause a
flood insurance policy to be maintained with respect to such Mortgage Loan.
Such policy shall meet the requirements of the current guidelines of the
Federal Insurance Administration and be in an amount representing coverage
equal to the lesser of (i) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement cost basis (or
the unpaid principal balance of the mortgage if replacement cost coverage is
not available for the type of building insured) and (ii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973,
as amended.
If a Mortgage is secured by a unit in a condominium project, the
related Servicer shall verify that the coverage required of the owner's
association, including hazard, flood, liability, and fidelity coverage, is
being maintained in accordance with the requirements of the Servicer for
mortgage loans that it services on its own account.
Each Servicer shall cause to be maintained on each Mortgaged
Property such other additional special hazard insurance as may be required
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance, or pursuant to the
requirements of any Mortgage Guaranty Insurance Policy insurer, or as may be
required to conform with Accepted Servicing Practices to the extent permitted
by the Mortgage Note, the Mortgage or applicable law provided that the
Servicer shall not be required to bear the cost of such insurance.
All policies required hereunder shall name the related Servicer as
loss payee and shall be endorsed with standard or union mortgagee clauses,
without contribution, which shall provide for prior written notice of any
cancellation, reduction in amount or material change in coverage.
A Servicer shall not interfere with the Mortgagor's freedom of
choice at the origination of such Mortgage Loan in selecting either his
insurance carrier or agent, provided, however, that such Servicer shall not
accept any such insurance policies from insurance companies unless such
companies are rated: B:III or better in Best's or acceptable to FNMA or FHLMC
and are licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The related Servicer shall determine that such policies
provide sufficient risk coverage and amounts, that they insure the property
owner, and that they properly describe the property address.
Pursuant to Section 3.05, any amounts collected by a Servicer under
any such policies (other than amounts to be deposited in the related Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with such Servicer's normal servicing
procedures) shall be deposited in the related Collection Account (subject to
withdrawal pursuant to Section 3.08(a)).
Any cost incurred by a Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trust Administrator for their
benefit, be added to the principal balance of the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs
shall constitute a Servicing Advance and will be reimbursable to the Servicer
to the extent permitted by Section 3.08 hereof. It is understood and agreed
that no earthquake or other additional insurance is to be required of any
Mortgagor or maintained on property acquired in respect of a Mortgage other
than pursuant to such applicable laws and regulations as shall at any time be
in force and as shall require such additional insurance.
(b) In the event that a Servicer shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the related Mortgage Loans, then, to the extent
such policy provides coverage in an amount equal to the amount required
pursuant to Section 3.09(a) and otherwise complies with all other requirements
of Section 3.09(a), it shall conclusively be deemed to have satisfied its
obligations as set forth in Section 3.09(a). Any amounts collected by a
Servicer under any such policy relating to a Mortgage Loan shall be deposited
in the related Collection Account subject to withdrawal pursuant to Section
3.08(a). Such policy may contain a deductible clause, in which case, in the
event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 3.09(a), and there shall have been a
loss which would have been covered by such policy, the related Servicer shall
deposit in the related Collection Account at the time of such loss the amount
not otherwise payable under the blanket policy because of such deductible
clause, such amount to be deposited from such Servicer's funds, without
reimbursement therefor. Upon request of the Trust Administrator, a Servicer
shall cause to be delivered to the Trust Administrator a certified true copy
of such policy and a statement from the insurer thereunder that such policy
shall in no event be terminated or materially modified without 30 days' prior
written notice to the Trust Administrator. In connection with its activities
as Servicer of the related Mortgage Loans, such Servicer agrees to present, on
behalf of itself, the Depositor, and the Trust Administrator for the benefit
of the Certificateholders, claims under any such blanket policy.
(c) With respect to each Mortgage Loan with a Loan-to-Value Ratio in
excess of 80% which the applicable Seller represented to be covered by a
Mortgage Guaranty Insurance Policy as of the Cut-off Date, the related
Servicer shall, without any cost to the Depositor or Trust Administrator,
maintain or cause the Mortgagor to maintain in full force and effect a
Mortgage Guaranty Insurance Policy insuring that portion of the Mortgage Loan
in excess of 75% of value, and shall pay or shall cause the Mortgagor to pay,
the premium thereon on a timely basis, until the loan-to-value ratio of such
Mortgage Loan is reduced to 80%, based on either (i) a current appraisal of
the Mortgaged Property or (ii) the appraisal of the Mortgaged Property
obtained at the time the Mortgage Loan was originated. In the event that such
Mortgage Guaranty Insurance Policy shall be terminated, the related Servicer
shall obtain from another Qualified Insurer a comparable replacement policy,
with a total coverage equal to the remaining coverage of such terminated
Mortgage Guaranty Insurance Policy. If the insurer shall cease to be a
Qualified Insurer, the related Servicer shall determine whether recoveries
under the Mortgage Guaranty Insurance Policy are jeopardized for reasons
related to the financial condition of such insurer, it being understood that
such Servicer shall in no event have any responsibility or liability for any
failure to recover under the Mortgage Guaranty Insurance Policy for such
reason. If the related Servicer determines that recoveries are so jeopardized,
it shall notify the Mortgagor, if required, and obtain from another Qualified
Insurer a replacement insurance policy. The related Servicer shall not take
any action which would result in noncoverage under any applicable Mortgage
Guaranty Insurance Policy of any loss which, but for the actions of such
Servicer would have been covered thereunder. In connection with any assumption
or substitution agreement entered into or to be entered into pursuant to
Section 3.10, each Servicer shall promptly notify the insurer under the
related Mortgage Guaranty Insurance Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such Mortgage
Guaranty Insurance Policy and shall take all actions which may be required by
such insurer as a condition to the continuation of coverage under such
Mortgage Guaranty Insurance Policy provided that such required actions are in
compliance with all applicable law. If such Mortgage Guaranty Insurance Policy
is terminated as a result of such assumption or substitution of liability, the
related Servicer shall obtain a replacement Mortgage Guaranty Insurance Policy
as provided above; provided that under applicable law and the terms of the
related Mortgage Note and Mortgage the cost of such policy may be charged to
the successor Mortgagor.
With respect to the MGIC PMI Mortgage Loans, the MGIC Policy shall
be maintained by the Trust Administrator for the life of such Mortgage Loans,
unless otherwise prohibited by law. The applicable Servicer shall submit all
claims required to be made under the MGIC Policy in a timely fashion and shall
otherwise comply with the terms of the MGIC Policy. Each Servicer shall
deposit all amounts received under the MGIC Policy into the Collection
Account. The MGIC PMI Fee shall be paid by the Trust Administrator from
amounts withdrawn from the Certificate Account in accordance with Section
4.01.
With respect to Mortgage Loans which are not MGIC PMI Mortgage
Loans, the applicable Servicer agrees to effect timely payment of the premiums
on each Mortgage Guaranty Insurance Policy, and such payments shall constitute
Servicing Advances reimbursable to such Servicer pursuant to Section 3.08.
(d) In connection with its activities as servicer, each Servicer
agrees to prepare and present, on behalf of itself, the Depositor, the
Trustee, the Trust Administrator and the Certificateholders, claims to the
insurer under any Mortgage Guaranty Insurance Policy in a timely fashion in
accordance with the terms of such Mortgage Guaranty Insurance Policy and, in
this regard, to take such reasonable action as shall be necessary to permit
recovery under any Mortgage Guaranty Insurance Policy respecting defaulted
Mortgage Loans. Pursuant to Section 3.05, any amounts collected by a Servicer
under any Mortgage Guaranty Insurance Policy shall be deposited in the related
Collection Account, subject to withdrawal pursuant to Section 3.08.
(e) A Servicer need not obtain the approval of the Trustee or the
Trust Administrator prior to releasing any Insurance Proceeds to the Mortgagor
to be applied to the restoration or repair of the Mortgaged Property if such
release is in accordance with Accepted Servicing Practices. At a minimum, each
Servicer shall comply with the following conditions in connection with any
such release of Insurance Proceeds:
(i) such Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required
approvals with respect thereto;
(ii) such Servicer shall take all steps necessary to
preserve the priority of the lien of the Mortgage, including, but
not limited to requiring waivers with respect to mechanics' and
materialmen's liens; and
(iii) pending repairs or restoration, such Servicer shall
place the Insurance Proceeds in the related Escrow Account.
(f) If the Trust Administrator is named as an additional loss payee,
the related Servicer is hereby empowered to endorse any loss draft issued in
respect of such a claim in the name of the Trust Administrator.
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) Each Servicer shall use its best efforts to enforce any
"due-on-sale" provision contained in any related Mortgage or Mortgage Note and
to deny assumption by the person to whom the Mortgaged Property has been or is
about to be sold whether by absolute conveyance or by contract of sale, and
whether or not the Mortgagor remains liable on the Mortgage and the Mortgage
Note. When the Mortgaged Property has been conveyed by the Mortgagor, the
related Servicer shall, to the extent it has knowledge of such conveyance,
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that such Servicer
shall not exercise such rights if prohibited by law from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related Mortgage Guaranty Insurance Policy, if any.
(b) If a Servicer reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, such Servicer shall enter into (i)
an assumption and modification agreement with the person to whom such property
has been conveyed, pursuant to which such person becomes liable under the
Mortgage Note and the original Mortgagor remains liable thereon or (ii) in the
event such Servicer is unable under applicable law to require that the
original Mortgagor remain liable under the Mortgage Note, a substitution of
liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of
the Mortgaged Property is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, a Servicer shall not be
deemed to be in default under this Section by reason of any transfer or
assumption which such Servicer reasonably believes it is restricted by law
from preventing, for any reason whatsoever. In connection with any such
assumption, no material term of the Mortgage Note, including without
limitation, the Mortgage Rate borne by the related Mortgage Note, the term of
the Mortgage Loan or the outstanding principal amount of the Mortgage Loan
shall be changed.
(c) To the extent that any Mortgage Loan is assumable, the related
Servicer shall inquire diligently into the creditworthiness of the proposed
transferee, and shall use the underwriting criteria for approving the credit
of the proposed transferee which are used by FNMA with respect to underwriting
mortgage loans of the same type as the Mortgage Loans. If the credit of the
proposed transferee does not meet such underwriting criteria, the related
Servicer diligently shall, to the extent permitted by the Mortgage or the
Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
(d) Subject to each Servicer's duty to enforce any due-on-sale
clause to the extent set forth in this Section 3.10, in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and such
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, such Servicer
shall prepare and deliver or cause to be prepared and delivered to the Trustee
for signature and shall direct, in writing, the Trustee to execute the
assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such Person. In connection with any such assumption, no material
term of the Mortgage Note may be changed. Together with each such
substitution, assumption or other agreement or instrument delivered to the
Trustee for execution by it, the related Servicer shall deliver an Officer's
Certificate signed by a Servicing Officer stating that the requirements of
this subsection have been met in connection therewith. The related Servicer
shall notify the Trustee that any such substitution or assumption agreement
has been completed by forwarding to the Trustee the original of such
substitution or assumption agreement, which in the case of the original shall
be added to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. Any fee collected by a
Servicer for entering into an assumption or substitution of liability
agreement will be retained by such Servicer as additional servicing
compensation.
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.
(a) Each Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
related Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
In connection with such foreclosure or other conversion, each Servicer shall
take such action as (i) such Servicer would take under similar circumstances
with respect to a similar mortgage loan held for its own account for
investment, (ii) shall be consistent with Accepted Servicing Practices, (iii)
such Servicer shall determine consistently with Accepted Servicing Practices
to be in the best interest of the Trustee and Certificateholders, and (iv) is
consistent with the requirements of the insurer under any Required Insurance
Policy; provided, however, that such Servicer shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration of
any property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the related Mortgage
Loan after reimbursement to itself of such expenses and (ii) that such
expenses will be recoverable to it through Liquidation Proceeds (respecting
which it shall have priority for purposes of withdrawals from the related
Collection Account). The related Servicer shall be responsible for all other
costs and expenses incurred by it in any such proceedings; provided, however,
that it shall be entitled to reimbursement thereof from the Liquidation
Proceeds with respect to the related Mortgaged Property, as provided in the
definition of Liquidation Proceeds and as provided in Section 3.08(a)(iv)(A).
Notwithstanding anything to the contrary contained in this
Agreement, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the related Servicer has reasonable cause to believe
that a Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, or if the Trust Administrator otherwise requests, an environmental
inspection or review of such Mortgaged Property conducted by a qualified
inspector shall be arranged for by such Servicer. Upon completion of the
inspection, the related Servicer shall promptly provide the Trust
Administrator with a written report of environmental inspection.
In the event the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
the related Servicer shall not proceed with foreclosure or acceptance of a
deed in lieu of foreclosure if the estimated costs of the environmental clean
up, as estimated in the environmental inspection report, together with the
Servicing Advances and Advances made by such Servicer and the estimated costs
of foreclosure or acceptance of a deed in lieu of foreclosure exceeds the
estimated value of the Mortgaged Property. If however, the aggregate of such
clean up and foreclosure costs, Advances and Servicing Advances are less than
or equal to the estimated value of the Mortgaged Property, then the related
Servicer may, in its reasonable judgment and in accordance with Accepted
Servicing Practices, choose to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure and such Servicer shall be reimbursed for all
reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as
applicable, from the related Liquidation Proceeds, or if the Liquidation
Proceeds are insufficient to fully reimburse such Servicer, such Servicer
shall be entitled to be reimbursed from amounts in the related Collection
Account pursuant to Section 3.08(a) hereof. In the event the related Servicer
does not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure pursuant to the first sentence of this paragraph, such Servicer
shall be reimbursed for all Advances and Servicing Advances made with respect
to the related Mortgaged Property from the related Collection Account pursuant
to Section 3.08(a) hereof, and such Servicer shall have no further obligation
to service such Mortgage Loan under the provisions of this Agreement.
(b) With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trust Administrator for the benefit of
the Certificateholders, or its nominee, on behalf of the Certificateholders.
The Trust Administrator's name shall be placed on the title to such REO
Property solely as the Trust Administrator hereunder and not in its individual
capacity. The related Servicer shall ensure that the title to such REO
Property references this Agreement and the Trust Administrator's capacity
hereunder. Pursuant to its efforts to sell such REO Property, the related
Servicer shall in accordance with Accepted Servicing Practices manage,
conserve, protect and operate each REO Property for the purpose of its prompt
disposition and sale. The related Servicer, either itself or through an agent
selected by such Servicer, shall manage, conserve, protect and operate the REO
Property in the same manner that it manages, conserves, protects and operates
other foreclosed property for its own account, and in the same manner that
similar property in the same locality as the REO Property is managed. Upon
request, the related Servicer shall furnish to the Trust Administrator on or
before each Distribution Date a statement with respect to any REO Property
covering the operation of such REO Property for the previous calendar month
and such Servicer's efforts in connection with the sale of such REO Property
and any rental of such REO Property incidental to the sale thereof for the
previous calendar month. That statement shall be accompanied by such other
information as the Trust Administrator shall reasonably request and which is
necessary to enable the Trust Administrator to comply with the reporting
requirements of the REMIC Provisions. The net monthly rental income, if any,
from such REO Property shall be deposited in the related Collection Account no
later than the close of business on each Determination Date. The related
Servicer shall perform the tax reporting and withholding required by Sections
1445 and 6050J of the Code with respect to foreclosures and abandonments, the
tax reporting required by Section 6050H of the Code with respect to the
receipt of mortgage interest from individuals and any tax reporting required
by Section 6050P of the Code with respect to the cancellation of indebtedness
by certain financial entities, by preparing such tax and information returns
as may be required, in the form required, and delivering the same to the Trust
Administrator for filing.
To the extent consistent with Accepted Servicing Practices, the
related Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in an amount which is equal to the
outstanding principal balance of the related Mortgage Loan (as reduced by any
amount applied as a reduction of principal at the time of acquisition of the
REO Property), liability insurance and, to the extent required and available
under the Flood Disaster Protection Act of 1973, as amended, flood insurance
in the amount required above.
(c) In the event that the Trust Fund acquires any Mortgaged Property
as aforesaid or otherwise in connection with a default or imminent default on
a Mortgage Loan, the related Servicer shall dispose of such Mortgaged Property
prior to three years after the end of the calendar year of its acquisition by
the Trust Fund unless (i) the Trustee and the Trust Administrator shall have
been supplied with an Opinion of Counsel to the effect that the holding by the
Trust Fund of such Mortgaged Property subsequent to such three-year period
will not result in the imposition of taxes on "prohibited transactions" of any
REMIC hereunder as defined in section 860F of the Code or cause any REMIC
hereunder to fail to qualify as a REMIC at any time that any Certificates are
outstanding, in which case the Trust Fund may continue to hold such Mortgaged
Property (subject to any conditions contained in such Opinion of Counsel) or
(ii) the applicable Servicer shall have applied for, prior to the expiration
of such three-year period, an extension of such three-year period in the
manner contemplated by Section 856(e)(3) of the Code, in which case the
three-year period shall be extended by the applicable extension period.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be
rented) or otherwise used for the production of income by or on behalf of the
Trust Fund in such a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of section 860G(a)(8) of the Code or (ii) subject any REMIC hereunder
to the imposition of any federal, state or local income taxes on the income
earned from such Mortgaged Property under Section 860G(c) of the Code or
otherwise, unless the related Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of
a deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the related Servicer will cause compliance with the provisions
of Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto)
necessary to assure that no withholding tax obligation arises with respect to
the proceeds of such foreclosure except to the extent, if any, that proceeds
of such foreclosure are required to be remitted to the obligors on such
Mortgage Loan.
(d) The decision of a Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by such Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding. The income earned from the management of any REO Properties, net
of reimbursement to such Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
applicable accrued and unpaid Servicing Fees, and unreimbursed Advances and
Servicing Advances, shall be applied to the payment of principal of and
interest on the related defaulted Mortgage Loans (with interest accruing as
though such Mortgage Loans were still current) and all such income shall be
deemed, for all purposes in this Agreement, to be payments on account of
principal and interest on the related Mortgage Notes and shall be deposited
into the related Collection Account. To the extent the net income received
during any calendar month is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Rate on the
related Mortgage Loan for such calendar month, such excess shall be considered
to be a partial prepayment of principal of the related Mortgage Loan.
(e) The proceeds from any liquidation of a Mortgage Loan, as well as
any income from an REO Property, will be applied in the following order of
priority: first, to reimburse the related Servicer for any related
unreimbursed Servicing Advances and Servicing Fees; second, to reimburse such
Servicer for any unreimbursed Advances; third, to reimburse the related
Collection Account for any Nonrecoverable Advances (or portions thereof) that
were previously withdrawn by such Servicer pursuant to Section 3.08(a)(iii)
that related to such Mortgage Loan; fourth, to accrued and unpaid interest (to
the extent no Advance has been made for such amount or any such Advance has
been reimbursed) on the Mortgage Loan or related REO Property, at the per
annum rate equal to the related Mortgage Rate reduced by the related Servicing
Fee Rate and the MGIC PMI Fee Rate, if applicable, to the Due Date occurring
in the month in which such amounts are required to be distributed; and fifth,
as a recovery of principal of the Mortgage Loan. Excess Proceeds, if any, from
the liquidation of a Liquidated Mortgage Loan will be retained by the related
Servicer as additional servicing compensation pursuant to Section 3.14.
(f) Each Servicer of the Mortgage Loans may (but is not obligated
to) enter into a special servicing agreement with an unaffiliated holder of a
100% Percentage Interest of the most junior class of Subordinate Certificates,
subject to each Rating Agency's acknowledgment that the Ratings of the
Certificates in effect immediately prior to the entering into such agreement
would not be qualified, downgraded or withdrawn and the Certificates would not
be placed on credit review status (except for possible upgrading) as a result
of such agreement. Any such agreement may contain provisions whereby such
Holder may (i) instruct the related Servicer to commence or delay foreclosure
proceedings with respect to delinquent Mortgage Loans and will contain
provisions for the deposit of cash with such Servicer by the holder that would
be available for distribution to Certificateholders if Liquidation Proceeds
are less than they otherwise may have been had such Servicer acted in
accordance with its normal procedures, (ii) purchase delinquent Mortgage Loans
from the Trust Fund immediately prior to the commencement of foreclosure
proceedings at a price equal to the aggregate outstanding Principal Balance of
such Mortgage Loans plus accrued interest thereon at the applicable Mortgage
Rate through the last day of the month in which such Mortgage Loan is
purchased, and/or (iii) assume all of the servicing rights and obligations
with respect to delinquent Mortgage Loans so long as such Holder (A) meets the
requirements for a Subservicer set forth in Section 3.02(a), (B) will service
such Mortgage Loans in accordance with this Agreement and (C) the Servicer has
the right to transfer such servicing rights without the payment of any
compensation to a subservicer.
(g) Calmco, at its option, may (but is not obligated to) purchase
from the Trust Fund, (a) any Mortgage Loan that is delinquent in payment 90 or
more days or (b) any related Mortgage Loan with respect to which there has
been initiated legal action or other proceedings for the foreclosure of the
related Mortgaged Property either judicially or non-judicially, in each case,
provided that the applicable servicer has the right to transfer the related
servicing rights without the payment of any compensation to a subservicer. Any
such purchase shall be made by Calmco with its own funds at a price equal to
the Purchase Price for such Mortgage Loan.
SECTION 3.12 Trustee and Trust Administrator to Cooperate; Release
of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by a
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, such Servicer will immediately notify the
Trustee, or the Custodian on its behalf, by delivering, or causing to be
delivered a "Request for Release" substantially in the form of Exhibit K. Upon
receipt of such request, the Trustee, or the Custodian on its behalf, shall
within three Business Days release the related Mortgage File to the related
Servicer, and the Trustee shall within three Business Days of such Servicer's
direction execute and deliver to such Servicer the request for reconveyance,
deed of reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage in each case provided by such Servicer,
together with the Mortgage Note with written evidence of cancellation thereon.
Expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor. From time to time
and as shall be appropriate for the servicing or foreclosure of any Mortgage
Loan, including for such purpose, collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy, or for the
purposes of effecting a partial release of any Mortgaged Property from the
lien of the Mortgage or the making of any corrections to the Mortgage Note or
the Mortgage or any of the other documents included in the Mortgage File, the
Trustee, or the Custodian on its behalf within three Business Days of delivery
to the Trustee, or the Custodian on its behalf of a Request for Release in the
form of Exhibit K signed by a Servicing Officer, release the Mortgage File to
the related Servicer. Subject to the further limitations set forth below, the
related Servicer shall cause the Mortgage File or documents so released to be
returned to the Trustee, or the Custodian on its behalf, when the need
therefor by such Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the related Collection
Account, in which case such Servicer shall deliver to the Trustee, or the
Custodian on its behalf, a Request for Release in the form of Exhibit K,
signed by a Servicing Officer.
If a Servicer at any time seeks to initiate a foreclosure proceeding
in respect of any Mortgaged Property as authorized by this Agreement, such
Servicer shall deliver or cause to be delivered to the Trust Administrator,
for signature, as appropriate, any court pleadings, requests for trustee's
sale or other documents necessary to effectuate such foreclosure or any legal
action brought to obtain judgment against the Mortgagor on the Mortgage Note
or the Mortgage or to obtain a deficiency judgment or to enforce any other
remedies or rights provided by the Mortgage Note or the Mortgage or otherwise
available at law or in equity.
SECTION 3.13 Documents, Records and Funds in Possession of a
Servicer to be Held for the Trust Administrator.
Notwithstanding any other provisions of this Agreement, each
Servicer shall transmit to the Trustee, or the Custodian on its behalf, as
required by this Agreement all documents and instruments in respect of a
Mortgage Loan coming into the possession of the related Servicer from time to
time required to be delivered to the Trustee, or the Custodian on its behalf,
pursuant to the terms hereof and shall account fully to the Trust
Administrator for any funds received by such Servicer or which otherwise are
collected by such Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, a Servicer in respect of any Mortgage Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds, including but not limited to, any funds on deposit in a
Collection Account, shall be held by the related Servicer for and on behalf of
the Trustee or the Trust Administrator and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of
this Agreement. Each Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the related
Collection Account, Certificate Account or any related Escrow Account, or any
funds that otherwise are or may become due or payable to the Trustee or the
Trust Administrator for the benefit of the Certificateholders, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Mortgage File or any funds collected on, or in connection
with, a Mortgage Loan, except, however, that such Servicer shall be entitled
to set off against and deduct from any such funds any amounts that are
properly due and payable to such Servicer under this Agreement.
SECTION 3.14 Servicing Fee.
(a) As compensation for its services hereunder, each Servicer shall
be entitled to withdraw from the applicable Collection Account or to retain
from interest payments on the related Mortgage Loans the amount of its
Servicing Fee for each Mortgage Loan serviced by it, less any amounts in
respect of its Servicing Fee payable by such Servicer pursuant to Section
3.05(c)(vi). The Servicing Fee is limited to, and payable solely from, the
interest portion of such Scheduled Payments collected by the related Servicer
or as otherwise provided in Section 3.08(a).
(b) Additional servicing compensation in the form of Ancillary
Income shall be retained by the related Servicer. Each Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including the payment of any expenses incurred in
connection with any Subservicing Agreement entered into pursuant to Section
3.02 and the payment of any premiums for insurance required pursuant to
Section 3.18) and shall not be entitled to reimbursement thereof except as
specifically provided for in this Agreement.
SECTION 3.15 Access to Certain Documentation.
Each Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinate
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the related
Mortgage Loans required by applicable regulations of the OTS and the FDIC.
Such access shall be afforded without charge, but only upon reasonable and
prior written request and during normal business hours at the offices
designated by such Servicer. Nothing in this Section shall limit the
obligation of any Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of such
Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section. Nothing in this
Section 3.15 shall require any Servicer to collect, create, collate or
otherwise generate any information that it does not generate in its usual
course of business.
SECTION 3.16 Annual Statement as to Compliance.
Each Servicer shall deliver to the Depositor, the Rating Agencies,
the Trustee and the Trust Administrator on or before 120 days after the end of
such Servicer's fiscal year, commencing in its 2001 fiscal year, an Officer's
Certificate stating, as to the signer thereof, that (i) a review of the
activities of such Servicer during the preceding calendar year and of the
performance of such Servicer under this Agreement has been made under such
officer's supervision, and (ii) to the best of such officer's knowledge, based
on such review, such Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the action being taken by such
Servicer to cure such default.
SECTION 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 120 days after the end of each Servicer's fiscal year,
commencing in its 2001 fiscal year, each Servicer at its expense shall cause a
nationally or regionally recognized firm of independent public accountants
(who may also render other services to such Servicer, any Seller or any
affiliate thereof) which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Trust Administrator, and the
Depositor to the effect that (i) with respect to each Servicer other than
WMMSC, such firm has examined certain documents and records relating to the
servicing of mortgage loans which such Servicer is servicing, including the
related Mortgage Loans, and that, on the basis of such examination, conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs, nothing has come to their
attention which would indicate that such servicing has not been conducted in
compliance with Accepted Servicing Practices, except for (a) such exceptions
as such firm shall believe to be immaterial, and (b) such other exceptions as
shall be set forth in such statement and (ii) with respect to WMMSC as
servicer of the WMMSC Serviced Mortgage Loans, in connection with the firm's
examination of the financial statements as of the previous December 31 of
WMMSC's parent corporation (which shall include a limited examination of
WMMSC's financial statements), nothing came to their attention that indicated
that WMMSC was not in compliance with the terms of this Agreement, except for
(a) such exceptions as such firm believes to be immaterial, and (b) such other
exceptions as are set forth in such statement. In rendering such statement,
such firm may rely, as to matters relating to direct servicing of mortgage
loans by 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 such Servicer to the Trust Administrator.
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
Each Servicer shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the related Mortgage Loans ("Servicer Employees"). Any such
Fidelity Bond and Errors and Omissions Insurance Policy shall be in the form
of the Mortgage Banker's Blanket Bond and shall protect and insure the related
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Servicer Employees. Such Fidelity
Bond and Errors and Omissions Insurance Policy also shall protect and insure
each Servicer against losses in connection with the release or satisfaction of
a related Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.18 requiring such
Fidelity Bond and Errors and Omissions Insurance Policy shall diminish or
relieve a Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by FNMA. Upon the
request of the Trust Administrator, the related Servicer shall cause to be
delivered to the Trust Administrator a certificate of insurance of the insurer
and the surety including a statement from the surety and the insurer that such
fidelity bond and insurance policy shall in no event be terminated or
materially modified without 30 days' prior written notice to the Trust
Administrator.
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution.
I. (A) On each Distribution Date, with respect to the Group I Certificates,
the Group II Certificates, the Group IV Certificates and the Class A-P
Certificates the Trust Administrator shall determine the amounts to be
distributed to each class of certificates as follows:
(a) with respect to Group I Certificates and the Class A-P Certificates,
before the Credit Support Depletion Date, and from the Available
Distribution Amount relating to Loan Group I:
(i) first, to MGIC, the MGIC Premium related to Loan Group I for
such Distribution Date;
(ii) second, to the Class A-P Certificates, the Class I-P Principal
Distribution Amount;
(iii)third, to the Group I Certificates and the Group III Interest
Remittance Amount, pro rata, an amount allocable to interest
equal to the related Interest Distribution Amount or, in the
case of the Group III Interest Remittance Amount, the Group I
Excess Interest Amount for such Distribution Date, any
shortfall being allocated pro rata among such Classes in
proportion to the amount of the Interest Distribution Amount or
Group I Excess Interest Amount, as applicable, that would have
been distributed in the absence of such shortfall;
(iv) fourth, on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for Loan
Group I remaining after giving effect to the distributions
pursuant to clauses I(a)(i) through I(a)(iii) above, to the
Group I Certificates, the related Senior Principal Distribution
Amount, in the following order of priority:
(A) first, to the Class AR Certificates, until the Class
Principal Balance of the Class AR Certificates has been
reduced to zero;
(B) second, concurrently, as follows:
(0) 00.0000000000%, to the Class I-A-3 Certificates,
until the Class Principal Balance of the Class I-A-3
Certificates has been reduced to zero;
(0) 00.0000000000% concurrently, as follows:
(a) 14.2857137959% to the Class I-A-2
Certificates, until the Class Principal
Balance of the Class I-A-2 Certificates has
been reduced to zero; and
(b) 85.7142862041% to the Class I-A-1
Certificates, until the Class Principal
Balance of the Class I-A-1 Certificates has
been reduced to zero.
(b) with respect to Group II Certificates and the Class A-P
Certificates, before the Credit Support Depletion Date, and from the
Available Distribution Amount relating to Loan Group II:
(i) first, to MGIC, the MGIC Premium related to Loan Group II for
such Distribution Date;
(ii) second, to the Class A-P Certificates, the Class II-P Principal
Distribution Amount;
(iii)third, to the Group II Certificates (other than the Class
II-A-8 Certificates) and the Group III Interest Remittance
Amount, pro rata, an amount equal to the related Interest
Distribution Amount or, in the case of the Group III Interest
Remittance Amount, the Group II Excess Interest Amount for such
Distribution Date, any shortfall being allocated pro rata among
such Classes in proportion to the amount of the Interest
Distribution Amount or Group II Excess Interest Amount, as
applicable, that would have been distributed in the absence of
such shortfall;
(iv) fourth, on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for Loan
Group II remaining after giving effect to the distributions
pursuant to clauses I(b)(i) through I(b)(iii) above, to the
Group II Senior Certificates (other than the Class II-A-8
Certificates), the related Senior Principal Distribution
Amount, in the following order of priority:
(A) first, the Group II Priority Amount, concurrently, as follows:
(0) 00.0000000000% to the Class II-A-3 Certificates, until the
Class Principal Balance of the Class II-A-3 Certificates
has been reduced to zero; and
(0) 00.0000000000% to the Class II-A-7 Certificates, until the
Class Principal Balance of the Class II-A-7 Certificates
has been reduced to zero; and
(B) second, concurrently, as follows:
(0) 00.0000000000% concurrently, as follows:
(a) 99.0000000000% to the Class II-A-9 Certificates,
until the Class Principal Balance of the Class II-A-9
Certificates has been reduced to zero; and
(b) 0.5898727114% to the Class II-A-4 Certificates, until
the Class Principal Balance of the Class II-A-4
Certificates has been reduced to zero; and
(0) 00.0000000000% to the Class II-A-1 Certificates, until the
Class Principal Balance of the Class II-A-1 Certificates
has been reduced to zero; and
(C) third, to the Class II-A-2 Certificates, until the Class
Principal Balance of the Class II-A-2 Certificates has been
reduced to zero;
(D) fourth, to the Class II-A-5 Certificates, until the Class
Principal Balance of the Class II-A-5 Certificates has been
reduced to zero;
(E) fifth, to the Class II-A-6 Certificates, until the Class
Principal Balance of the Class II-A-6 Certificates has been
reduced to zero; and
(F) sixth, concurrently, as follows:
(0) 00.0000000000% to the Class II-A-3 Certificates, until the
Class Principal Balance of the Class II-A-3 Certificates
has been reduced to zero; and
(0) 00.0000000000% to the Class II-A-7 Certificates, until the
Class Principal Balance of the Class II-A-7 Certificates
has been reduced to zero.
(c) with respect to Certificate Group IV Certificates and the Class A-P
Certificates, before the Credit Support Depletion Date, and from the
Available Distribution Amount relating to Loan Group IV:
(i) first, to MGIC, the MGIC Premium related to Loan Group IV for
such Distribution Date;
(ii) second, to the Class A-P Certificates, the Class IV-P Principal
Distribution Amount;
(iii)third, to the Group IV Certificates (other than the Class
IV-A-4 Certificates)and the Group III Interest Remittance
Amount, pro rata, an amount equal to the related Interest
Distribution Amount or, in the case of the Group III Interest
Remittance Amount, the Group IV Excess Interest Amount for such
Distribution Date, any shortfall being allocated pro rata among
such Classes in proportion to the amount of the Interest
Distribution Amount or Group IV Excess Interest Amount, as
applicable, that would have been distributed in the absence of
such shortfall;
(iv) fourth, on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for Loan
Group IV remaining after giving effect to the distributions
pursuant to clauses I(c)(i) through I(c)(iii) above, to the
Group IV Senior Certificates (other than the Class IV-A-2 and
IV-A-5 Certificates), the related Senior Principal Distribution
Amount, concurrently, as follows:
(A) 27.3177123151% concurrently, as follows:
(0) 0.0000000000% to the Class IV-A-4 Certificates, until
the Class Principal Balance of the Class IV-A-4
Certificates has been reduced to zero; and
(0) 00.0000000000% to the Class IV-A-1 Certificates,
until the Class Principal Balance of the Class IV-A-1
Certificates has been reduced to zero; and
(B) 72.6822876849% sequentially, as follows:
(1) first, to the Class IV-A-6 Certificates, the
Class IV-A-6 Priority Amount, until the Class
Principal Balance of the Class IV-A-6 Certificates
has been reduced to zero;
(2) second, concurrently, as follows:
(a) 2.9411759600% to the Class IV-A-4
Certificates, until the Class Principal
Balance of the Class IV-A-4 Certificates has
been reduced to zero; and
(b) 97.0588240400% to the Class IV-A-3
Certificates, until the Class Principal
Balance of the Class IV-A-3 Certificates has
been reduced to zero; and
(3) third, to the Class IV-A-6 Certificates, until
the Class Principal Balance of the Class IV-A-6
Certificates has been reduced to zero.
(d) from the Available Distribution Amount relating to Loan Group I,
Loan Group II and Loan Group IV remaining after the distributions
pursuant to (a), (b) and (c) above, before the Credit Support
Depletion Date, to the Class A-P Certificates and each Class of
Subordinate Certificates relating to Loan Group I, Loan Group II and
Loan Group IV, subject to paragraphs (B) and (C) below, and further
subject to any payments to the Group I, Group II and Group IV
Certificates as described in Section 4.06, in the following order of
priority:
(i) first, to the Class A-P Certificates, to the extent of amounts
otherwise available to pay the Subordinate Principal
Distribution Amount (without regard to clause (B)(x) of that
definition) on that Distribution Date, the sum of (a) principal
in an amount equal to the Class I-P, Class II-P or Class IV-P
Fraction of any loss on a Class I-P, Class II-P or Class IV-P
Mortgage Loan, respectively, incurred in the previous calendar
month (other than a loss that has been allocated by Pro Rata
Allocation) and (b) the sum of the amounts, if any, by which
the amount described in clause (a) above on each prior
Distribution Date exceeded the amount actually distributed on
those prior Distribution Dates and not subsequently
distributed; provided, however, that any amounts distributed in
respect of losses pursuant to this paragraph (d)(i) will not
cause a further reduction in the Class Principal Balance on the
Class A-P Certificates; provided, further, that if the amount
otherwise available to pay the Subordinate Principal
Distribution Amount (without regard to (B)(x) of that
definition for any Distribution Date is insufficient to cover
such outstanding principal losses as provided above, then that
amount will be allocated to the Class A-P Certificates;
(ii) second, to the Class C-B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class for such Distribution Date;
(iii)third, to the Class C-B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Certificate Principal Balance of Class C-B-1
Certificates has been reduced to zero;
(iv) fourth, to the Class C-B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class, for such Distribution Date;
(v) fifth, to the Class C-B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Certificate Principal Balance of Class C-B-2
Certificates has been reduced to zero;
(vi) sixth, to the Class C-B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such
Class for such Distribution Date;
(vii)seventh, to the Class C-B-3 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution
Date until the Certificate Principal Balance of Class C-B-3
Certificates has been reduced to zero;
(viii)eighth, to the Class C-B-4, Class C-B-5 and Class C-B-6
Certificates, interest and principal in the same manner as for
the Class C-B-1, Class C-B-2 and Class C-B-3 Certificates,
first to the Class C-B-4 Certificates, then to the Class C-B-5
Certificates and then to the Class C-B-6 Certificates;
(ix) ninth, to the Class C-B-1, Class C-B-2, Class C-B-3, Class
C-B-4, Class C-B-5 and Class C-B-6 Certificates, in that order,
up to an amount of unreimbursed realized losses previously
allocated to that Class, if any; provided, however, that any
amounts distributed pursuant to this paragraph (d)(ix) will not
cause a further reduction in the Class Principal Balances of
any of the Group C-B Certificates; and (x) tenth, to the Class
AR Certificates, any remaining Available Distribution Amount
for Loan Group I, Loan Group II and Loan Group IV.
(e) On or after the Credit Support Depletion Date, distributions of the
Available Distribution Amount for Loan Group I will be made with
respect to the Group I and Class A-P Certificates as follows:
(i) first, to the Class A-P Certificates, the Class I-P Principal
Distribution Amount;
(ii) second, to the Group I Certificates and the Group III Interest
Remittance Amount, pro rata, an amount allocable to interest
equal to the related Interest Distribution Amount or, in the
case of the Group III Interest Remittance Amount, the Group I
Excess Interest Amount for such Distribution Date, any
shortfall being allocated pro rata among such Classes in
proportion to the amount of the Interest Distribution Amount or
Group I Excess Interest Amount, as applicable, that would have
been distributed in the absence of such shortfall;
(iii)third, to the Group I Senior Certificates, pro rata, as
principal, the Group I Senior Principal Distribution Amount;
and
(iv) fourth, after any payments to the Group II and Group IV
Certificates as described in Section 4.06, to the Class AR
Certificates.
(f) On or after the Credit Support Depletion Date, distributions of the
Available Distribution Amount for Loan Group II will be made with
respect to the Group II and Class A-P Certificates as follows:
(i) first, to the Class A-P Certificates, the Class II-P Principal
Distribution Amount;
(ii) second, to the Group II Senior Certificates and the Group III
Interest Remittance Amount, pro rata, an amount allocable to
interest equal to the related Interest Distribution Amount or,
in the case of the Group III Interest Remittance Amount, the
Group II Excess Interest Amount for such Distribution Date, any
shortfall being allocated pro rata among such Classes in
proportion to the amount of the Interest Distribution Amount or
Group II Excess Interest Amount, as applicable, that would have
been distributed in the absence of such shortfall;
(iii)third, to the Group II Senior Certificates, pro rata, as
principal, the Group II Senior Principal Distribution Amount;
and
(iv) fourth, after any payments to the Group I and Group IV
Certificates as described in Section 4.06, to the Class AR
Certificates.
(g) On or after the Credit Support Depletion Date, distributions of the
Available Distribution Amount for Loan Group IV will be made with
respect to the Group IV and Class A-P Certificates as follows:
(i) first, to the Class A-P Certificates, the Class IV-P Principal
Distribution Amount;
(ii) second, to the Group IV Senior Certificates and the Group III
Interest Remittance Amount, pro rata, an amount allocable to
interest equal to the related Interest Distribution Amount or,
in the case of the Group III Interest Remittance Amount, the
Group IV Excess Interest Amount for such Distribution Date, any
shortfall being allocated pro rata among such Classes in
proportion to the amount of the Interest Distribution Amount or
Group IV Excess Interest Amount, as applicable, that would have
been distributed in the absence of such shortfall;
(iii)third, to the Group IV Senior Certificates, pro rata, as
principal, the Group IV Senior Principal Distribution Amount;
and
(iv) fourth, after any payments to the Group I and Group II
Certificates as described in Section 4.06, to the Class AR
Certificates.
(B) On each Distribution Date, the amount referred to in clause (i)
of the definition of Interest Distribution Amount for such Distribution Date
for each Class of Group I Certificates, Group II Certificates and Group IV
Certificates shall be reduced by the Trust Administrator by, (i) the related
Class' pro rata share (based on the applicable Interest Distribution Amount
for each such Class before reduction pursuant to this Section 4.01I(B)(i)) of
Net Prepayment Interest Shortfalls for Mortgage Loans in Loan Group I, Loan
Group II and Loan Group IV; and (ii) the Class' Pro Rata Allocation of (A)
after the Special Hazard Loss Coverage Termination Date, with respect to each
Mortgage Loan in such Loan Groups that became a Special Hazard Mortgage Loan
during the related Prepayment Period, the excess of one month's interest at
the related Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan as of the Due Date in such month over the amount of Liquidation Proceeds
applied as interest on such Mortgage Loan with respect to such month, (B)
after the Bankruptcy Coverage Termination Date, with respect to each Mortgage
Loan in such Loan Groups that became subject to a Bankruptcy Loss during the
related Prepayment Period, the interest portion of the related Debt Service
Reduction or Deficient Valuation, (C) each Relief Act Reduction for any
Mortgage Loan in such Loan Groups incurred during the related Prepayment
Period and (D) after the Fraud Loss Coverage Termination Date, with respect to
each Mortgage Loan in such Loan Groups that became a Fraud Loan during the
related Prepayment Period the excess of one month's interest at the related
Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month.
(C) With respect to each Class of Subordinate Certificates relating
to Group I, Group II or Group IV, if on any Distribution Date the related
Subordination Level of such Class is less than such percentage as of the
Closing Date, no distribution of Principal Prepayments in Full and Principal
Prepayments in Part will be made to any Class or Classes of Subordinate
Certificates junior to such Class (the "Restricted Classes") and the amount
otherwise distributable to the Restricted Classes in respect of such Principal
Prepayments in Full and Principal Prepayments in Part will be allocated among
the remaining Classes of Subordinate Certificates, pro rata, based upon their
respective Class Principal Balances.
II. With respect to Group III Certificates:
(a) On each Distribution Date, the Trust Administrator shall
distribute the Interest Remittance Amount for such date in the
following order of priority:
(i) to the Certificate Insurer, any premium due with respect
to the Certificate Insurance Policy for such Distribution
Date;
(ii) to MGIC, the MGIC Premium related to Loan Group III for
such Distribution Date;
(iii) to the Group III Senior Certificates, pro rata, Current
Interest and any Carryforward Interest for each such Class
and such Distribution Date; provided, however, that on or
before the Class III-A-6 Accretion Termination Date, the
amount of interest that would otherwise be distributable
to the Class III-A-6 Certificates pursuant to this clause
(a)(iii) will instead be distributable as principal, to
the Class III-A-2, Class III-A-3, Class III-A-4 and Class
III-A-5 Certificates, until reduced to their aggregate
Targeted Balance as shown in Schedule VII for such
Distribution Date, sequentially, as follows: (A) to the
Class III-A-2 Certificates, until the Class Principal
Balance of the Class III-A-2 Certificates has been reduced
to zero, (B) to the Class III-A-3 Certificates, until the
Class Principal Balance of the Class III-A-3 Certificates
has been reduced to zero; (C) to the Class III-A-4 and
Class III-A-5 Certificates, pro rata based on Class
Principal Balance, until the Class Principal Balance of
the Class III-A-4 and Class III-A-5 Certificates has been
reduced to zero; and (D) to the Class III-A-6
Certificates, until the Class Principal Balance of the
Class III-A-6 Certificates has been reduced to zero;
provided further, however, that on or before the Class
III-A-14 Accretion Termination Date, the amount of
interest that would otherwise be distributable to the
Class III-A-14 Certificates pursuant to this clause
(a)(iii) will instead be distributable as principal, to
the Class III-A-12 Certificates, until reduced to their
Targeted Balance as shown in Schedule IX for such
Distribution Date, sequentially, as follows: (A) to the
Class III-A-12 Certificates, until the Class Principal
Balance of the Class III-A-12 Certificates has been
reduced to zero and (B) to the Class III-A-14
Certificates, until the Class Principal Balance of the
Class III-A-14 Certificates has been reduced to zero,
provided further, however, that on or before the Class
III-A-15 Accretion Termination Date, the amount of
interest that would otherwise be distributable to the
Class III-A-15 Certificates pursuant to this clause
(a)(iii) will instead be distributable as principal, to
the Class III-A-12 and Class III-A-14 Certificates, until
reduced to their aggregate Targeted Balance as shown in
Schedule VIII for such Distribution Date, sequentially, as
follows: (A) to the Class III-A-12 Certificates, until
reduced to their Targeted Balance as shown in Schedule IX
for such Distribution Date, (B) to the Class III-A-14
Certificates, until the Class Principal Balance of the
Class III-A-14 Certificates has been reduced to zero, (C)
to the Class III-A-12 Certificates, until the Class
Principal Balance of the Class III-A-12 Certificates has
been reduced to zero, and (D) to the Class III-A-15
Certificates, until the Class Principal Balance of the
Class III-A-15 Certificates has been reduced to zero;
(iv) to the Certificate Insurer, an amount (the "Reimbursement
Amount") equal to the sum of (a) all amounts previously
paid by the Certificate Insurer under the Certificate
Insurance Policy which have not been previously reimbursed
and (b) interest on the foregoing at Late Payment Rate;
(v) to the Class III-M Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution
Date; and
(vi) for application as part of Monthly Excess Cashflow for
such Distribution Date as provided in Section 4.01 II(d),
any Interest Remittance Amount remaining for such
Distribution Date.
(b) On each Distribution Date (A) prior to the Stepdown Date or (B) with
respect to which a Trigger Event has occurred, the Trust
Administrator shall distribute the Principal Payment Amount for Loan
Group III for such date concurrently, as follows:
(i) 45.2500148443%, sequentially, as follows:
(A) first, to the Class III-A-1 and Class III-A-8
Certificates, until reduced to their aggregate
Planned Balance as shown in Schedule V for such
Distribution Date, sequentially, as follows:
(1) to the Class III-A-1 Certificates, until the
Class Principal Balance of the Class III-A-1
Certificates has been reduced to zero; and
(2) to the Class III-A-8 Certificates, until the
Class Principal Balance of the Class III-A-8
Certificates is reduced to zero; and
(B) second, to the Class III-A-2, Class III-A-3, Class
III-A-4 and Class III-A-5 Certificates, until reduced
to their aggregate Targeted Balance as shown in
Schedule VII for such Distribution Date (and after
giving effect to the distribution of the Class
III-A-6 Accrual Amount on such Distribution Date),
sequentially, as follows:
(1) to the Class III-A-2 Certificates, until the
Class Principal Balance of the Class III-A-2
Certificates has been reduced to zero;
(2) to the Class III-A-3 Certificates, until the
Class Principal Balance of the Class III-A-3
Certificates has been reduced to zero;
(3) concurrently, to the Class III-A-4 and Class
III-A-5 Certificates, pro rata based on Class
Principal Balance, until the Class Principal
Balance of each of the Class III-A-4 and Class
III-A-5 Certificates has been reduced to zero;
(C) third, to the Class III-A-6 Certificates, until the
Class Principal Balance of the Class III-A-6
Certificates has been reduced to zero;
(D) fourth, to the Class III-A-2, Class III-A-3, Class
III-A-4 and Class III-A-5 Certificates, without
regard to their aggregate Targeted Balance, in the
order described in clause II(b)(i)(B) above, until
the Class Principal Balance of each of the Class
III-A-2, Class III-A-3, Class III-A-4 and Class
III-A-5 Certificates has been reduced to zero;
(E) fifth, to the Class III-A-1 and Class III-A-8
Certificates, without regard to their aggregate
Planned Balance, in the order described in clause
II(b)(i)(A) above, until the Class Principal Balance
of each of the Class III-A-1 and Class III-A-8
Certificates has been reduced to zero;
(F) sixth, to the Certificate Insurer, any reimbursement
for amounts paid under the Certificate Insurance
Policy, to the extent not already paid pursuant to
Section 4.01(II)(a)(iv) above, together with interest
thereon at the Late Payment Rate;
(G) seventh, to the Class III-M Certificates, until the
Class Principal Balance of such Class has been
reduced to zero; and
(H) eighth, for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
Section 4.01 II(d), any Principal Payment Amount
remaining after application pursuant to clauses
II(b)(i)(A) through (G) above; and
(ii) 54.7499851557%, sequentially, as follows:
(A) first, to the Class III-A-10, Class III-A-11 and
Class III-A-16 Certificates, until reduced to their
aggregate Planned Balance as shown in Schedule VI for
such Distribution Date, concurrently, as follows:
(0) 00.0000000000% to the Class III-A-10
Certificates, until the Class Principal Balance
of the Class III-A-10 Certificates has been
reduced to zero;
(0) 00.0000000000% to the Class III-A-11
Certificates, until the Class Principal Balance
of the Class III-A-11 Certificates has been
reduced to zero; and
(0) 00.0000000000% to the Class III-A-16
Certificates, until the Class Principal Balance
of the Class III-A-16 Certificates has been
reduced to zero; and
(B) second, to the Class III-A-12 and Class III-A-14
Certificates, until reduced to their aggregate
Targeted Balance as shown in Schedule VIII for such
Distribution Date (and after giving effect to the
distribution of the Class III-A-14 Accrual Amount and
the Class III-A-15 Accrual Amount), sequentially, as
follows:
(1) to the Class III-A-12 Certificates, until
reduced to their Targeted Balance as shown in
Schedule IX for such Distribution Date (and
after giving effect to the distribution of the
Class III-A-14 Accrual Amount and the Class
III-A-15 Accrual Amount), until the Class
Principal Balance of the Class III-A-12
Certificates has been reduced to zero;
(2) to the Class III-A-14 Certificates, until the
Class Principal Balance of the Class III-A-14
Certificates has been reduced to zero;
(3) to the Class III-A-12 Certificates, until the
Class Principal Balance of the Class III-A-12
Certificates has been reduced to zero; and
(C) third, to the Class III-A-15 Certificates, until the
Class Principal Balance of the Class III-A-15
Certificates has been reduced to zero;
(D) fourth, to the Class III-A-12 and Class III-A-14
Certificates, without regard to their aggregate
Targeted Balance, in the order described in clauses
II(b)(ii)(B) above, until the Class Principal Balance
of each of the Class III-A-12 and Class III-A-14
Certificates has been reduced to zero;
(E) fifth, to the Class III-A-10, Class III-A-11 and
Class III-A-16 Certificates, without regard to their
aggregate Planned Balances, in the order described in
clause II(b)(ii)(A) above, until the Class Principal
Balance of each of the Class III-A-10, Class III-A-11
and Class III-A-16 Certificates has been reduced to
zero;
(F) sixth, to the Certificate Insurer, any reimbursement
for amounts paid under the Certificate Insurance
Policy, to the extent not already paid pursuant to
Sections 4.01(II)(a)(iv) and 4.01(II)(b)(i)(F) above,
together with interest thereon at the Late Payment
Rate;
(G) seventh, to the Class III-M Certificates, until the
Class Principal Balance of such Class has been
reduced to zero; and
(H) eighth, for application as part of Monthly Excess
Cashflow for such Distribution Date, as provided in
Section 4.01 II(d), any Principal Payment Amount
remaining after application pursuant to clauses
II(b)(ii)(A) through (G) above.
(c) On each Distribution Date (A) on or after the Stepdown Date and (B)
with respect to which a Trigger Event has not occurred, the Trust
Administrator shall distribute the Principal Payment Amount for such
date in the following order of priority:
(i) first, to the Group III Senior Certificates, the Senior
Principal Payment Amount for such Distribution Date,
concurrently, as follows:
(A) 45.2500148443%, sequentially, as follows:
(1) first, to the Class III-A-1 and Class III-A-8
Certificates, until reduced to their aggregate
Planned Balance as shown in Schedule V for such
Distribution Date, sequentially, as follows:
(a) to the Class III-A-1 Certificates, until the
Class Principal Balance of the Class III-A-1
Certificates has been reduced to zero; and
(b) to the Class III-A-8 Certificates, until the
Class Principal Balances of the Class III-A-8
Certificates is reduced to zero; and
(2) second, to the Class III-A-2, Class III-A-3, Class
III-A-4 and Class III-A-5 Certificates, until reduced
to their aggregate Targeted Balance as shown in
Schedule VII for such Distribution Date (and after
giving effect to the distribution of the Class
III-A-6 Accrual Amount on such Distribution Date),
sequentially, as follows:
(a) to the Class III-A-2 Certificates, until the
Class Principal Balance of the Class III-A-2
Certificates has been reduced to zero;
(b) to the Class III-A-3 Certificates, until the
Class Principal Balance of the Class III-A-3
Certificates has been reduced to zero;
(c) concurrently, to the Class III-A-4 and Class
III-A-5 Certificates, pro rata based on Class
Principal Balance, until the Class Principal
Balance of each of the Class III-A-4 and Class
III-A-5 Certificates has been reduced to zero;
(3) third, to the Class III-A-6 Certificates, until the
Class Principal Balance of the Class III-A-6
Certificates has been reduced to zero;
(4) fourth, to the Class III-A-2, Class III-A-3, Class
III-A-4 and Class III-A-5 Certificates, without
regard to their aggregate Targeted Balance, in the
order described in clause II(c)(i)(A)(1) above, until
the Class Principal Balance of each of the Class
III-A-2, Class III-A-3 and Class III-A-4 Class
III-A-6 Certificates has been reduced to zero;
(5) fifth, to the Class III-A-1 and Class III-A-8
Certificates, without regard to their aggregate
Planned Balance, in the order described in clause
II(c)(i)(A)(1) above, until the Class Principal
Balance of each of the Class III-A-1 and Class
III-A-8 Certificates has been reduced to zero.
(B) 54.7499851557%, sequentially, as follows:
(1) first, to the Class III-A-10, Class III-A-11 and
Class III-A-16 Certificates, until reduced to their
aggregate Planned Balance as shown in Schedule VI for
such Distribution Date, concurrently, as follows:
(a) 21.5334185848% to the Class III-A-10
Certificates, until the Class Principal Balance
of the Class III-A-10 Certificates has been
reduced to zero;
(b) 50.7749360614% to the Class III-A-11
Certificates, until the Class Principal Balance
of the Class III-A-11 Certificates has been
reduced to zero; and
(c) 27.6916453538% to the Class III-A-16
Certificates, until the Class Principal Balance
of the Class III-A-16 Certificates has been
reduced to zero; and
(2) second, to the Class III-A-12 and Class III-A-14
Certificates, until reduced to their aggregate
Targeted Balance as shown in Schedule VIII for such
Distribution Date (and after giving effect to the
distribution of the Class III-A-14 Accrual Amount and
the Class III-A-15 Accrual Amount), sequentially, as
follows:
(a) to the Class III-A-12 Certificates, until
reduced to their Targeted Balance as shown in
Schedule IX for such Distribution Date (and
after giving effect to the distribution of the
Class III-A-14 Accrual Amount and the Class
III-A-15 Accrual Amount), until the Class
Principal Balance of the Class III-A-12
Certificates has been reduced to zero;
(b) to the Class III-A-14 Certificates, until the
Class Principal Balance of the Class III-A-14
Certificates has been reduced to zero; and
(c) to the Class III-A-12 Certificates, until the
Class Principal Balance of the Class III-A-12
Certificates has been reduced to zero; and
(3) third, to the Class III-A-15 Certificates, until the
Class Principal Balance of the Class III-A-15
Certificates has been reduced to zero;
(4) fourth, to the Class III-A-12 and Class III-A-14
Certificates, without regard to their aggregate
Targeted Balance, in the order described in clause
II(c)(i)(B)(2) above, until the Class Principal
Balance of each of the Class III-A-12 and Class
III-A-14 Certificates has been reduced to zero; and
(5) fifth, to the Class III-A-10, Class III-A-11 and
Class III-A-16 Certificates, without regard to their
aggregate Planned Balance, in the order described in
Clause II(c)(i)(B)(1) above, until the Class
Principal Balance of each of the Class III-A-10,
Class III-A-11 and Class III-A-16 Certificates has
been reduced to zero;
(ii) second, to the Certificate Insurer, any reimbursement for amounts
paid under the Certificate Insurance Policy, to the extent not
already paid pursuant to Sections 4.01(II)(a)(iv), 4.01(II)(b) and
4.01(II)(c)(i) above, together with interest thereon at the Late
Payment Rate;
(iii) third, to the Class III-M Certificates, the Class III-M Principal
Payment Amount, until the Class Principal Balance of such Class has
been reduced to zero; and
(iv) fourth, for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.01 II(d), any Principal
Payment Amount remaining after application pursuant to clauses
II(c)(i) through (iii) above.
(d) On each Distribution Date, the Trust Administrator shall distribute the
Monthly Excess Cashflow for such date in the following order of priority:
(i) (A) until the aggregate Class Principal Balance of the Group
III Certificates equals the Aggregate Loan Group Balance of
Loan Group III for such Distribution Date minus the Targeted
Overcollateralization Amount for such date, on each
Distribution Date (x) prior to the Stepdown Date or (y) with
respect to which a Trigger Event has occurred, to the extent of
Monthly Excess Interest for such Distribution Date, to the
Group III Certificates, in the following order of priority:
(a) to the Group III Senior Certificates, in accordance
with the priority of payments set forth in Section
4.01(II)(b) until the Class Principal Balance of each
Class of Group III Senior Certificates has been
reduced to zero; and
(b) to the Class III-M Certificates, until the Class
Principal Balance of such Class has been reduced to
zero; and
(B) on each Distribution Date on or after the Stepdown Date
and with respect to which a Trigger Event has not
occurred, to fund any principal distributions required to
be made on such Distribution Date set forth above in
Section 4.01 II(b) or (c) above, after giving effect to
the distribution of the Principal ___ Payment Amount for
Loan Group III for such Distribution Date, in accordance
with the priorities set forth therein;
(ii) to the Certificate Insurer, the Reimbursement Amount, to the
extent not already paid pursuant to Sections 4.01(II)(a)
through (c) above, together with interest thereon at the Late
Payment Rate;
(iii) to the Class III-M Certificates, first, any Carryforward
Interest and then any Deferred Amount for such Class;
(iv) to the Class III-X Certificate, the Class III-X Distributable
Amount for such Distribution Date; and
(v) to the Class AR Certificate, any remaining amount.
SECTION 4.02 Allocation of Losses.
A. (a) Realized Losses, other than the Class P Fraction of the
Realized Loss, if applicable, on the Mortgage Loans in each of Loan Group I,
Loan Group II and Loan Group IV with respect to any Distribution Date shall be
allocated by the Trust Administrator to the Classes of Certificates as
follows:
(i) any Realized Loss shall be allocated first, to
the Group C-B Certificates in decreasing order of their numerical
Class designations (beginning with the Class C-B-6 Certificates),
until the respective Class Principal Balance of each such Class is
reduced to zero, and second, to the Senior Certificates of such
Certificate Group (other than the Notional Amount Certificates), pro
rata, on the basis of their respective Class Principal Balances;
provided, however, such losses on Loan Group I, Loan Group II and
Loan Group IV will only be allocated to the respective Senior
Certificates; and
(ii) On each Distribution Date, Excess Losses and
Extraordinary Losses, other than the Class P Fraction of the Excess
Loss, if applicable, for Mortgage Loans in Loan Group I, Loan Group
II and Loan Group IV will be allocated pro rata among all Classes of
Senior Certificates (other than the Class III-X, Class A-P, and
Notional Amount Certificates) and the Subordinate Certificates, in
each case, relating to Loan Group I, Loan Group II and Loan Group
IV, based on their respective Class Principal Balances (except if
the loss is recognized with respect to a Class P Mortgage Loan, in
which case the applicable Class P Fraction of such loss will be
allocated to the Class A-P Certificates and the remainder will be
allocated as described above); provided, however, that in the case
of the Accrual Certificates, on any Distribution Date, these
allocations will be made in accordance with the lesser of their
respective Class Principal Balances as of the Closing Date and their
respective Class Principal Balances as of that Distribution Date.
(b) On each Distribution Date, if the aggregate Class Principal
Balance of all Group I Certificates, Group II Certificates and Group IV
Certificates exceeds the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group I, Loan Group II and Loan Group IV (after giving effect to
distributions of principal and the allocation of all losses to such
Certificates on such Distribution Date), such excess will be deemed a
principal loss and will be allocated by the Trust Administrator to the most
junior Class of Group C-B Certificates then outstanding.
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant
to Section 4.02(b) shall be allocated by the Trust Administrator among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(d) Any allocation by the Trust Administrator of Realized Losses to
a Certificate or any reduction in the Certificate Balance of a Certificate
pursuant to Section 4.02(b) shall be accomplished by reducing the Certificate
Balance thereof, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance."
B. On each Distribution Date, the Trust Administrator shall
determine the total of the Applied Loss Amount with respect to the Group III
Certificates, if any, for such Distribution Date. The Applied Loss Amount with
respect to the Group III Certificates for any Distribution Date shall be
applied by reducing the Class Principal Balance of each Class of Group III
Subordinate Certificates beginning with the Class of Group III Subordinate
Certificates then outstanding, other than the Class III-X Certificates, with
the lowest relative payment priority, in each case until the respective Class
Principal Balance thereof is reduced to zero. Any Applied Loss Amount with
respect to the Group III Certificates allocated to a Class of Group III
Subordinate Certificates shall be allocated among the Group III Subordinate
Certificates of such Class in proportion to their respective Percentage
Interests.
SECTION 4.03 Policy Matters.
(a) As soon as possible, and in no event later than 11:00 a.m., New
York time, on the second Business Day immediately preceding each Distribution
Date, the Trust Administrator shall determine the amount of funds available
for such Distribution Date minus the amount of any FSA Premium and any fee to
paid to the Trustee or Trust Administrator on such Distribution Date
(b) If for any Distribution Date, the Trust Administrator determines
that the funds that will be available for such Distribution Date distributable
to the Holders of the Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 or Class III-A-5 Certificates pursuant to Section 4.01 will be
insufficient to pay the related Insured Payment on such Distribution Date, the
Trust Administrator shall determine the amount of any such deficiency and
shall give notice to FSA and the Fiscal Agent, if any, by telephone or
telecopy of the amount of such deficiency, confirmed in writing by notice
substantially in the form of Exhibit A to the Certificate Insurance Policy by
12:00 noon, New York City time, on such second Business Day. The Trust
Administrator's responsibility for delivering the notice to FSA, as provided
in the preceding sentence is limited to the availability, timeliness and
accuracy of the information provided by each Servicer. The Notice shall
constitute a claim for an Insured Payment pursuant to the FSA Policy. Upon
receipt of the Insured Payment, at or prior to the latest time payments of the
Insured Payment are to be made by the FSA pursuant to the FSA Policy, on
behalf of the Holders of the Class III-A-1, Class III-A-2, Class III-A-3,
Class III-A-4 or Class III-A-5 Certificates, the Trust Administrator shall
deposit such Insured Payments in the Distribution Account and shall distribute
such Insured Payments only in accordance with Section 4.01, if applicable.
(c) The Trust Administrator shall receive as attorney-in-fact of
each Holder of a Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 or
Class III-A-5 Certificate, any Insured Payment from FSA Certificates and
disburse the same to each Holder of a Class III-A-1, Class III-A-2, Class
III-A-3, Class III-A-4 or Class III-A-5 Certificate in accordance with the FSA
Certificate provisions of Article IV. Insured Payments disbursed by the Trust
Administrator from proceeds of the FSA Certificate Policy shall not be
considered payment by the Trust nor shall such payments discharge the
obligation of the Trust with respect to such Class III-A-1, Class III-A-2,
Class III-A-3, Class III-A-4 or Class III-A-5 Certificate, and the FSA
Certificate shall become the owner of such unpaid amounts due from the Trust
in respect of such Insured Payments as the deemed assignee of such Holder and
shall be entitled to receive the FSA Reimbursement Amount pursuant to Section
4.01. The Trust Administrator hereby agrees on behalf of each Holder of a
Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 or Class III-A-5
Certificate for the benefit of FSA that it and they recognize that to the
extent that FSA makes Insured Payments, either directly or indirectly (as by
paying through the Trust Administrator), to the Class III-A-1, Class III-A-2,
Class III-A-3, Class III-A-4 or Class III-A-5 Certificateholders, FSA will be
entitled to receive the Reimbursement Amount pursuant to Section 4.01.
(d) It is understood and agreed that the intention of the parties is
that FSA shall not be entitled to reimbursement on any Distribution Date for
amounts previously paid by it unless on such Distribution Date the Holders of
the Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 or Class
III-A-5 Certificates shall also have received the full amount of the Insured
Payments for such Distribution Date.
(e) In the event the Trust Administrator receives a certified copy
of an order of the appropriate court that any payment of principal or interest
on a Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 or Class
III-A-5 Certificate has been voided in whole or in part as a preference
payment under applicable bankruptcy law, the Trust Administrator shall (i)
promptly notify FSA and the Fiscal Agent, if any, and (ii) comply with the
provisions of the Certificate Insurance Policy to obtain payment by FSA of
such voided payment. In addition, the Trust Administrator shall mail notice to
all Holders of the Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4
and Class III-A-5 Certificates so affected that, in the event that any such
Holder's scheduled payment is so recovered, such Holder will be entitled to
payment pursuant to the terms of the Certificate Insurance Policy a copy of
which shall be made available to such Holders by the Trust Administrator. The
Trust Administrator shall furnish to FSA and the Fiscal Agent, if any, its
records listing the payments on the affected Class III-A-1, Class III-A-2,
Class III-A-3, Class III-A-4 and Class III-A-5 Certificates, if any, that have
been made by the Trust Administrator and subsequently recovered from the
affected Holders, and the dates on which such payments were made by the Trust
Administrator.
(f) At the time of the execution hereof, and for the purposes
hereof, the Trust Administrator shall establish a separate special purpose
trust account in the name of the Trust Administrator for the benefit of
Holders of the Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 and
Class III-A-5 Certificates (the "Certificate Insurance Policy Payments
Account") over which the Trust Administrator shall have exclusive control and
sole right of withdrawal. The Certificate Insurance Policy Payments Account
shall be an Eligible Account. The Trust Administrator shall deposit any amount
paid under the Certificate Insurance Policy into the Certificate Insurance
Policy Payments Account and distribute such amount only for the purposes of
making the payments to Holders of the Class III-A-1, Class III-A-2, Class
III-A-3, Class III-A-4 and Class III-A-5 Certificates in respect of the
Insured Payment for which the related claim was made under the Certificate
Insurance Policy. Such amounts shall be allocated by the Trust Administrator
to Holders of Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 and
Class III-A-5 Certificates affected by such shortfalls in the same manner as
principal and interest payments are to be allocated with respect to such
Certificates pursuant to Section 4.01. It shall not be necessary for such
payments to be made by checks or wire transfers separated from the checks or
wire transfers used to make regular payments hereunder with funds withdrawn
from the Certificate Account. However, any payments made on the Class III-A-1,
Class III-A-2, Class III-A-3, Class III-A-4 and Class III-A-5 Certificates
from funds in the Certificate Insurance Policy Payments Account shall be noted
as provided in subsection (e) below. Funds held in the Certificate Insurance
Policy Payments Account shall not be invested by the Trust Administrator or
the Trustee.
(g) Any funds received from FSA for deposit into the Certificate
Insurance Policy Payments Account pursuant to the Certificate Insurance Policy
in respect of a Distribution Date or otherwise as a result of any claim under
the Certificate Insurance Policy shall be applied by the Trust Administrator
directly to the payment in full (i) of the Insured Payment due on such
Distribution Date on the Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 and Class III-A-5 Certificates, or (ii) of other amounts payable under
the Certificate Insurance Policy. Funds received by the Trust Administrator as
a result of any claim under the Certificate Insurance Policy shall be used
solely for payment to the Holders of the Class III-A-1, Class III-A-2, Class
III-A-3, Class III-A-4 and Class III-A-5 Certificates and may not be applied
for any other purpose, including, without limitation, satisfaction of any
costs, expenses or liabilities of the Trustee, the Trust Administrator, any
Servicer or the Trust Fund. Any funds (other than funds deposited therein in
respect of a Preference Amount payable under the Certificate Insurance Policy)
remaining in the Certificate Insurance Policy Payments Account on the first
Business Day after each Distribution Date shall be remitted promptly to FSA
pursuant to the written instruction of FSA.
(h) The Trust Administrator shall keep complete and accurate records
in respect of (i) all funds remitted to it by FSA and deposited into the
Certificate Insurance Policy Payments Account and (ii) the allocation of such
funds to payments of interest on and principal in respect of any Class
III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 or Class III-A-5
Certificates. FSA shall have the right to inspect such records at reasonable
times during normal business hours upon three Business Days' prior notice to
the Trust Administrator.
(i) The Trust Administrator acknowledges, and each Holder of a Class
III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 or Class III-A-5
Certificate by its acceptance of the Class III-A-1, Class III-A-2, Class
III-A-3, Class III-A-4 or Class III-A-5 Certificate agrees, that, without the
need for any further action on the part of FSA or the Trust Administrator, to
the extent FSA makes payments, directly or indirectly, on account of principal
of or interest on any Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 or Class III-A-5 Certificates, FSA will be fully subrogated to the
rights of the Holders of such Class III-A-1, Class III-A-2, Class III-A-3,
Class III-A-4 or Class III-A-5 Certificates to receive such principal and
interest from the Trust Fund. The Holders of the Class III-A-1, Class III-A-2,
Class III-A-3, Class III-A-4 or Class III-A-5 Certificates, by acceptance of
the Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 or Class
III-A-5 Certificates, assign their rights as Holders of the Class III-A-1,
Class III-A-2, Class III-A-3, Class III-A-4 or Class III-A-5 Certificates to
the extent of FSA's interest with respect to amounts paid under the
Certificate Insurance Policy. Anything herein to the contrary notwithstanding,
solely for purposes of determining FSA's rights, as applicable, as subrogee
for payments distributable pursuant to Section 4.01, any payment with respect
to distributions to the Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 or Class III-A-5 Certificates which is made with funds received
pursuant to the terms of the Certificate Insurance Policy, shall not be
considered payment of the Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 or Class III-A-5 Certificates from the Trust Fund and shall not result
in the distribution or the provision for the distribution in reduction of the
Class Principal Balance of the Class III-A-1, Class III-A-2, Class III-A-3,
Class III-A-4 or Class III-A-5 Certificates except to the extent such payment
has been reimbursed to FSA pursuant to the terms hereof.
(j) Upon a Responsible Officer of the Trustee or the Trust
Administrator becoming aware of the occurrence of an Event of Default, the
Trustee or the Trust Administrator, as applicable, shall promptly notify FSA
of such Event of Default.
(k) The Trustee or the Trust Administrator shall promptly notify FSA
of either of the following as to which a Responsible Officer of the Trustee or
the Trust Administrator, as applicable, has actual knowledge: (A) the
commencement of any proceeding by or against the Depositor commenced under the
United States bankruptcy code or any other applicable bankruptcy, insolvency,
receivership, rehabilitation or similar law (an "Insolvency Proceeding") and
(B) the making of any claim in connection with any Insolvency Proceeding
seeking the avoidance as a preferential transfer (a "Preference Claim") of any
distribution made with respect to the Class III-A-1, Class III-A-2, Class
III-A-3, Class III-A-4 or Class III-A-5 Certificates as to which it has actual
knowledge. Each Holder of a Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 or Class III-A-5 Certificate, by its purchase of Class III-A-1, Class
III-A-2, Class III-A-3, Class III-A-4 or Class III-A-5 Certificates, and the
Trust Administrator hereby agrees that FSA (so long as no FSA Default exists)
may at any time during the continuation of any proceeding relating to a
Preference Claim direct all matters relating to such Preference Claim,
including, without limitation, (i) the direction of any appeal of any order
relating to any Preference Claim and (ii) the posting of any surety,
supersedeas or performance bond pending any such appeal. In addition and
without limitation of the foregoing, FSA shall be subrogated to the rights of
the Trust Administrator, the Trustee and each Holder of a Class III-A-1, Class
III-A-2, Class III-A-3, Class III-A-4 or Class III-A-5 Certificate in the
conduct of any Preference Claim, including, without limitation, all rights of
any party to an adversary proceeding action with respect to any court order
issued in connection with any such Preference Claim.
(l) Each Servicer shall designate at least one FSA Contact Person
who shall be available to FSA to provide reasonable access to information
regarding the Mortgage Loans. The initial FSA Contact Persons are the
Servicing Officers.
(m) The Trust Administrator shall surrender the Certificate
Insurance Policy to FSA for cancellation upon the reduction of the Class
Principal Balance of the Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 and Class III-A-5 Certificates to zero.
(n) The Trust Administrator shall send to FSA the reports prepared
pursuant to Sections 3.16 and 3.17 and the statements prepared pursuant to
Section 4.04, as well as any other statements or communications sent to
Holders of the Class A Certificates, in each case at the same time such
reports, statements and communications are otherwise sent.
(o) For so long as there is no continuing default by FSA under its
obligations under the Certificate Insurance Policy (an "FSA Default"), each
Holder of a Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 or
Class III-A-5 Certificate agrees that FSA shall be treated by the Depositor,
each Seller, each Servicer, the Trust Administrator and the Trustee as if FSA
were the Holder of all of the Class III-A-1, Class III-A-2, Class III-A-3,
Class III-A-4 and Class III-A-5 Certificates for the purpose (and solely for
the purpose) of the giving of any consent, the making of any direction or the
exercise of any voting or other control rights otherwise given to the Holders
of the Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 and Class
III-A-5 Certificates hereunder and the holders of the Class III-A-1, Class
III-A-2, Class III-A-3, Class III-A-4 and Class III-A-5 Certificates shall
only exercise such rights with the prior written consent of FSA.
(p) With respect to this Section 4.03, (i) the terms "Receipt" and
"Received" shall mean actual delivery to FSA and its Fiscal Agent, if any,
prior to 12:00 noon, New York City time, on a Business Day; delivery either on
a day that is not a Business Day or after 12:00 noon, New York City time,
shall be deemed to be Receipt on the next succeeding Business Day and (ii)
"Business Day" means any day other than (A) a Saturday or Sunday or (B) a day
on which FSA or banking institutions in the City of New York, New York, or the
city in which the Corporate Trust Office of the Trustee or the Trust
Administrator is located, are authorized or obligated by law or executive
order to be closed. If any notice or certificate given under the Certificate
Insurance Policy by the Trust Administrator is not in proper form or is not
properly completed, executed or delivered, it shall be deemed not to have been
Received. FSA or its Fiscal Agent, if any, shall promptly so advise the Trust
Administrator and the Trust Administrator may submit an amended notice.
(q) All notices, statements, reports, certificates or opinions
required by this Agreement to be sent to the Trustee, the Rating Agencies or
the Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4 and Class
III-A-5 Certificateholders shall also be sent at such time to FSA at FSA
Security Assurance Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(r) FSA shall be an express third party beneficiary of this
Agreement for the purpose of enforcing the provisions hereof to the extent of
FSA's rights explicitly specified herein as if a party hereto.
(s) All references herein to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the Certificate Insurance Policy.
(t) The Trustee, Trust Administrator and each Servicer shall
cooperate with any reasonable request by FSA to preserve or enforce the rights
granted to FSA hereunder.
(u) Any amendment to this Agreement shall require the prior
written consent of FSA if such amendment could materially adversely affect the
interest of FSA or of the Class III-A-1, Class III-A-2, Class III-A-3, Class
III-A-4 and Class III-A-5 Certificateholders.
SECTION 4.04 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trust Administrator
shall prepare and cause to be made available to each Certificateholder, each
Servicer, the Trustee, the Depositor and each Rating Agency, a statement
setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, indicating
the portion thereof attributable to Scheduled Payments and Principal
Prepayments;
(ii) the amount thereof allocable to interest, indicating
the portion thereof attributable to any Carryforward Interest
included in such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be
distributable to such Holders if there were sufficient funds
available therefor, the amount of the shortfall and the allocation
thereof as between principal and interest;
(iv) the Class Principal Balance of each Class of
Certificates after giving effect to the distribution of principal on
such Distribution Date;
(v) the Aggregate Loan Balance and Aggregate Loan Group
Balance for each Loan Group, in each case, for the following
Distribution Date;
(vi) the amount of the Servicing Fees and MGIC PMI Fees,
if applicable, with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of
Certificates with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution
on such Distribution Date and the aggregate amount of Advances
outstanding as of the close of business on such Distribution Date;
(ix) the number and aggregate principal amounts of
Mortgage Loans in foreclosure or delinquent (with a notation
indicating which Mortgage Loans, if any, are in foreclosure) (1) 31
to 60 days, (2) 61 to 90 days and (4) 91 or more days, as of the
close of business on the last day of the calendar month preceding
such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage
Loans with respect to which Prepayment Penalties were collected and
the aggregate amount of such Prepayment Penalties;
(xi) the Rolling Three Month Delinquency Rate for such
Distribution Date;
(xii) the total number and principal balance of any REO
Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xiii) the aggregate amount of Realized Losses incurred
during the preceding calendar month and aggregate Realized Losses
through such Distribution Date;
(xiv) the weighted average term to maturity of the
Mortgage Loans as of the close of business on the last day of the
calendar month preceding such Distribution Date; and
(xv) the number and principal amount of claims submitted
and claims paid under the MGIC PMI Policy during the preceding
calendar month and the number and principal amount of claims
submitted and claims paid under the MGIC PMI Policy through such
Distribution Date.
The Trust Administrator's responsibility for disbursing the above
information to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from each Servicer which
shall be provided as required in Section 4.05.
On each Distribution Date, the Trust Administrator shall provide
Bloomberg Financial Markets, L.P. ("Bloomberg") Cusip Level Factors for each
Class of Offered Certificates as of such Distribution Date, using a format and
media mutually acceptable to the Trust Administrator and Bloomberg. In
connection with providing the information specified in this Section 4.04 to
Bloomberg, the Trust Administrator and any director, officer, employee or
agent of the Trust Administrator shall be indemnified and held harmless by
DLJMC, to the extent, in the manner and subject to the limitations provided in
Section 9.05. The Trust Administrator will also make the monthly statements to
Certificateholders available each month to each party referred to in Section
4.04(a) via the Trust Administrator's website. The Trust Administrator's
website can be accessed at xxxx://xxx.XXXxxxxx.xxx/xxxxxx or at such other
site as the Trust Administrator may designate from time to time. Persons that
are unable to use the above website are entitled to have a paper copy mailed
to them via first class mail by calling the Trust Administrator at
000-000-0000. The Trust Administrator shall have the right to change the way
the reports referred to in this Section are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
to the Certificateholders. The Trust Administrator shall provide timely and
adequate notification to all above parties and to the Certificateholders
regarding any such change. The Trust Administrator may fully rely upon and
shall have no liability with respect to information provided by any Servicer.
(b) Upon request, within a reasonable period of time after the end
of each calendar year, the Trust Administrator shall cause to be furnished to
each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i), (a)(ii)
and (a)(vi) of this Section 4.04 aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trust Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trust Administrator pursuant to any requirements of the Code
as from time to time in effect.
SECTION 4.05 Servicer to Cooperate.
Each Servicer shall provide to the Trust Administrator the
information set forth in Exhibit F in such form as the Trust Administrator
shall reasonably request with respect to each Mortgage Loan serviced by such
Servicer no later than twelve noon seven days before the related Distribution
Date necessary to enable the Trust Administrator to calculate the amounts to
be distributed to each class of certificates and otherwise perform its
distribution, accounting and reporting requirements hereunder.
SECTION 4.06 Cross-Collateralization; Adjustments to Available Funds
(a) On each Distribution Date prior to the Senior Credit
Support Depletion Date, but after the date on which the aggregate
Class Principal Balance of Senior Certificates of a Certificate
Group has been reduced to zero, the Trust Administrator shall
distribute the principal portion of Available Distribution Amount on
the Mortgage Loans relating to such Senior Certificates that will
have been paid in full, to the holders of the Senior Certificates of
the other Certificate Groups, pro rata, based on Class Principal
Balances, provided, however, that the Trust Administrator shall not
make such distribution on such Distribution Date if (a) the
Subordinate Pool Percentage for such Distribution Date is greater
than or equal to 200% of such Subordinate Pool Percentage as of the
Closing Date and (b) the average outstanding principal balance of
the Mortgage Loans in each Loan Group delinquent 60 days or more
over the last six months, as a percentage of the related Subordinate
Component Balance, is less than 50%.
(b) If on any Distribution Date the Class Principal
Balance of Senior Certificates in a Certificate Group is greater
than the aggregate Stated Principal Balance of the Mortgage Loans in
the related Loan Group (the "Undercollateralized Group"), then the
Trust Administrator shall reduce the Available Distribution Amount
of the other Loan Groups that are not undercollateralized (the
"Overcollateralized Groups"), as follows:
(1) to add to the Available Distribution Amount of
each Undercollateralized Group an amount equal
to the lesser of (a) one month's interest on the
Principal Transfer Amount of each
Undercollateralized Group at the Pass-Through
Rate applicable to the Undercollateralized
Group(s) and (b) Available Distribution Amount
of the Overcollateralized Group(s) remaining
after making distributions to the Certificates
of the Overcollateralized Group(s) on such
Distribution Date pursuant to Section 4.01; and
(2) to the Senior Certificates of each
Undercollateralized Group, to the extent of the
principal portion of Available Distribution
Amount of the Overcollateralized Group(s)
remaining after making distributions to the
Senior Certificates of the Overcollateralized
Group(s) on such Distribution Date pursuant to
Section 4.01, until the Class Principal Balance
of the Senior Certificates of such
Undercollateralized Group(s) equals the
aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group(s), any
shortfall of such Available Distribution Amount
to be allocated among such Undercollateralized
Group(s), pro rata, based upon the respective
Principal Transfer Amounts.
(b) If more than one Overcollateralized Group exists on any
Distribution Date, reductions in the Available Funds of such groups to make
the payments required to be made pursuant to Section 4.06(b) on such
Distribution Date shall be made pro rata, based on the amount of payments
required to be made to the Undercollateralized Group(s).
SECTION 4.07 Distributions in Reduction of the Class III-A-5
Certificates.
(a) Except as provided in subclauses (d) and (f) below, on each
Distribution Date on which distributions in reduction of the Class Principal
Balance of the Class III-A-5 Certificates are made, such distributions will be
made in the following priority:
(i) any request by the personal representative of a
Deceased Holder or by a surviving tenant by the entirety, by a
surviving joint tenant or by a surviving tenant in common or
other Person empowered to act on behalf of such Deceased Holder
upon his or her death, in an amount up to but not exceeding
$100,000 per request; and
(ii) any request by a Living Holder, in an amount up to
but not exceeding $10,000 per request.
Thereafter, distributions will be made as provided in clauses (i)
and (ii) above up to a second $100,000 and $10,000 per request, respectively.
This sequence of priorities will be repeated for each request for principal
distributions made by the Beneficial Holders of the Class III-A-5 Certificates
until all such requests have been honored.
Requests for distributions in reduction of the Certificate Balances
of the Class III-A-5 Certificates presented on behalf of the related Deceased
Holders in accordance with the provisions of clause (i) above will be accepted
in the order of their receipt by DTC. Requests for distributions in reduction
of the Certificate Balances of the Class III-A-5 Certificates presented in
accordance with the provisions of clause (ii) above will be accepted in the
order of priority established by the random lot procedures of DTC after all
requests with respect to such Certificates presented in accordance with clause
(i) have been honored. All requests for distributions in reduction of the
Certificate Balances of the Class III-A-5 Certificates with respect to any
Distribution Date shall be made in accordance with Section 4.07(c) below and
must be received by DTC and forwarded to, and received by, the Trust
Administrator no later than the close of business on the related Record Date.
Requests for distributions which are received by DTC and forwarded to the
Trust Administrator after the related Record Date and requests, in either
case, for distributions timely received but not accepted with respect to any
Distribution Date, will be treated as requests for distributions in reduction
of the Certificate Balances of the Class III-A-5 Certificates on the next
succeeding Distribution Date, and each succeeding Distribution Date
thereafter, until each such request is accepted or is withdrawn as provided in
Section 4.07(c). Such requests as are not so withdrawn shall retain their
order of priority without the need for any further action on the part of the
appropriate Beneficial Holder of the Class III-A-5 Certificate, all in
accordance with the procedures of DTC and the Trust Administrator. Upon the
transfer of beneficial ownership of any Class III-A-5 Certificate, any
distribution request previously submitted with respect to such Class III-A-5
Certificate will be deemed to have been withdrawn only upon the receipt by the
Trust Administrator of notification of such withdrawal using a form required
by DTC.
Distributions in reduction of the Certificate Balances of the Class
III-A-5 Certificates will be applied, in the aggregate, to the Class III-A-5
Certificates in an amount equal to the portion of the Available Distribution
Amount distributable to the Class III-A-5 Certificates pursuant to Section
4.01II, plus any amounts available for distribution from the Class III-A-5
Rounding Account pursuant to Section 4.07(e), provided that the aggregate
distribution in reduction of the Class Principal Balance of a Class III-A-5
Certificate on any Distribution Date is made in an integral multiple of
$1,000.
(b) A "Deceased Holder" is a Beneficial Holder of a Class III-A-5
Certificate who was living at the time such interest was acquired and whose
authorized personal representative, surviving tenant by the entirety,
surviving joint tenant or surviving tenant in common or other person empowered
to act on behalf of such Beneficial Holder upon his or her death, causes to be
furnished to the Trust Administrator a certified copy of the death certificate
of such Beneficial Holder and any additional evidence of death required by and
satisfactory to the Trust Administrator and any tax waivers requested by the
Trust Administrator. The Class III-A-5 Certificates beneficially owned by
tenants by the entirety, joint tenants or tenants in common will be considered
to be beneficially owned by a single owner. The death of a tenant by the
entirety, joint tenant or tenant in common will be deemed to be the death of
the Beneficial Holder, and the Class III-A-5 Certificates so beneficially
owned will be eligible for priority with respect to distributions in reduction
of the Class Principal Balance of the Class III-A-5 Certificates, subject to
the limitations stated above. The Class III-A-5 Certificates beneficially
owned by a trust will be considered to be beneficially owned by each
beneficiary of the trust to the extent of such beneficiary's beneficial
interest therein, but in no event will a trust's beneficiaries collectively be
deemed to be Beneficial Holders of a number of Individual Class III-A-5
Certificates greater than the number of Individual Class III-A-5 Certificates
of which such trust is the beneficial owner. The death of a beneficiary of a
trust will be deemed to be the death of a Beneficial Holder of the Class
III-A-5 Certificates beneficially owned by the trust to the extent of such
beneficiary's beneficial interest in such trust. The death of an individual
who was a tenant by the entirety, joint tenant or tenant in common in a
tenancy which is the beneficiary of a trust will be deemed to be the death of
the beneficiary of the trust. The death of a person who, during his or her
lifetime, was entitled to substantially all of the beneficial ownership
interests in the Class III-A-5 Certificates will be deemed to be the death of
the Beneficial Holder of such Class III-A-5 Certificates regardless of the
registration of ownership of such Class III-A-5 Certificates, if such
beneficial interest can be established to the satisfaction of the Trust
Administrator. Such beneficial interest will be deemed to exist in typical
cases of street name or nominee ownership, ownership by a trustee, ownership
under the Uniform Gifts to Minors Act and community property or other joint
ownership arrangements between a husband and wife. Beneficial interests shall
include the power to sell, transfer or otherwise dispose of a Class III-A-5
Certificate and the right to receive the proceeds therefrom, as well as
interest and distributions in reduction of the Certificate Balances of the
Class III-A-5 Certificates payable with respect thereto. The Trust
Administrator shall not be under any duty to determine independently the
occurrence of the death of any deceased Beneficial Holder. The Trust
Administrator may rely entirely upon documentation delivered to it pursuant to
Section 4.07(a) in establishing the eligibility of any Beneficial Holder to
receive the priority accorded Deceased Holders in Section 4.07(a).
(c) Requests for distributions in reduction of the Certificate
Balance of a Class III-A-5 Certificate must be made by delivering a written
request therefor to a Participant or Indirect Participant that maintains the
account evidencing the Beneficial Holder's interest in such Class III-A-5
Certificate. Such Participant or Indirect Participant should in turn make the
request of DTC (or, in the case of an Indirect Participant, such Indirect
Participant must notify the related Participant of such request, which
Participant should make the request of DTC) on a form required by DTC and
provided to the Participant. Upon receipt of such request, DTC will date and
time stamp such request and forward such request to the Trust Administrator.
DTC may establish such procedures as it deems fair and equitable to establish
the order of receipt or requests for such distributions received by it on the
same day. The Trust Administrator shall not be liable for any delay in
delivery of requests for distributions or withdrawals of such requests by DTC,
a Participant or any Indirect Participant.
In the event any requests for distributions in reduction of the
Certificate Balance of a Class III-A-5 Certificate are rejected by the Trust
Administrator for failure to comply with the requirements of this Section
4.07, the Trust Administrator shall return such requests to the appropriate
Participant with a copy to DTC with an explanation as to the reason for such
rejection.
The Trust Administrator shall maintain a list of those Participants
representing the Beneficial Holders of the Class III-A-5 Certificates that
have submitted requests for distributions in reduction of the Certificate
Balances of such Class III-A-5 Certificates, together with the order of
receipt and the amounts of such requests. The Trust Administrator shall notify
DTC and the appropriate Participants as to which requests should be honored on
each Distribution Date. Requests shall be honored by DTC in accordance with
the procedures, and subject to the priorities and limitations, described in
this Section 4.07. The exact procedures to be followed by the Trust
Administrator and DTC for purposes of determining such priorities and
limitations shall be those established from time to time by the Trust
Administrator or DTC, as the case may be. The decisions of the Trust
Administrator and DTC concerning such matters shall be final and binding on
all affected Persons.
Payments in reduction of the Certificate Balance of a Class III-A-5
Certificate shall be made on the applicable Distribution Date and the
Certificate Balances as to which such payments are made shall cease to bear
interest after the last day of the month preceding the month in which such
Distribution Date occurs.
Any Beneficial Holder of a Class III-A-5 Certificate which has
requested a distribution may withdraw its request by so notifying in writing
the Participant or Indirect Participant that maintains such Beneficial
Holder's account. In the event that such account is maintained by an Indirect
Participant, such Indirect Participant must notify the related Participant
which in turn must forward the withdrawal of such request, on a form required
by DTC, to the Trust Administrator. If such notice of withdrawal of a request
for distribution has not been received by DTC and forwarded to the Trust
Administrator on or before the Record Date for the next Distribution Date, the
previously made request for distribution will be irrevocable with respect to
the making of distributions in reduction of the Certificate Balance of such
Class III-A-5 Certificate on such Distribution Date.
(d) To the extent, if any, that distributions in reduction of the
Class Principal Balance of the Class III-A-5 Certificates on a Distribution
Date exceed the aggregate Certificate Balances of the Class III-A-5
Certificates with respect to which distribution requests have been received by
the related Record Date, as provided in Section 4.07(a) above, distributions
in reduction of the Class Principal Balance of the Class III-A-5 Certificates
will be made by mandatory distributions in reduction thereof. The Trust
Administrator shall notify DTC of the aggregate amount of the mandatory
distribution in reduction of the Class Principal Balance of the Class III-A-5
Certificates to be made on the next Distribution Date. DTC shall then allocate
such aggregate amount among its Participants on a random lot basis. Each
Participant and, in turn, each Indirect Participant, will then select, in
accordance with its own procedures, Individual Class III-A-5 Certificates from
among those held in its accounts to receive mandatory distributions in
reduction of the Class Principal Balance of the Class III-A-5 Certificates,
such that the total amount so selected is equal to the aggregate amount of
such mandatory distributions allocated to such Participant by DTC and to such
Indirect Participant by its related Participant, as the case may be.
Participants and Indirect Participants which hold the Class III-A-5
Certificates selected for mandatory distributions in reduction of the Class
Principal Balance are required to provide notice of such mandatory
distributions to the affected Beneficial Holders.
(e) On the Closing Date, the Class III-A-5 Rounding Account shall be
established with the Trust Administrator and Credit Suisse First Boston
Corporation shall cause to be initially deposited the sum of $999.99 in the
Class III-A-5 Rounding Account. On each Distribution Date on which a
distribution is made in reduction of the Class Principal Balance of the Class
III-A-5 Certificates, funds on deposit in the Class III-A-5 Rounding Account
shall be, to the extent needed, withdrawn by the Trust Administrator and
applied to round upward to an integral multiple of $1,000 the aggregate
distribution in reduction of the Class Principal Balance to be made on the
Class III-A-5 Certificates. Rounding of such distribution on the Class III-A-5
Certificates shall be accomplished, on the first such Distribution Date, by
withdrawing from the Class III-A-5 Rounding Account the amount of funds, if
any, needed to round the amount otherwise available for such distribution in
reduction of the Class Principal Balance of the Class III-A-5 Certificates
upward to the next integral multiple of $1,000. On each succeeding
Distribution Date on which distributions in reduction of the Class Principal
Balance of the Class III-A-5 Certificates are to be made, the aggregate amount
of such distributions allocable to a Class III-A-5 Certificate shall be
applied first to repay any funds withdrawn from the Class III-A-5 Rounding
Account and not previously repaid, and then the remainder of such allocable
amount, if any, shall be similarly rounded upward and applied as distributions
in reduction of the Class Principal Balance of the Class III-A-5 Certificates;
this process shall continue on succeeding Distribution Dates until the Class
Principal Balance of the Class III-A-5 Certificates has been reduced to zero.
The Class III-A-5 Rounding Account shall be an "outside reserve fund" under
the REMIC Provisions that is beneficially owned for all federal income tax
purposes by Credit Suisse First Boston Corporation. Credit Suisse First Boston
Corporation shall report all income, gain, deduction or loss with respect
thereto.
Notwithstanding anything herein to the contrary, on the Distribution
Date on which distributions in reduction of the Class Principal Balance of the
Class III-A-5 Certificates will reduce the Class Principal Balance thereof to
zero or in the event that distributions in reduction of the Class Principal
Balance of the Class III-A-5 Certificates are made in accordance with the
provisions set forth in Section 4.07(f), an amount equal to the difference
between $1,000 and the sum then held in the Class III-A-5 Rounding Account
shall be paid from the Available Distribution Amount for such Distribution
Date to the Class III-A-5 Rounding Account. Any funds then on deposit in a
Rounding Account shall be distributed to Credit Suisse First Boston
Corporation.
(f) Notwithstanding any provisions herein to the contrary, on each
Distribution Date following the first Distribution Date on or after the Senior
Credit Support Depletion Date, distributions in reduction of the Class
Principal Balances of the Class III-A-5 Certificates will be made among the
Holders of the related Class of the Class III-A-5 Certificates, pro rata,
based on Certificate Balances, and will not be made in integral multiples of
$1,000 or pursuant to requested distributions or mandatory distributions by
random lot.
(g) In the event that Definitive Certificates representing the Class
III-A-5 Certificates are issued pursuant to Section 6.09, an amendment to this
Agreement, which may be approved without the consent of any
Certificateholders, shall establish procedures relating to the manner in which
distributions in reduction of the Class Principal Balances of the Class
III-A-5 Certificates are to be made; provided that such procedures shall be
consistent, to the extent practicable and customary for certificates similar
to the Class III-A-5 Certificates, with the provisions of this Section 4.07.
ARTICLE V
ADVANCES BY A SERVICER
SECTION 5.01 Advances by a Servicer.
Each Servicer shall deposit in the Collection Account an amount
equal to all Scheduled Payments (with interest at the Mortgage Rate less the
Servicing Fee Rate) which were due on the related Mortgage Loans during the
applicable Collection Period and which were delinquent at the close of
business on the immediately preceding Determination Date; provided, however,
that with respect to any Balloon Loan that is delinquent on its maturity date,
the related Servicer will not be required to advance the related balloon
payment but will be required to continue to make advances in accordance with
this Section 5.01 with respect to such Balloon Loan in an amount equal to an
assumed scheduled payment that would otherwise be due based on the original
amortization schedule for that Mortgage Loan plus one month's interest on the
outstanding principal balance at the applicable Mortgage Rate less the
applicable Servicing Fee Rate. Each Servicer's obligation to make such
Advances as to any related Mortgage Loan will continue through the last
Scheduled Payment due prior to the payment in full of such Mortgage Loan, or
through the date that the related Mortgaged Property has, in the judgment of
such Servicer, been completely liquidated.
Each Servicer shall be obligated to make Advances in accordance with
the provisions of this Agreement; provided, however, that such obligation with
respect to any related Mortgage Loan shall cease if a Servicer determines, in
its reasonable opinion, that Advances with respect to such Mortgage Loan are
Nonrecoverable Advances. In the event that such Servicer determines that any
such advances are Nonrecoverable Advances, such Servicer shall provide the
Trust Administrator and the Trustee with a certificate signed by a Servicing
Officer evidencing such determination.
If an Advance is required to be made hereunder, the related Servicer
shall on the Business Day immediately preceding the 7th day, with respect to
CMMC, or the 3rd day, with respect to WMMSC, preceding the Distribution Date
immediately following the related Determination Date either (i) deposit in the
Collection Account from its own funds an amount equal to such Advance, (ii)
cause to be made an appropriate entry in the records of the Collection Account
that funds in such account being held for future distribution or withdrawal
have been, as permitted by this Section 5.01, used by such Servicer to make
such Advance or (iii) make Advances in the form of any combination of clauses
(i) and (ii) aggregating the amount of such Advance. Any such funds being held
in a Collection Account for future distribution and so used shall be replaced
by such Servicer from its own funds by deposit in such Collection Account on
or before any future Distribution Date in which such funds would be due.
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.
The Certificates shall be in substantially the forms set forth in
Exhibits A, B, C, D and E hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trust Administrator or
the Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any
of the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trust Administrator by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time when such signatures were affixed, authorized to sign on behalf of the
Trust Administrator shall bind the Trust Administrator, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication executed by the
Trust Administrator by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Trust Administrator shall maintain, or cause to be
maintained, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trust Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. Upon surrender for registration of transfer of any
Certificate, the Trust Administrator shall execute, authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Certificates in like aggregate interest and of the same Class.
(b) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of authorized denominations and the same
aggregate interest in the Trust Fund and of the same Class, upon surrender of
the Certificates to be exchanged at the office or agency of the Trust
Administrator set forth in Section 6.06. Whenever any Certificates are so
surrendered for exchange, the Trust Administrator shall execute, authenticate
and deliver the Certificates which the Certificateholder making the exchange
is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by the Holder thereof or his attorney duly authorized in writing.
(c) No service charge to the Certificateholders shall be made for
any registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
(d) All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trust
Administrator in accordance with the Trust Administrator's customary
procedures.
(e) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. Except in connection with any transfer of a
Private Certificate by the Depositor to any affiliate, in the event that a
transfer is to be made in reliance upon an exemption from the 1933 Act and
such laws, in order to assure compliance with the 1933 Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer in substantially
the form set forth in Exhibit L (the "Transferor Certificate") and (i) deliver
a letter in substantially the form of either Exhibit M-1 (the "Investment
Letter") or Exhibit M-2 (the "Rule 144A Letter") or (ii) there shall be
delivered to the Trust Administrator at the expense of the transferor an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from the 1933 Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the 1933 Act pursuant to the registration
exemption provided by Rule 144A. The Trust Administrator shall cooperate with
the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the Trust Administrator, the Depositor, each Seller and each Servicer against
any liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws.
(f) No transfer of an ERISA-Restricted Certificate shall be made to
any employee benefit or other plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Code, to a trustee or other person acting on behalf of any such plan, or to
any other person using "plan assets" to effect such acquisition, unless the
prospective transferee of a Certificate provides the Trust Administrator with
(i) in the case of an ERISA-Restricted Certificate that has been the subject
of an ERISA-Qualifying Underwriting, a certification as set forth in item (d)
of Exhibit M-1 or M-2 or item 15 of Exhibit N and in the case of any other
ERISA-Restricted Certificate, a certification as set forth in item d(i) of
Exhibit M-1 or M-2 or item 15(a) of Exhibit N; or (ii) an Opinion of Counsel
which establishes to the reasonable satisfaction of the Trustee and the Trust
Administrator that the purchase and holding of an ERISA-Restricted Certificate
by, on behalf of or with "plan assets" of such plan is permissible under
applicable local law, would not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and would not subject the Depositor, the Trustee, the Trust Administrator, the
Servicers or the Special Servicer to any obligation or liability (including
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement or any other liability. The Trust Administrator
shall require, where applicable, that such prospective transferee certify to
the Trust Administrator in writing the facts establishing that such transferee
is not such a plan and is not acting on behalf of or using "plan assets" of
any such plan to effect such acquisition.
(g) Additional restrictions on transfers of the Class AR
Certificates to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership
interest in a Class AR Certificate shall be deemed by the acceptance
or acquisition of such ownership interest to have agreed to be bound
by the following provisions and to have irrevocably authorized the
Trust Administrator or its designee under clause (iii)(A) below to
deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to
execute all instruments of transfer and to do all other things
necessary in connection with any such sale. The rights of each
Person acquiring any ownership interest in a Class AR Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any
ownership interest in a Class AR Certificate shall be other
than a Disqualified Organization and shall promptly notify the
Trust Administrator of any change or impending change in its
status as other than a Disqualified Organization.
(B) In connection with any proposed transfer of
any ownership interest in a Class AR Certificate to a U.S.
Person, the Trust Administrator shall require delivery to it,
and shall not register the transfer of a Class AR Certificate
until its receipt of (1) an affidavit and agreement (a
"Transferee Affidavit and Agreement" attached hereto as Exhibit
N) from the proposed transferee, in form and substance
satisfactory to the Trust Administrator, representing and
warranting, among other things, that it is not a non-U.S.
Person, that such transferee is other than a Disqualified
Organization, that it is not acquiring its ownership interest
in a Class AR Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person who is
not other than a Disqualified Organization, that for so long as
it retains its ownership interest in a Class AR Certificate, it
will endeavor to remain other than a Disqualified Organization,
and that it has reviewed the provisions of this Section 6.02(g)
and agrees to be bound by them, and (2) a certificate, attached
hereto as Exhibit O, from the Holder wishing to transfer a
Class AR Certificate, in form and substance satisfactory to the
Trust Administrator, representing and warranting, among other
things, that no purpose of the proposed transfer is to allow
such Holder to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transferee
Affidavit and Agreement by a proposed transferee under clause
(B) above, if the Trust Administrator has actual knowledge that
the proposed transferee is not other than a Disqualified
Organization, no transfer of an ownership interest in a Class
AR Certificate to such proposed transferee shall be effected.
(D) Each Person holding or acquiring any
ownership interest in a Class AR Certificate agrees, by holding
or acquiring such ownership interest, to require a Transferee
Affidavit and Agreement from the other Person to whom such
Person attempts to transfer its ownership interest and to
provide a certificate to the Trust Administrator in the form
attached hereto as Exhibit O.
(ii) The Trust Administrator shall register the transfer of any
Class AR Certificate only if it shall have received the Transferee
Affidavit and Agreement, a certificate of the Holder requesting such
transfer in the form attached hereto as Exhibit O and all of such
other documents as shall have been reasonably required by the Trust
Administrator as a condition to such registration.
(iii) (A) If any Disqualified Organization shall become a
Holder of a Class AR Certificate, then the last preceding Holder
that was other than a Disqualified Organization shall be restored,
to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such
transfer of such Class AR Certificate. If any non-U.S. Person shall
become a Holder of a Class AR Certificate, then the last preceding
Holder that is a U.S. Person shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of the transfer to such
non-U.S. Person of such Class AR Certificate. If a transfer of a
Class AR Certificate is disregarded pursuant to the provisions of
Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the
last preceding Holder that was other than a Disqualified
Organization shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date
of registration of such transfer of such Class AR Certificate. The
Trustee and the Trust Administrator shall be under no liability to
any Person for any registration of transfer of a Class AR
Certificate that is in fact not permitted by this Section 6.02(g) or
for making any payments due on such Certificate to the Holder
thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement.
(B) If any purported transferee of a Class AR
Certificate shall become a Holder of a Class AR Certificate in
violation of the restrictions in this Section 6.02(g) and to
the extent that the retroactive restoration of the rights of
the Holder of such Class AR Certificate as described in clause
(iii)(A) above shall be invalid, illegal or unenforceable, then
the Depositor shall have the right, without notice to the
Holder or any prior Holder of such Class AR Certificate, to
sell such Class AR Certificate to a purchaser selected by the
Depositor on such terms as the Depositor may choose. Such
purported transferee shall promptly endorse and deliver a Class
AR Certificate in accordance with the instructions of the
Depositor. Such purchaser may be the Depositor itself or any
affiliate of the Depositor. The proceeds of such sale, net of
the commissions (which may include commissions payable to the
Depositor or its affiliates), expenses and taxes due, if any,
shall be remitted by the Depositor to such purported
transferee. The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion of
the Depositor, and the Depositor shall not be liable to any
Person having an ownership interest or a purported ownership
interest in a Class AR Certificate as a result of its exercise
of such discretion.
(iv) Each Servicer, on behalf of the Trust Administrator, shall
make available, upon written request from the Trust Administrator,
all information reasonably available to it that is necessary to
compute any tax imposed (A) as a result of the transfer of an
ownership interest in a Class AR Certificate to any Person who is
not other than a Disqualified Organization, including the
information regarding "excess inclusions" of such Residual
Certificate required to be provided to the Internal Revenue Service
and certain Persons as described in Treasury Regulation Section
1.860D-1(b)(5), and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund,
partnership, trust, estate or organizations described in Section
1381 of the Code having as among its record holders at any time any
Person who is not other than a Disqualified Organization. Reasonable
compensation for providing such information may be required by the
Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior to
this Section (v) may be modified, added to or eliminated by the
Depositor, provided that there shall have been delivered to the
Trust Administrator the following:
(A) written notification from each Rating Agency
to the effect that the modification, addition to or elimination
of such provisions will not cause such Rating Agency to
downgrade its then-current rating of the Certificates; and
(B) a certificate of the Depositor stating that
the Depositor has received an Opinion of Counsel, in form and
substance satisfactory to the Depositor, to the effect that
such modification, addition to or elimination of such
provisions will not cause the Trust Fund to cease to qualify as
a REMIC and will not create a risk that (i) the Trust Fund may
be subject to an entity-level tax caused by the transfer of a
Class AR Certificate to a Person which is not other than a
Disqualified Organization or (2) a Certificateholder or another
Person will be subject to a REMIC-related tax caused by the
transfer of applicable Class AR Certificate to a Person which
is not other than a Disqualified Organization.
(vi) The following legend shall appear on each Class AR
Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT
TO THE Servicer AND THE TRUST ADMINISTRATOR THAT (1) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR
ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF
THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE
CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY
SECTION 511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED TO AS
A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH
AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR
OTHER DISPOSITION OF THIS CLASS AR CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH
HOLDER OF THE CLASS AR CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
(h) The Trust Administrator shall have no liability to the Trust
Fund arising from a transfer of any such Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 6.02;
provided, however, that the Trust Administrator shall not register the
transfer of any Class AR Certificate if it has actual knowledge that the
proposed transferee does not meet the qualifications of a permitted Holder of
a Class AR Certificate as set forth in this Section 6.02.
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trust
Administrator, or the Trust Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to each Servicer, the Trustee and the Trust Administrator
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee and the Trust
Administrator that such Certificate has been acquired by a bona fide
purchaser, the Trust Administrator shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and interest in the Trust Fund.
In connection with the issuance of any new Certificate under this Section
6.03, the Trust Administrator may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trust
Administrator) connected therewith. Any replacement Certificate issued
pursuant to this Section 6.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or
not the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, each Servicer, the Trust Administrator, and any agent of any
Servicer, the Trust Administrator may treat the person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other
purposes whatsoever, and none of the Servicers, the Trust Administrator, nor
any agent of a Servicer or the Trust Administrator shall be affected by any
notice to the contrary.
SECTION 6.05 Access to List of Certificateholders' Names and
Addresses.
(a) If three or more Certificateholders (i) request in writing from
the Trust Administrator a list of the names and addresses of
Certificateholders, (ii) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and (iii) provide a copy of the
communication which such Certificateholders propose to transmit, then the
Trust Administrator shall, within ten Business Days after the receipt of such
request, afford such Certificateholders access during normal business hours to
a current list of the Certificateholders. The expense of providing any such
information requested by a Certificateholder shall be borne by the
Certificateholders requesting such information and shall not be borne by the
Trust Administrator or the Trustee. Every Certificateholder, by receiving and
holding a Certificate, agrees that the Trustee and the Trust Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
(b) Each Servicer, so long as it is a servicer hereunder, the
Sellers and the Depositor shall have unlimited access to a list of the names
and addresses of the Certificateholders which list shall be provided by the
Trust Administrator promptly upon request.
SECTION 6.06 Maintenance of Office or Agency.
The Trust Administrator will maintain or cause to be maintained at
its expense an office or offices or agency or agencies in New York City where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trust Administrator in respect of the
Certificates and this Agreement may be served. The Trust Administrator
initially designates its Corporate Trust Office as its office for such
purpose. The Trust Administrator will give prompt written notice to the
Certificateholders of any change in the location of any such office or agency.
SECTION 6.07 Book-Entry Certificates.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder will receive a definitive
certificate representing such Beneficial Holder's interest in the
Certificates, except as provided in Section 6.09. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Beneficial Holders pursuant to Section 6.09:
(a) the provisions of this Section 6.07 shall be in full force and
effect with respect to the Book-Entry Certificates;
(b) the Depositor and the Trust Administrator may deal with the
Clearing Agency for all purposes with respect to the Book-Entry Certificates
(including the making of distributions on such Certificates) as the sole
Holder of such Certificates;
(c) to the extent that the provisions of this Section 6.07 conflict
with any other provisions of this Agreement, the provisions of this Section
6.07 shall control; and
(d) the rights of the Beneficial Holders of the Book-Entry
Certificates shall be exercised only through the Clearing Agency and the
Participants and shall be limited to those established by law and agreements
between such Beneficial Holders and the Clearing Agency and/or the
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.09, the initial
Clearing Agency will make book-entry transfers among the Participants and
receive and transmit distributions of principal and interest on the related
Book-Entry Certificates to such Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Book-Entry Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of such Certificates, such direction or consent may be
given by the Clearing Agency at the direction of Beneficial Holders owning
such Certificates evidencing the requisite percentage of principal amount of
such Certificates. The Clearing Agency may take conflicting actions with
respect to the Book-Entry Certificates to the extent that such actions are
taken on behalf of the Beneficial Holders.
SECTION 6.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of Book-Entry
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to the related Certificateholders pursuant
to Section 6.09, the Trust Administrator shall give all such notices and
communications specified herein to be given to Holders of the Book-Entry
Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 6.09 Definitive Certificates.
If (a) the Depositor advises the Trust Administrator in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities under the Depository Agreement with respect to the
Certificates and the Trust Administrator or the Depositor is unable to locate
a qualified successor, (b) the Depositor, at its option, advises the Trust
Administrator in writing that it elects to terminate the book-entry system
with respect to the Book-Entry Certificates through the Clearing Agency or (c)
after the occurrence of an Event of Default, Holders of Book-Entry
Certificates evidencing not less than 66K% of the aggregate Class Principal
Balance of the Book-Entry Certificates advise the Trust Administrator in
writing that the continuation of a book-entry system with respect to the such
Certificates through the Clearing Agency is no longer in the best interests of
the Holders of such Certificates with respect to the Book-Entry Certificates,
the Trust Administrator shall notify all Holders of such Certificates of the
occurrence of any such event and the availability of Definitive Certificates.
Upon surrender to the Trust Administrator of the such Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trust Administrator shall authenticate and
deliver the Definitive Certificates. Neither the Depositor nor the Trust
Administrator shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trust Administrator,
to the extent applicable with respect to such Definitive Certificates, and the
Trust Administrator shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
ARTICLE VII
THE DEPOSITOR, THE SELLERS AND THE SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor and the
Servicers.
The Depositor, any Seller and any 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 7.02 Merger or Consolidation of the Depositor, the Sellers,
or the Servicers.
Subject to the immediately succeeding paragraph, the Depositor, any
Seller and any Servicer will each do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights and
franchises (charter and statutory) and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor, any Seller or any Servicer may
be merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor, any Seller or any Servicer shall be a
party, or any Person succeeding to the business of the Depositor, any Seller
or any Servicer, shall be the successor of the Depositor, such Seller or such
Servicer, as the case may be, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person to any such Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, FNMA or FHLMC.
Notwithstanding anything else in this Section 7.02 or in Section
7.04 hereof to the contrary, a Servicer may assign its rights and delegate its
duties and obligations under this Agreement (except for the obligation of the
Servicer, in its capacity as a Seller, if applicable, to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including pursuant
to Section 2.01, 2.02 or 2.03 hereof, which shall remain with the related
Seller hereunder); provided, however, that such Servicer gives the Depositor,
the Trustee and the Trust Administrator notice of such assignment; and
provided further, that such purchaser or transferee accepting such assignment
and delegation shall be an institution that is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least
$15,000,000, and which is willing to service the Mortgage Loans and executes
and delivers to the Depositor, the Trustee and the Trust Administrator an
agreement accepting such delegation and assignment, which contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of such Servicer, with like effect as if
originally named as a party to this Agreement; and provided further, that each
of the Rating Agencies acknowledge that its rating of the Certificates in
effect immediately prior to such assignment will not be qualified or reduced
as a result of such assignment and delegation. In the case of any such
assignment and delegation, such Servicer shall be released from its
obligations under this Agreement (except as provided above), except that the
Servicer shall remain liable for all liabilities and obligations incurred by
it as Servicer hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the preceding sentence.
SECTION 7.03 Limitation on Liability of the Depositor, the Sellers,
and the Servicers and Others.
Neither the Depositor, any Servicer, any Seller nor any of the
directors, officers, employees or agents of the Depositor, any Servicer or any
Seller 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, any Servicer or any Seller against
any breach of representations or warranties made by it herein or protect the
Depositor, any Servicer or any Seller or any such director, officer, employee
or agent from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor, any Servicer, any Seller and any director, officer, employee or
agent of the Depositor, any Servicer or any Seller may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, any Servicer,
any Seller and any director, officer, employee or agent of the Depositor, any
Servicer or any Seller shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with
any legal action relating to this Agreement or the Certificates, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. None of the
Depositor, any Servicer or any Seller shall be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to their
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Depositor, any Servicer or
any Seller may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties
of the parties hereto and interests of the Trustee, the Trust Administrator
and the Certificateholders hereunder.
SECTION 7.04 Servicer Not to Resign; Transfer of Servicing.
(a) A Servicer shall not resign from the obligations and duties
hereby imposed on it except (i) upon appointment of a successor servicer and
receipt by the Trustee and the Trust Administrator of a letter from each
Rating Agency that such a resignation and appointment will not result in a
downgrading of the rating of any of the Certificates related to the applicable
Mortgage Loans, or (ii) upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination under clause
(ii) permitting the resignation of a Servicer shall be evidenced by an Opinion
of Counsel to such effect delivered to the Trustee and the Trust
Administrator. No such resignation shall become effective until the successor
servicer shall have assumed such Servicer's responsibilities, duties,
liabilities and obligations hereunder in accordance with Section 8.02 hereof.
(b) Notwithstanding the foregoing, DLJ Mortgage Capital, Inc. or its
transferee shall be entitled to request that a Servicer, other than WMMSC, or
CMMC to the extent that WMMSC subservices Mortgage Loans for CMMC, resign and
appoint a successor servicer; provided that such entity delivers to the
Trustee and the Trust Administrator the letter required in Section 7.04(a)(i)
above.
SECTION 7.05 Sellers and Servicers May Own Certificates.
Each of the Sellers and Servicers in its individual or any other
capacity may become the owner or pledgee of Certificates with the same rights
as it would have if it were not a Seller or the Servicer.
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default.
"Event of Default", wherever used herein, and as to each Servicer,
means any one of the following events (whatever reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) any failure by the Servicer to remit to the Certificateholders
or to the Trust Administrator any payment other than an Advance required to be
made by the Servicer under the terms of this Agreement, which failure shall
continue unremedied for a period of one Business Day after the date upon which
written notice of such failure shall have been given to the Servicer by the
Trust Administrator or the Depositor or to the Servicer and the Trust
Administrator by the Holders of Certificates having not less than 25% of the
Voting Rights evidenced by the Certificates; or
(b) any failure by the Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer contained in this Agreement (except as set forth in (c) and (g)
below) which failure (i) materially affects the rights of the
Certificateholders and (ii) shall continue unremedied for a period of 60 days
after the date on which written notice of such failure shall have been given
to the Servicer by the Trust Administrator or the Depositor, or to the
Servicer and the Trust Administrator by the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates; or
(c) if a representation or warranty set forth in Section 2.03 hereof
made solely in its capacity as a Servicer shall prove to be materially
incorrect as of the time made in any respect that materially and adversely
affects interests of the Certificateholders, and the circumstances or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 90 days after the date on which
written notice thereof shall have been given to the Servicer and Sellers by
the Trust Administrator for the benefit of the Certificateholders or by the
Depositor; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for
a period of 60 days; or
(e) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the
Servicer or all or substantially all of the property of the Servicer; or
(f) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(g) any failure of the Servicer to make any Advance in the manner
and at the time required to be made from its own funds pursuant to this
Agreement and after receipt of notice from the Trust Administrator pursuant to
Section 5.01, which failure continues unremedied after 5 p.m., New York City
time, on the Business Day immediately following the Servicer's receipt of such
notice.
If an Event of Default due to the actions or inaction of a Servicer
described in clauses (a) through (f) of this Section shall occur, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Trust Administrator shall at the direction of the Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates, by notice in writing to such Servicer (with a copy to the
Rating Agencies), terminate all of the rights and obligations of such Servicer
under this Agreement (other than rights to reimbursement for Advances and
Servicing Advances previously made, as provided in Section 3.08).
If an Event of Default described in clause (g) shall occur, the
Trust Administrator shall, prior to the next Distribution Date, terminate the
rights and obligations of the applicable Servicer hereunder and succeed to the
rights and obligations of such Servicer hereunder pursuant to Section 8.02,
including the obligation to make Advances on such succeeding Distribution Date
pursuant to the terms hereof. No Event of Default with respect to a Servicer
shall affect the rights or duties of any other Servicer, or constitute an
Event of Default as to any other Servicer.
SECTION 8.02 Trust Administrator to Act; Appointment of Successor.
On and after the time a Servicer receives a notice of termination
pursuant to Section 8.01 hereof or resigns pursuant to Section 7.04 hereof,
subject to the provisions of Section 3.06 hereof, the Trust Administrator
shall be the successor in all respects to such Servicer in its capacity as
servicer under this Agreement and with respect to the transactions set forth
or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on such Servicer by the terms
and provisions hereof, provided that the Trust Administrator shall not be
deemed to have made any representation or warranty as to any Mortgage Loan
made by any Servicer and shall not effect any repurchases or substitutions of
any Mortgage Loan. As compensation therefor, the Trust Administrator shall be
entitled to all funds relating to the Mortgage Loans that the related Servicer
would have been entitled to charge to the related Collection Account if such
Servicer had continued to act hereunder (except that the terminated or
resigning Servicer shall retain the right to be reimbursed for advances
(including, without limitation, Advances and Servicing Advances) theretofore
made by the Servicer with respect to which it would be entitled to be
reimbursed as provided in Section 3.08 if it had not been so terminated or
resigned as Servicer). Notwithstanding the foregoing, if the Trust
Administrator has become the successor to a Servicer in accordance with this
Section 8.02, the Trust Administrator may, if it shall be unwilling to so act,
or shall, if it is unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution,
the appointment of which does not adversely affect the then current rating of
the Certificates, as the successor to a Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of such
Servicer, provided that such successor to the Servicer shall not be deemed to
have made any representation or warranty as to any Mortgage Loan made by the
related Servicer. Pending appointment of a successor to a Servicer hereunder,
the Trust Administrator, unless the Trust Administrator is prohibited by law
from so acting, shall act in such capacity as provided herein. In connection
with such appointment and assumption, the Trust Administrator may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted the related Servicer
hereunder. The Trust Administrator and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Trust Administrator nor any other successor servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or any delay in making, any distribution hereunder or any portion thereof
caused by the failure of the applicable Servicer to deliver, or any delay in
delivering, cash, documents or records to it.
A Servicer that has been terminated shall, at the request of the
Trust Administrator but at the expense of such Servicer, deliver to the
assuming party all documents and records relating to each Sub-Servicing
Agreement and the related Mortgage Loans and an accounting of amounts
collected and held by it and otherwise use commercially reasonable efforts to
effect the orderly and efficient transfer and assignment of each Sub-Servicing
Agreement, but only to the extent of the Mortgage Loans serviced thereunder,
to the assuming party. Notwithstanding anything to the contrary contained
herein, the termination of a Servicer under this Agreement shall not extend to
any Sub-Servicer meeting the requirements of Section 3.02(a) and otherwise
servicing the related Mortgage Loans in accordance with the servicing
provisions of this Agreement.
Each Servicer shall cooperate with the Trust Administrator and any
successor servicer in effecting the termination of the terminated 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 such Servicer to the applicable Collection
Account or thereafter received with respect to the Mortgage Loans.
Neither the Trust Administrator nor any other successor servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or any delay in making, any distribution hereunder or any portion thereof
caused by (a) the failure of any Servicer to (i) deliver, or any delay in
delivering, cash, documents or records to it, (ii) cooperate as required by
this Agreement, or (iii) deliver the Mortgage Loan to the Trust Administrator
as required by this Agreement, or (b) restrictions imposed by any regulatory
authority having jurisdiction over the related Servicer.
Any successor to a Servicer as servicer shall during the term of its
service as servicer maintain in force the policy or policies that such
Servicer is required to maintain pursuant to Section 3.09(b) hereof.
SECTION 8.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to any
Servicer, the Trust Administrator shall give prompt written notice thereof to
the Sellers, and the Certificateholders at their respective addresses
appearing in the Certificate Register and to the Rating Agencies.
(b) Within two Business Days after the occurrence of any Event of
Default, the Trust Administrator shall transmit by mail to the Sellers and all
Certificateholders, and the Rating Agencies notice of each such Event of
Default hereunder known to the Trust Administrator, unless such Event of
Default shall have been cured or waived.
SECTION 8.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (g) of Section 8.01 may be waived, only by all of the
Holders of Certificates affected by such default or Event of Default and (b)
no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 11.01(b)(i), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been cured and remedied for
every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon
except to the extent expressly so waived.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default of which a Responsible Officer of the Trustee shall have actual
knowledge has occurred and remains uncured, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. Any
permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee shall
have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement, the
Truste shall notify the Certificateholders of such instrument in the event
that the Trustee, after so requesting, does not receive a satisfactorily
corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct, its negligent failure to perform its obligations
in compliance with this Agreement, or any liability which would be imposed by
reason of its willful misfeasance or bad faith; provided, however, that:
(a) prior to the occurrence of an Event of Default of
which a Responsible Officer of the Trustee shall have actual
knowledge, and after the curing or of all such Events of Default
that may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be personally liable except for the
performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall
be read into this Agreement against the Trustee and the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it reasonably believed in good
faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(b) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless the Trustee was
negligent in ascertaining or investigating the pertinent facts;
(c) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with this Agreement Act the direction of
the Holders of Certificates evidencing greater than 50% of the
Voting Rights allocated to each Class of Certificates relating to
the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement; and
(d) no provision of this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) the Trustee shall have no responsibility for any
act or omission of the Trust Administrator, it being understood and
agreed that the Trustee and Trust Administrator are independent
contractors and not agents, partners or joint venturers.
Except with respect to an Event of Default described in clause (a)
of Section 8.01, the Trustee shall not be deemed to have knowledge of any
Event of Default or event which, with notice or lapse of time, or both, would
become an Event of Default, unless a Responsible Officer of the Trustee shall
have received written notice thereof from a Servicer, the Depositor, or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Servicer
upon receipt of any such complaint, claim, demand, notice or other document
(i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of
which a Responsible Officer has actual knowledge, and (iii) which contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property.
SECTION 9.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors, Servicing Officers
or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee may consult with counsel, financial advisors
or accountants and any advice of such Persons or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge
(which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default that may
have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates
evidencing greater than 50% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action; the reasonable expense of every such investigation shall be
paid by the applicable Servicer in the event that such investigation
relates to an Event of Default by such Servicer, if an Event of
Default by such Servicer shall have occurred and is continuing, and
otherwise by the Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or
attorney appointed with due care;
(vii) the Trustee shall not be required to expend its own funds
or otherwise incur any financial liability in the performance of any
of its duties hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such liability is not assured to it; and
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement;
(ix) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and
the Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act; and
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or a Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Agreement, the Certificates or of any
Mortgage Loan or related document. The Trustee shall not be accountable for
the use or application by the Depositor, the Sellers or the Servicers of any
funds paid to the Depositor or any Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from the Certificate Account by the Depositor,
the Sellers or the Servicers. The Trustee shall not be responsible for the
legality or validity of this Agreement or the validity, priority, perfection
or sufficiency of the security for the Certificates issued or intended to be
issued hereunder. The Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement.
SECTION 9.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the other
parties hereto and with their Affiliates, with the same rights as it would
have if it were not the Trustee.
SECTION 9.05 Trustee's Fees and Expenses.
The Trustee shall be compensated by the Trust Administrator as
separately agreed. The Trustee and any director, officer, employee or agent of
the Trustee shall be indemnified by the Depositor and held harmless against
any loss, liability or expense (including reasonable attorney's fees and
expenses) (i) incurred in connection with any claim or legal action relating
to (a) this Agreement, (b) the Certificates, or (c) the performance of any of
the Trustee's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder or incurred by reason of
any action of the Trustee taken at the direction of the Certificateholders and
(ii) resulting from any error in any tax or information return prepared by a
Servicer. Such indemnity shall survive the termination of this Agreement or
the resignation or removal of the Trustee hereunder. Without limiting the
foregoing, the Depositor covenants and agrees, except as otherwise agreed upon
in writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee's negligence, bad faith
or willful misconduct, to pay or reimburse the Trustee, for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Agreement with respect to: (A)
the reasonable compensation and the expenses and disbursements of its counsel
not associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant,
engineer or appraiser that is not regularly employed by the Trustee, to the
extent that the Trustee must engage such persons to perform acts or services
hereunder and (C) printing and engraving expenses in connection with preparing
any Definitive Certificates. Except as otherwise provided herein, the Trustee
shall not be entitled to payment or reimbursement for any routine ongoing
expenses incurred by the Trustee in the ordinary course of its duties as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses. Anything in this Agreement to the contrary notwithstanding, in
no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.
SECTION 9.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having ratings on its long-term debt obligations at the time of
such appointment in at least the third highest rating category by both Xxxxx'x
and S&P or such lower ratings as will not cause Xxxxx'x or S&P to lower their
then-current ratings of the Class A Certificates, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 9.07 hereof.
SECTION 9.07 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (a) giving written notice of resignation to the Depositor,
the Sellers, the Trust Administrator and the Servicers and by mailing notice
of resignation by first class mail, postage prepaid, to the Certificateholders
at their addresses appearing on the Certificate Register, and to the Rating
Agencies, not less than 60 days before the date specified in such notice when,
subject to Section 9.08, such resignation is to take effect, and (b)
acceptance by a successor trustee in accordance with Section 9.08 meeting the
qualifications set forth in Section 9.06.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation or if
the Trustee breaches any of its obligations or representations hereunder, then
the Depositor may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee and one copy to the successor trustee. The Trustee
may also be removed at any time by the Holders of Certificates evidencing not
less than 50% of the Voting Rights evidenced by the Certificates. Notice of
any removal of the Trustee and acceptance of appointment by the successor
trustee shall be given to the Rating Agencies by the Depositor.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for the
appointment of a successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.08 hereof.
SECTION 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, upon receipt of all amounts due it hereunder, and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 9.06 hereof and its
acceptance shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown
in the Certificate Register. If the Depositor fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 9.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 9.06 hereof without the execution or filing of any paper
or further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicers and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the applicable Certificateholders, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this
Section 9.10, such powers, duties, obligations, rights and trusts as the
Servicers and the Trustee may consider necessary or desirable. If the
Servicers shall not have joined in such appointment within fifteen days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
9.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 9.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for any obligation of the Trustee under this
Agreement to advance funds on behalf of the Servicer, shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed by the Trustee (whether
as Trustee hereunder or as successor to the Servicer), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) no trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder; and
(c) the Servicers and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Servicers and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. The Trust Administrator shall not be
responsible for all action or inaction of any separate trustee or co-trustee.
If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent permitted
by law, without the appointment of a new or successor trustee.
SECTION 9.11 Office of the Trustee.
The office of the Trustee for purposes of receipt of notices and
demands is the Corporate Trust Office.
ARTICLE X
CONCERNING THE TRUST ADMINISTRATOR
SECTION 10.01 Duties of Trust Administrator.
The Trust Administrator, prior to the occurrence of an Event of
Default of which a Responsible Officer of the Trust Administrator shall have
actual knowledge and after the curing or waiver of all Events of Default that
may have occurred, undertakes with respect to the Trust Fund to perform such
duties and only such duties as are specifically set forth in this Agreement.
In case an Event of Default of which a Responsible Officer of the Trust
Administrator shall have actual knowledge has occurred and remains uncured,
the Trust Administrator shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs. Any permissive right of the Trust
Administrator set forth in this Agreement shall not be construed as a duty.
The Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trust Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they conform to the requirements of this
Agreement. The Trust Administrator shall have no duty to recompute,
recalculate or verify the accuracy of any resolution, certificate, statement,
opinion, report, document, order or other instrument so furnished to the Trust
Administrator. If any such instrument is found not to conform in any material
respect to the requirements of this Agreement, the Trust Administrator shall
notify the Certificateholders of such instrument in the event that the Trust
Administrator, after so requesting, does not receive a satisfactorily
corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct, its negligent failure to
perform its obligations in compliance with this Agreement, or any liability
which would be imposed by reason of its willful misfeasance or bad faith;
provided, however, that:
(a) prior to the occurrence of an Event of Default of
which a Responsible Officer of the Trust Administrator shall have
actual knowledge, and after the curing or of all such Events of
Default that may have occurred, the duties and obligations of the
Trust Administrator shall be determined solely by the express
provisions of this Agreement, the Trust Administrator shall not be
personally liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trust Administrator and the Trust Administrator may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trust Administrator and conforming to
the requirements of this Agreement which it reasonably believed in
good faith to be genuine and to have been duly executed by the
proper authorities respecting any matters arising hereunder;
(b) the Trust Administrator shall not be personally
liable for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trust Administrator, unless
the Trust Administrator was negligent in ascertaining or
investigating the pertinent facts;
(c) the Trust Administrator shall not be personally
liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with this Agreement or at
the direction of the Holders of Certificates evidencing greater than
50% of the Voting Rights allocated to each Class of Certificates
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trust Administrator, or exercising
any trust or power conferred upon the Trust Administrator, under
this Agreement; and
(d) no provision of this Agreement shall require the
Trust Administrator to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) The Trust Administrator shall have no duty (A) to
see to any recording, filing or depositing of this Agreement or any
agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to see to
the maintenance of any such recording, filing or depositing or to
any rerecording, refiling or redepositing of any thereof, (B) to see
to any insurance, or (C) to see to the payment or discharge of any
tax, assessment or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Fund other than from funds available
in the Certificate Account.
Except with respect to an Event of Default described in clause (a)
of Section 8.01, the Trust Administrator shall not be deemed to have knowledge
of any Event of Default or event which, with notice or lapse of time, or both,
would become an Event of Default, unless a Responsible Officer of the Trust
Administrator shall have received written notice thereof from a Servicer, the
Depositor, or a Certificateholder, or a Responsible Officer of the Trust
Administrator has actual notice thereof, and in the absence of such notice no
provision hereof requiring the taking of any action or the assumption of any
duties or responsibility by the Trust Administrator following the occurrence
of any Event of Default or event which, with notice or lapse of time or both,
would become an Event of Default, shall be effective as to the Trust
Administrator.
The Trust Administrator shall have no duty hereunder with respect to
any complaint, claim, demand, notice or other document it may receive or which
may be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trust Administrator shall use its best efforts to remit to
the Servicer upon receipt of any such complaint, claim, demand, notice or
other document (i) which is delivered to the Corporate Trust Office of the
Trust Administrator, (ii) of which a Responsible Officer has actual knowledge,
and (iii) which contains information sufficient to permit the Trust
Administrator to make a determination that the real property to which such
document relates is a Mortgaged Property.
SECTION 10.02 Certain Matters Affecting the Trust Administrator.
(a) Except as otherwise provided in Section 10.01:
(i) the Trust Administrator may request and rely upon and shall
be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors,
Servicing Officers or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Trust Administrator may consult with counsel,
financial advisors or accountants and any advice of such Persons or
opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such advice or
opinion of counsel;
(iii) the Trust Administrator shall be under no obligation to
exercise any of the trusts or powers vested in it by this Agreement
or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trust
Administrator reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trust
Administrator of the obligation, upon the occurrence of an Event of
Default of which a Responsible Officer of the Trust Administrator
shall have actual knowledge (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) the Trust Administrator shall not be personally liable for
any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default that may
have occurred, the Trust Administrator shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing so to do by Holders of
Certificates evidencing greater than 50% of the Voting Rights
allocated to each Class of Certificates; provided, however, that if
the payment within a reasonable time to the Trust Administrator of
the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trust
Administrator, not reasonably assured to the Trust Administrator by
the security afforded to it by the terms of this Agreement, the
Trust Administrator may require reasonable indemnity against such
expense or liability as a condition to taking any such action; the
reasonable expense of every such investigation shall be paid by the
applicable Servicer in the event that such investigation relates to
an Event of Default by such Servicer, if an Event of Default by such
Servicer shall have occurred and is continuing, and otherwise by the
Certificateholders requesting the investigation;
(vi) the Trust Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trust Administrator shall
not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care;
(vii) the Trust Administrator shall not be required to expend
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) the Trust Administrator shall not be liable for any loss
on any investment of funds pursuant to this Agreement except as
provided in Section 3.05(e);
(ix) The right of the Trust Administrator to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trust Administrator shall not be
answerable for other than its negligence or willful misconduct in
the performance of such act; and
(x) The Trust Administrator shall not be required to give any
bond or surety in respect of the execution of the Trust Fund created
hereby or the powers granted hereunder.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trust Administrator, may be enforced by it
without the possession of any of the Certificates, or the production thereof
at the trial or other proceeding relating thereto, and any such suit, action
or proceeding instituted by the Trust Administrator shall be brought in its
name for the benefit of all the Holders of such Certificates, subject to the
provisions of this Agreement.
SECTION 10.03 Trust Administrator Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or a Servicer, as the case may be, and the Trust Administrator
assumes no responsibility for their correctness. The Trust Administrator makes
no representations as to the validity or sufficiency of this Agreement, the
Certificates or of any Mortgage Loan or related document. The Trust
Administrator shall not be accountable for the use or application by the
Depositor, the Sellers or the Servicers of any funds paid to the Depositor or
any Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Certificate Account by the Depositor, the Sellers or the Servicers.
The Trust Administrator shall not be responsible for the legality or validity
of this Agreement or the validity, priority, perfection or sufficiency of the
security for the Certificates issued or intended to be issued hereunder. The
Trust Administrator shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection for any security interest or lien granted
to it hereunder or to record this Agreement.
SECTION 10.04 Trust Administrator May Own Certificates.
The Trust Administrator in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights as it would
have if it were not the Trust Administrator.
SECTION 10.05 Trust Administrator's Fees and Expenses.
The Trust Administrator and any director, officer, employee or agent
of the Trust Administrator shall be indemnified by DLJMC and held harmless (up
to a maximum of one $150,000) against any loss, liability or expense
(including reasonable attorney's fees and expenses) (i) incurred in connection
with any claim or legal action relating to (a) this Agreement, (b) the
Certificates, or (c) the performance of any of the Trust Administrator's
duties hereunder, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of
the Trust Administrator's duties hereunder or incurred by reason of any action
of the Trust Administrator taken at the direction of the Certificateholders
and (ii) resulting from any error in any tax or information return prepared by
a Servicer. Such indemnity shall survive the termination of this Agreement or
the resignation or removal of the Trust Administrator hereunder. Without
limiting the foregoing, DLJMC covenants and agrees, except as otherwise agreed
upon in writing by DLJMC and the Trust Administrator, and except for any such
expense, disbursement or advance as may arise from the Trust Administrator's
negligence, bad faith or willful misconduct, to pay or reimburse the Trust
Administrator (up to a maximum of $150,000), for all reasonable expenses,
disbursements and advances incurred or made by the Trust Administrator in
accordance with any of the provisions of this Agreement with respect to: (A)
the reasonable compensation and the expenses and disbursements of its counsel
not associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant,
engineer or appraiser that is not regularly employed by the Trust
Administrator, to the extent that the Trust Administrator must engage such
persons to perform acts or services hereunder and (C) printing and engraving
expenses in connection with preparing any Definitive Certificates. Except as
otherwise provided herein, the Trust Administrator shall not be entitled to
payment or reimbursement for any routine ongoing expenses incurred by the
Trust Administrator in the ordinary course of its duties as Trust
Administrator, Registrar, Tax Matters Person or Paying Agent hereunder or for
any other expenses. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trust Administrator be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trust Administrator
has been advised of the likelihood of such loss or damage and regardless of
the form of action.
SECTION 10.06 Eligibility Requirements for Trust Administrator.
The Trust Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws of any
state or the United States of America, authorized under such laws to exercise
corporate trust powers, having ratings on its long-term debt obligations at
the time of such appointment in at least the third highest rating category by
both Xxxxx'x and S&P or such lower ratings as will not cause Xxxxx'x or S&P to
lower their then-current ratings of the Class A Certificates, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or association publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 10.06 the combined capital
and surplus of such corporation or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trust Administrator shall
cease to be eligible in accordance with the provisions of this Section 10.06,
the Trust Administrator shall resign immediately in the manner and with the
effect specified in Section 10.07 hereof.
SECTION 10.07 Resignation and Removal of Trust Administrator.
The Trust Administrator may at any time resign and be discharged
from the trusts hereby created by (a) giving written notice of resignation to
the Depositor, the Sellers, the Trustee and the Servicers and by mailing
notice of resignation by first class mail, postage prepaid, to the
Certificateholders at their addresses appearing on the Certificate Register,
and to the Rating Agencies, not less than 60 days before the date specified in
such notice when, subject to Section 10.08, such resignation is to take
effect, and (b) acceptance by a successor trust administrator in accordance
with Section 10.08 meeting the qualifications set forth in Section 10.06.
If at any time the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 10.06 hereof and shall fail to
resign after written request thereto by the Depositor, or if at any time the
Trust Administrator shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trust Administrator or of its
property shall be appointed, or any public officer shall take charge or
control of the Trust Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation or if the Trust
Administrator breaches any of its obligations or representations hereunder,
then the Depositor may remove the Trust Administrator and appoint a successor
trust administrator by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trust Administrator and one copy to the
successor trust administrator. The Trust Administrator may also be removed at
any time by the Trustee or the Holders of Certificates evidencing not less
than 50% of the Voting Rights evidenced by the Certificates. Notice of any
removal of the Trust Administrator and acceptance of appointment by the
successor trust administrator shall be given to the Rating Agencies by the
Depositor.
If no successor trust administrator shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trust
Administrator may, at the Trust Fund's expense, petition any court of
competent jurisdiction for the appointment of a successor trust administrator.
Any resignation or removal of the Trust Administrator and
appointment of a successor trust administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance of
appointment by the successor trust administrator as provided in Section 10.08
hereof.
SECTION 10.08 Successor Trust Administrator.
Any successor trust administrator appointed as provided in Section
10.07 hereof shall execute, acknowledge and deliver to the Depositor and to
its predecessor trust administrator an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trust
administrator shall become effective and such successor trust administrator,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as trust administrator herein. The
Depositor, upon receipt of all amounts due it hereunder, and the predecessor
trust administrator shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trust administrator all such rights,
powers, duties, and obligations.
No successor trust administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor trust administrator shall be eligible under the provisions of
Section 10.06 hereof and its acceptance shall not adversely affect the then
current rating of the Certificates.
Upon acceptance of appointment by a successor trust administrator as
provided in this Section 10.08, the Depositor shall mail notice of the
succession of such trust administrator hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within ten days after acceptance of
appointment by the successor trust administrator, the successor trust
administrator shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 10.09 Merger or Consolidation of Trust Administrator.
Any Person into which the Trust Administrator may be merged or
converted or with which it may be consolidated or any Person resulting from
any merger, conversion or consolidation to which the Trust Administrator shall
be a party, or any Person succeeding to the business of the Trust
Administrator, shall be the successor of the Trust Administrator hereunder,
provided that such Person shall be eligible under the provisions of Section
10.06 hereof without the execution or filing of any paper or further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 10.10 Appointment of Co-Trust Administrator or Separate
Trust Administrator.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicers and the Trust Administrator acting jointly
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Trust Administrator to act as co-trust
administrator or co-trust administrators jointly with the Trust Administrator,
or separate trust administrator or separate trust administrators, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the applicable Certificateholders, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions
of this Section 10.10, such powers, duties, obligations, rights and trusts as
the Servicers and the Trust Administrator may consider necessary or desirable.
If the Servicers shall not have joined in such appointment within fifteen days
after the receipt by it of a request to do so, or in the case an Event of
Default shall have occurred and be continuing, the Trust Administrator alone
shall have the power to make such appointment. No co-trust administrator or
separate trust administrator hereunder shall be required to meet the terms of
eligibility as a successor trust administrator under Section 10.06 and no
notice to Certificateholders of the appointment of any co-trust administrator
or separate trust administrator shall be required under Section 10.08.
Every separate trust administrator and co-trust administrator shall,
to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trust Administrator, except for any obligation of the Trust
Administrator under this Agreement to advance funds on behalf of the Servicer,
shall be conferred or imposed upon and exercised or performed by the Trust
Administrator and such separate trust administrator or co-trust administrator
jointly (it being understood that such separate trust administrator or
co-trust administrator is not authorized to act separately without the Trust
Administrator joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed by
the Trust Administrator (whether as Trust Administrator hereunder or as
successor to the Servicer), the Trust Administrator shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or
any portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trust administrator or co-trust administrator, but
solely at the direction of the Trust Administrator;
(b) no trust administrator hereunder shall be held personally liable
by reason of any act or omission of any other trust administrator hereunder;
and
(c) the Servicers and the Trust Administrator acting jointly may at
any time accept the resignation of or remove any separate trust administrator
or co-trust administrator.
Any notice, request or other writing given to the Trust
Administrator shall be deemed to have been given to each of the then separate
trust administrators and co-trust administrators, as effectively as if given
to each of them. Every instrument appointing any separate trust administrator
or co-trust administrator shall refer to this Agreement and the conditions of
this Article IX. Each separate trust administrator and co-trust administrator,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trust Administrator or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trust Administrator. Every such instrument shall
be filed with the Trust Administrator and a copy thereof given to the
Servicers and the Depositor.
Any separate trust administrator or co-trust administrator may, at
any time, constitute the Trust Administrator, its agent or attorney-in-fact,
with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Agreement on its behalf and in its
name. The Trust Administrator shall not be responsible for any action or
inaction of any separate Trust Administrator or Co-Trust Administrator. If any
separate trust administrator or co-trust administrator shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trust
Administrator, to the extent permitted by law, without the appointment of a
new or successor trust administrator.
SECTION 10.11 Office of the Trust Administrator.
The office of the Trust Administrator for purposes of receipt of
notices and demands is the Corporate Trust Office.
SECTION 10.12 Tax Return.
Each Servicer, upon request, will furnish the Trust Administrator
with all such information in the possession of such Servicer as may be
reasonably required in connection with the preparation by the Trust
Administrator of all tax and information returns of the Trust Fund, and the
Trust Administrator shall sign such returns. Each Servicer shall indemnify the
Trust Administrator for all reasonable costs, including legal fees and
expenses, related to errors in such tax returns due to errors only in
information provided by such Servicer.
SECTION 10.13 Periodic Filings.
The Trust Administrator shall, on behalf of the Trust, cause to be
filed with the Securities and Exchange Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder. In connection with the preparation and filing of such
periodic reports, the Depositor and each Servicer shall timely provide to the
Trust Administrator all material information requested by the Trust
Administrator and reasonably available to them which is required to be
included in such reports. The Trust Administrator shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Trust Administrator's inability or failure
to obtain any information not resulting from its own negligence or willful
misconduct.
SECTION 10.14 Determination of Certificate Index.
On each Interest Determination Date, the Trust Administrator shall
determine the Certificate Index for the Accrual Period and inform each
Servicer of such rate.
ARTICLE XI
TERMINATION
SECTION 11.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans.
The obligations and responsibilities of the Servicers, the Sellers,
the Depositor, the Trustee and the Trust Administrator created hereby with
respect to the Trust Fund created hereby shall terminate upon the earlier of:
(a) (1) with respect to Loan Group II, the repurchase
by WMMSC at its election, of all Mortgage Loans in such Loan Groups
and all property acquired in respect of any Mortgage Loan remaining
in such Loan Groups, which repurchase right WMMSC may exercise at
its sole and exclusive election as of any Distribution Date (such
applicable Distribution Date with respect to Loan Group II, being
herein referred to as the "Optional Termination Date") on or after
the date on which the aggregate Principal Balance of the Mortgage
Loans in Loan Group II, at the time of the repurchase is less than
5% of the aggregate Principal Balance of the Mortgage Loans in Loan
Group II, and (2) with respect to Loan Group I, Loan Group III, and
Loan Group IV, the repurchase by Calmco at its election, of all
Mortgage Loans in such Loan Group I, Loan Group III and Loan Group
IV and all property acquired in respect of any Mortgage Loan
remaining in such Loan Group I, Loan Group III and Loan Group IV,
which repurchase right Calmco may exercise at its sole and exclusive
election as of any Distribution Date (such applicable Distribution
Date with respect to Loan Group I, Loan Group III and Loan Group IV
being herein referred to as the "Optional Termination Date") on or
after the date on which the aggregate Principal Balance of the
Mortgage Loans in Loan Group I, Loan Group III and Loan Group IV at
the time of the repurchase is less than 5% of the aggregate
Principal Balance of the Mortgage Loans in Loan Group I, Loan Group
III, and Loan Group IV as of the Cut-off Date; and
(b) the later of (i) twelve months after the maturity
of the last Mortgage Loan remaining in the Trust Fund, (ii) the
liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property and (iii) the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to this
Agreement.
In no event shall the trust created hereby continue beyond the earlier of (1)
the expiration of 21 years from the death of the last survivor of the
descendants of Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the United States
to Great Britain, living on the date of execution of this Agreement or (ii)
the Distribution Date in February, 2031.
The Mortgage Loan Purchase Price for any such Optional Termination
shall be equal to the sum of (i) 100% of the Stated Principal Balance of each
Mortgage Loan in the applicable Loan Groups (other than in respect of REO
Property) plus accrued and unpaid interest thereon from the date to which such
interest was paid or advanced at the sum of the applicable Mortgage Rate, to
but not including the Due Date in the month of the final Distribution Date (or
the Net Mortgage Rate with respect to any Mortgage Loan currently serviced by
the entity exercising such Optional Termination) and (ii) with respect to any
REO Property, the lesser of (x) the appraised value of any REO Property as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Depositor at the expense of the Depositor and (y)
the Stated Principal Balance of each Mortgage Loan in the related Loan Groups
related to any REO Property, in each case and (iii) any remaining unreimbursed
Advances, Servicing Advances and Servicing Fees. The Trust Administrator shall
give notice to the Rating Agencies of election to purchase the Mortgage Loans
pursuant to this Section 10.01 and of the Optional Termination Date.
SECTION 11.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section 11.01,
Calmco or WMMSC, as applicable, shall, at least twenty days prior to the date
notice is to be mailed to the affected Certificateholders notify the Trustee
and Trust Administrator of such Optional Termination Date and of the
applicable purchase price of the Mortgage Loans to be purchased.
(b) Any purchase of the Mortgage Loans by Calmco or WMMSC, as
applicable, shall be made on an Optional Termination Date by deposit of the
applicable purchase price into the Certificate Account, as applicable, before
the Distribution Date on which such repurchase is effected. Upon receipt by
the Trust Administrator of an Officer's Certificate of Calmco or WMMSC, as
applicable, certifying as to the deposit of such purchase price into the
Certificate Account, the Trust Administrator and each co-trust administrator
and separate trust administrator, if any, then acting as such under this
Agreement, shall, upon request and at the expense of Calmco or WMMSC, as
applicable, execute and deliver all such instruments of transfer or
assignment, in each case without recourse, as shall be reasonably requested by
Calmco or WMMSC, as applicable, or WMMSC, as applicable, to vest title in
Calmco in the Mortgage Loans so purchased and shall transfer or deliver to
Calmco the purchased Mortgage Loans. Any distributions on the Mortgage Loans
which have been subject to an Optional Termination received by the Trustee
subsequent to (or with respect to any period subsequent to) the Optional
Termination Date shall be promptly remitted by it to Calmco or WMMSC, as
applicable.
(c) Notice of the Distribution Date on which a Servicer anticipates
that the final distribution shall be made (whether upon Optional Termination
or otherwise), shall be given promptly by such Servicer to the Trust
Administrator and by the Trust Administrator by first class mail to Holders of
the affected Certificates. Such notice shall be mailed no earlier than the
15th day and not later than the 10th day preceding the Optional Termination
Date or date of final distribution, as the case may be. Such notice shall
specify (i) the Distribution Date upon which final distribution on the
affected Certificates will be made upon presentation and surrender of such
Certificates at the office or agency therein designated, (ii) the amount of
such final distribution and (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, such distribution being made only
upon presentation and surrender of such Certificates at the office or agency
maintained for such purposes (the address of which shall be set forth in such
notice).
(d) In the event that any Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trust Administrator shall give a
second written notice to the remaining such Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within six months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Trust
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain subject to the Trust Fund.
SECTION 11.03 Additional Termination Requirements.
(a) In the event both Terminating Entities exercise their purchase
options pursuant to Section 11.01, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee have
received an Opinion of Counsel to the effect that the failure to comply with
the requirements of this Section will not (i) result in the imposition of
taxes on a "prohibited transaction" of the REMIC, as described in Section 860F
of the Code, or (ii) cause the Trust Fund to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(A) within 90 days prior to the final
Distribution Date set forth in the notice given by the
Terminating Entities under Section 11.02, the Holder of the
Class AR Certificates shall adopt a plan of complete
liquidation of the REMIC; and
(B) at or after the time of adoption of any such
plan of complete liquidation for the Trust Fund at or prior to
the final Distribution Date, the Trustee shall sell all of the
assets of the Trust Fund to the Depositor for cash; provided,
however, that in the event that a calendar quarter ends after
the time of adoption of such a plan of complete liquidation but
prior to the final Distribution Date, the Trustee shall not
sell any of the assets of the Trust Fund prior to the close of
that calendar quarter.
(b) By its acceptance of a Class AR Certificate, the Holder thereof
hereby agrees to adopt such a plan of complete liquidation and to take such
other action in connection therewith as may be reasonably required to
liquidate and otherwise terminate the Trust Fund.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Servicers, the Sellers, the Trust Administrator, the Special
Servicer and the Trustee, without the consent of any of the
Certificateholders,
(i) to cure any error or ambiguity,
(ii) to correct or supplement any provisions herein that may be
inconsistent with any other provisions herein or in the Prospectus
Supplement,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the
qualification of the Trust Fund as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund pursuant to the Code that
would be a claim against the Trust Fund, provided that the Trustee
has received an Opinion of Counsel to the effect that (A) such
action is necessary or desirable to maintain such qualification or
to avoid or minimize the risk of the imposition of any such tax and
(B) such action will not adversely affect the status of the Trust
Fund as a REMIC or adversely affect in any material respect the
interests of any Certificateholder,
(iv) in connection with the appointment of a successor
servicer, to modify, eliminate or add to any of the servicing
provisions, provided the Rating Agencies confirm the rating of the
Certificates; or
(v) to make any other provisions with respect to matters or
questions arising under this Agreement that are not materially
inconsistent with the provisions of this Agreement, provided that
such action shall not adversely affect in any material respect the
interests of any Certificateholder or cause an Adverse REMIC Event.
(b) This Agreement may be amended from time to time by the
Depositor, the Sellers, the Servicers, the Trust Administrator and the Trustee
with the consent of the Holders of Certificates evidencing, in the aggregate,
not less than 66-2/3%, the Special Servicer of the Voting Rights of all the
Certificates for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the Holders of the Certificates; provided,
however, that no such amendment may (i) reduce in any manner the amount of,
delay the timing of or change the manner in which payments received on or with
respect to Mortgage Loans are required to be distributed with respect to any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of a
Class of Certificates in a manner other than as set forth in (i) above without
the consent of the Holders of Certificates evidencing not less than 66-2/3% of
the Voting Rights of such Class, (iii) reduce the aforesaid percentages of
Voting Rights, the holders of which are required to consent to any such
amendment without the consent of 100% of the Holders of Certificates of the
Class affected thereby, (iv) change the percentage of the Stated Principal
Balance of the Mortgage Loans specified in Section 11.01(a) relating to
optional termination of the Trust Fund or (v) modify the provisions of this
Section 12.01.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as Trust Administrator may prescribe.
(c) Promptly after the execution of any amendment to this Agreement,
the Trust Administrator shall furnish written notification of the substance of
such amendment to each Certificateholder, and the Rating Agencies.
(d) Prior to the execution of any amendment to this Agreement, each
of the Trustee and the Trust Administrator shall receive and be entitled to
conclusively rely on an Opinion of Counsel (at the expense of the Person
seeking such amendment) stating that the execution of such amendment is
authorized and permitted by this Agreement. The Trustee and the Trust
Administrator may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's or the Trust Administrator's own rights,
duties or immunities under this Agreement.
(e) Notwithstanding the foregoing, FSA shall be required to consent,
to any amendment that adversely affects in any respect the rights and
interests of FSA hereunder.
SECTION 12.02 Recordation of Agreement; Counterparts.
(a) This Agreement (other than Schedule I) is subject to recordation
in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere. Such recordation, if any, shall be effected by
the related Servicer at its expense.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 12.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.04 Intention of Parties.
(a) It is the express intent of the Depositor, DLJMC, GreenPoint,
the Servicers, the Trust Administrator and the Trustee that the conveyance by
GreenPoint of the GreenPoint Loans and the conveyance by DLJMC to the
Depositor pursuant to the Assignment and Assumption Agreement and the
conveyance by the Depositor to the Trustee as provided for in Section 2.01 of
each of such Sellers' and Depositor's right, title and interest in and to the
Mortgage Loans be, and be construed as, an absolute sale and assignment by
such Sellers to the Depositor and by the Depositor to the Trustee of the
Mortgage Loans for the benefit of the Certificateholders. Further, it is not
intended that any conveyance be deemed to be a pledge of the Mortgage Loans by
GreenPoint or DLJMC, as applicable, to the Depositor or by the Depositor to
the Trustee to secure a debt or other obligation. However, in the event that
the Mortgage Loans are held to be property of GreenPoint or DLJMC, as
applicable, or the Depositor, or if for any reason the Mortgage Loan Purchase
Agreement, the Assignment and Assumption Agreement or this Agreement is held
or deemed to create a security interest in the Mortgage Loans, then it is
intended that (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyances provided for in Section 2.01 shall be
deemed to be a grant by such Sellers and the Depositor to the Trustee on
behalf of the Certificateholders, to secure payment in full of the Secured
Obligations (as defined below), of a security interest in all of such Sellers'
and the Depositor's right (including the power to convey title thereto), title
and interest, whether now owned or hereafter acquired, in and to the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, and all
accounts, contract rights, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and uncertificated securities consisting of, arising
from or relating to (A) the Mortgage Loans, including with respect to each
Mortgage Loan, the Mortgage Note and related Mortgage, and all other documents
in the related Trustee Mortgage Files, and including any Qualified Substitute
Mortgage Loans; (B) pool insurance policies, hazard insurance policies and any
bankruptcy bond relating to the foregoing, if applicable; (C) the Certificate
Account; (D) the Collection Account; (E) all amounts payable after the Cut-off
Date to the holders of the Mortgage Loans in accordance with the terms
thereof; (F) all income, payments, proceeds and products of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts from time to time
held or invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property; and (G) all cash and non-cash
proceeds of any of the foregoing; (iii) the possession by the Trustee or any
other agent of the Trustee of Mortgage Notes or such other items of property
as constitute instruments, money, documents, advices of credit, letters of
credit, goods, certificated securities or chattel paper shall be deemed to be
a "possession by the secured party", or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-305, 8-313 or 8-321 thereof); and (iv) notifications to persons
holding such property, and acknowledgments, receipts or confirmations from
persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
securities intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
"Secured Obligations" means (i) the rights of each Certificateholder to be
paid any amount owed to it under this Agreement and (ii) all other obligations
of such Sellers and the Depositor under this Agreement, the Assignment and
Assumption Agreement and the Mortgage Loan Purchase Agreement.
(b) The Sellers and the Depositor, and, at the Depositor's
direction, the Servicers, the Trust Administrator and the Trustee, shall, to
the extent consistent with this Agreement, take such reasonable actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans and the other property described
above, such security interest would be deemed to be a perfected security
interest of first priority as applicable. The Depositor shall prepare and
file, at the related Servicer's expense, all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect the Trustee's security
interest in or lien on the Mortgage Loans, including without limitation (i)
continuation statements, and (ii) such other statements as may be occasioned
by any transfer of any interest of any Servicer or the Depositor in any
Mortgage Loan.
SECTION 12.05 Notices.
In addition to other notices provided under this Agreement, the
Trust Administrator shall notify the Rating Agencies in writing: (a) of any
substitution of any Mortgage Loan; (b) of any payment or draw on any insurance
policy applicable to the Mortgage Loans; (c) of the final payment of any
amounts owing to a Class of Certificates; (d) any Event of Default under this
Agreement; and (e) in the event any Mortgage Loan is repurchased in accordance
with this Agreement.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when received (i) in the case of
the Depositor, Credit Suisse First Boston Mortgage Securities Corp., 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President; (ii) in the
case of the Trustee, the Corporate Trust Office, or such other address as may
hereafter be furnished to the Depositor in writing by the Trustee; (iii) in
the case of DLJMC, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxx (with a copy to DLJ Mortgage Acceptance Corp., 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Office of the
General Counsel), or such other address as may be hereafter furnished to the
Depositor and the Trustee by DLJMC in writing, (iv) in the case of, WMMSC, 00
Xxxxx Xxxxxxx Xxxxx, Xxxxxx Xxxxx, XX 00000, Attention: General Counsel, or
such other address as may be hereafter furnished in writing to the Depositor
and the Trustee by WMMSC, (v) in the case of GreenPoint, (if in its capacity
as a Seller) to 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxx
X. Xxxxxxxx, Tel. # 000-000-0000, Tax # 000-000-0000 and (in its capacity as a
Servicer) to 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxx
Xxxxxxx, Mail Stop N010206, Tel. # 000-000-0000; Fax # 000-000-0000, or such
other address as may be hereafter furnished in writing to the Depositor and
the Trustee by WMBFA, (v) in the case of Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; (vi) in the case of Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx Xxxxxxxxx; (vii) in the
case of Calmco, Calmco Servicing L.P., 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000-X,
Xxxxxx, Xxxxx, Attention: Xxxx Xxxx; (viii) in the case of GreenPoint Mortgage
Funding, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000; and (ix) if
to the Trust Administrator to 000 X. 00xx Xx., 0xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Window, Certificate Registrar and Transfers. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid.
SECTION 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 12.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Certificates
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trust
Administrator a written notice of an Event of Default and of the continuance
thereof, as provided herein, and unless the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates shall
also have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trust Administrator such reasonable indemnity as it may require against
the costs, expenses, and liabilities to be incurred therein or thereby, and
the Trust Administrator, for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trust Administrator, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and for the common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 11.07, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 12.08 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Trust Administrator pursuant to this Agreement, are and shall
be deemed fully paid.
SECTION 12.09 Protection of Assets.
Except for transactions and activities entered into in connection
with the securitization that is the subject of this agreement, the trust
created by this agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii)engage in any business or activities.
Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after the Certificates have been paid.
IN WITNESS WHEREOF, the Depositor, the Sellers, the Servicers, the
Trust Administrator and the Trustee have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the
first day of February, 2001.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By:____________________________________
Name:
Title:
DLJ MORTGAGE CAPITAL, INC.,
as a Seller
By:____________________________________
Name:
Title:
GREENPOINT MORTGAGE FUNDING, INC.,
as a Seller
By:____________________________________
Name:
Title:
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP.,
as a Seller and a Servicer
By:____________________________________
Name:
Title:
CHASE MANHATTAN MORTGAGE CORPORATION,
as a Seller and a Servicer
By:____________________________________
Name:
Title:
CALMCO SERVICING L.P.,
as the Special Servicer
By:____________________________________
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trust Administrator
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ___ day of May, 2001, before me, personally appeared
____________, known to me to be a _______ of Credit Suisse First Boston
Mortgage Securities Corp., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ___ day of May, 2001, before me, personally appeared
__________, known to me to be a _________________ of DLJ Mortgage Capital,
Inc., one of the corporations that executed the within instrument and also
known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF )
: ss.:
COUNTY OF )
On the ___ day of May, 2001, before me, personally appeared
__________, known to me to be a _________________ of Washington Mutual
Mortgage Securities Corp., one of the corporations that executed the within
instrument and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of May, 2001 before me, a Notary Public in and for said
State, personally appeared ______________ known to me to be a _____________ of
Bank One, National Association, the national banking association that executed
the within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of May, 2001 before me, a Notary Public in and for said
State, personally appeared ______________ known to me to be a _____________ of
The Chase Manhattan Mortgage Corporation, the New Jersey corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of May, 2001 before me, a Notary Public in and for said
State, personally appeared ______________ known to me to be a _____________ of
Calmco Servicing L.P., the Delaware limited partnership that executed the
within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of May, 2001 before me, a Notary Public in and for said
State, personally appeared ______________ known to me to be a _____________ of
GreenPoint Mortgage Funding, Inc., the corporation that executed the within
instrument and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of May, 2001 before me, a Notary Public in and for said
State, personally appeared ______________ known to me to be a _____________ of
The Chase Manhattan Bank, a New York banking corporation that executed the
within instrument and also known to me tobe 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 certificatefirst above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
[FORM OF CLASS A CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No. :
Cut-off Date : May 1, 2001
First Distribution Date : June 25, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate :
Maturity Date :
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class A
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of adjustable rate conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Servicers, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as a seller (in
such capacity, a "Seller"), Washington Mutual Mortgage Securities Corp., as a
seller (in such capacity, a "Seller") and a servicer (in such capacity, a
"Servicer"), Bank One, National Association, as trustee (the "Trustee"), The
Chase Manhattan Bank, as trust administrator (the "Trust Administrator") and
Calmco Servicing L.P., as a special servicer (in such capacity, a "Special
Servicer"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: May 31, 2001.
THE CHASE MANHATTAN BANK,
as Trust Administrator
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class A
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust Administrator
is liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicers, the Sellers,
the Trustee and the Trust Administrator with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trust Administrator upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office or the
office or agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
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 Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, each Servicer, each Seller, the Trustee, the Trust
Administrator and any agent of the Depositor, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Servicers,
the Sellers, the Depositor, the Trustee, the Trust Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Group I Mortgage Loans, the Group II Mortgage Loans, the Group
III Mortgage Loans or the Group IV Mortgage Loans is less than 5% of the
Aggregate Loan Balance of the respective Loan Group as of the Cut-off Date,
Calmco will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans in such respective Group and all property acquired in
respect of the Mortgage Loans of such Group at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund 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.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of____________________________________________________________,
account number , or, if mailed by check, to ___________________________________
Applicable statements should be mailed to _____________________________________
This information is provided by, the assignee named above, or, as its agent.
EXHIBIT B
[FORM OF CLASS M CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No. :
Cut-off Date : May 1, 2001
First Distribution Date : June 25, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Interest Rate :
Maturity Date :
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class M-[_]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of adjustable rate conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Servicers, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as a seller (in
such capacity, a "Seller"), Washington Mutual Mortgage Securities Corp., as a
seller (in such capacity, a "Seller") and a servicer (in such capacity, a
"Servicer"), Bank One, National Association, as trustee (the "Trustee"), The
Chase Manhattan Bank, as trust administrator (the "Trust Administrator") and
Calmco Servicing L.P., as a special servicer (in such capacity, a "Special
Servicer"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: May 31, 2001.
THE CHASE MANHATTAN BANK,
as Trust Administrator
By ____________________________
Countersigned:
By ___________________________
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class M-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust Administrator
is liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicers, the Sellers,
the Trustee and the Trust Administrator with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trust Administrator upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office or the
office or agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
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 Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, each Servicer, each Seller, the Trustee, the Trust
Administrator and any agent of the Depositor, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Servicers,
the Sellers, the Depositor, the Trustee, the Trust Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Group I Mortgage Loans, the Group II Mortgage Loans, the Group
III Mortgage Loans or the Group IV Mortgage Loans is less than 5% of the
Aggregate Loan Balance of the respective Loan Group as of the Cut-off Date,
Calmco will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans in such respective Group and all property acquired in
respect of the Mortgage Loans of such Group at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund 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.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number ______________, or, if mailed by check, to _____________________
_______________________________________________________________________________
_______________________________________________________________________________
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
EXHIBIT C
[FORM OF CLASS C-B CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
[PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, NEITHER THIS CERTIFICATE NOR
ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE
TRUST ADMINISTRATOR (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE CODE NOR A PERSON ACTING ON BEHALF OF THAT PLAN OR
ARRANGEMENT NOR USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT THAT
TRANSFER, OR (II) IF THE PURCHASER IS AN INSURANCE COMPANY, A REPRESENTATION
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III)
AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. IN THE EVENT THE REPRESENTATIONS REFERRED TO IN THE
PRECEDING SENTENCE ARE NOT FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO
HAVE BEEN MADE TO THE TRUST ADMINISTRATOR BY THE TRANSFEREE'S ACCEPTANCE OF
THIS CERTIFICATE, OR BY ANY BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS
CERTIFICATE IN BOOK-ENTRY FORM. IN THE EVENT THAT A REPRESENTATION IS
VIOLATED, OR ANY ATTEMPT TO TRANSFER THIS CERTIFICATE TO A PLAN OR PERSON
ACTING ON BEHALF OF A PLAN OR USING A PLAN'S ASSETS IS ATTEMPTED WITHOUT THE
DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL DESCRIBED ABOVE, THE
ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE SHALL BE VOID AND OF NO
EFFECT.]
Certificate No. :
Cut-off Date : May 1, 2001
First Distribution Date : June 25, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class C-B-[__]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Sellers, the Servicers, the
Trustee or the Trust Administrator referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_____________________________________________],
is the registered owner of the Percentage Interest evidenced by this
Certificate (obtained by dividing the denomination of this Certificate by the
aggregate of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, DLJ Mortgage
Capital, Inc., as a seller (in such capacity, a "Seller"), Washington Mutual
Mortgage Securities Corp., as a seller (in such capacity, a "Seller") and a
servicer (in such capacity, a "Servicer"), Bank One, National Association, as
trustee (the "Trustee"), The Chase Manhattan Bank, as trust administrator (the
"Trust Administrator") and Calmco Servicing L.P., as a special servicer (in
such capacity, a "Special Servicer"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is to
be made in reliance upon an exemption from the Securities Act and such laws,
in order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer and (i) deliver a
letter in substantially the form of either [Exhibit K or Exhibit l] to the
Agreement or (ii) there shall be delivered to the Trust Administrator at the
expense of the transferor an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Securities Act. In the event that such a
transfer is to be made within three years from the date of the initial
issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Securities Act)
to the Trustee and the Trust Administrator an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Trust Administrator and the Depositor against
any liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws.
[Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Certificate shall be made unless the Trustee and the Trust Administrator shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the Trust
Administrator, to the effect that such transferee is not an employee benefit
plan subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such transfer, which representation letter
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund, (ii) if the purchaser is an insurance company, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person
acting on behalf of any such plan or arrangement, or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the Trust
Administrator to the effect that the purchase or holding of such Certificate
will not result in the assets of the Trust Fund being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Depositor, the Trustee, the Trust Administrator,
the Servicers or the Special Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Trust Administrator or the Trust Fund. In the event the
representations referred to in the preceding sentence are not furnished, such
representation shall be deemed to have been made to the trustee by the
transferee's acceptance of this certificate, or by any beneficial owner who
purchases an interest in this certificate in book-entry form. In the event
that a representation is violated, or any attempt to transfer this certificate
to a plan or person acting on behalf of a plan or using a plan's assets is
attempted without the delivery to the trustee of the opinion of counsel
described above, the attempted transfer or acquisition of this certificate
shall be void and of no effect.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: May 31, 2001.
THE CHASE MANHATTAN BANK,
as Trust Administrator
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class C-B
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust Administrator
is liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicers, the Sellers,
the Trustee and the Trust Administrator with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trust Administrator upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office or the
office or agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
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 Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, each Servicer, each Seller, the Trustee, the Trust
Administrator and any agent of the Depositor, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Servicers,
the Sellers, the Depositor, the Trustee, the Trust Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Group I Mortgage Loans, the Group II Mortgage Loans, the Group
III Mortgage Loans or the Group IV Mortgage Loans is less than 5% of the
Aggregate Loan Balance of the respective Loan Group as of the Cut-off Date,
Calmco will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans in such respective Group and all property acquired in
respect of the Mortgage Loans of such Group at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund 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.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number ______________, or, if mailed by check, to _____________________
_______________________________________________________________________________
_______________________________________________________________________________
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
EXHIBIT D
[FORM OF CLASS AR CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING
ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR USING THE ASSETS OF THAT PLAN OR
ARRANGEMENT TO EFFECT THAT TRANSFER, OR (B) IF THE TRANSFEREE IS AN INSURANCE
COMPANY, A REPRESENTATION THAT THE TRANSFEREE IS AN INSURANCE COMPANY WHICH IS
PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY
GENERAL ACCOUNT," AS THAT TERM IS DEFINED IN SECTION V(e) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60, OR PTCE 95-60, AND THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60, OR (C) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUST ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
Certificate No. : [1][2]
Cut-off Date : May 1, 2001
First Distribution Date : June 25, 2001
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Pass-Through Rate :
Maturity Date :
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class AR
evidencing a percentage interest in the distributions allocable to the
Class AR Certificates with respect to a Trust Fund consisting primarily
of a pool of adjustable rate conventional mortgage loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Servicers, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Credit Suisse First Boston Corporation, is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, DLJ Mortgage Capital,
Inc., as a seller (in such capacity, a "Seller"), Washington Mutual Mortgage
Securities Corp., as a seller (in such capacity, a "Seller") and a servicer
(in such capacity, a "Servicer"), Bank One, National Association, as trustee
(the "Trustee"), The Chase Manhattan Bank, as trust administrator (the "Trust
Administrator") and Calmco Servicing L.P., as a special servicer (in such
capacity, a "Special Servicer"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class AR
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trust Administrator in New York, New York.
No transfer of a Class AR Certificate shall be made unless the Trust
Administrator shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such transferee is
not an employee benefit plan subject to Section 406 of ERISA or Section 4975
of the Code, or a person acting on behalf of any such plan or arrangement or
using the assets of any such plan or arrangement to effect such transfer,
which representation letter shall not be an expense of the Trustee, the Trust
Administrator or the Trust Fund or (ii) if the transferee is an insurance
company, a representation that the transferee is an insurance company which is
purchasing this certificate with funds contained in an "insurance company
general account," as that term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60, or PTCE 95-60, and that the purchase and
holding of this certificate are covered under Sections I and II of PTCE 95-60,
or (iii) in the case of any such Class AR Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trust Administrator to the
effect that the purchase or holding of such Class AR Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Depositor, the Trustee, the Trust Administrator, the
Servicers or the Special Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Trust Administrator or the Trust Fund. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class AR
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the Opinion of Counsel satisfactory to the Trust
Administrator as described above shall be void and of no effect.
Each Holder of this Class AR Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class AR Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class AR Certificate may be
transferred without delivery to the Trust Administrator of a transfer
affidavit of the initial owner or the proposed transferee in the form
described in the Agreement, (iii) each person holding or acquiring any
Ownership Interest in this Class AR Certificate must agree to require a
transfer affidavit from any other person to whom such person attempts to
Transfer its Ownership Interest in this Class AR Certificate as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class AR Certificate must agree not to transfer an Ownership
Interest in this Class AR Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class AR Certificate in
violation of such restrictions will be absolutely null and void and will vest
no rights in the purported transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: May 31, 2001.
THE CHASE MANHATTAN BANK,
as Trust Administrator
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class AR
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust Administrator
is liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicers, the Sellers,
the Trustee and the Trust Administrator with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trust Administrator upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office or the
office or agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
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 Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, each Servicer, each Seller, the Trustee, the Trust
Administrator and any agent of the Depositor, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Servicers,
the Sellers, the Depositor, the Trustee, the Trust Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Group I Mortgage Loans, the Group II Mortgage Loans, the Group
III Mortgage Loans or the Group IV Mortgage Loans is less than 5% of the
Aggregate Loan Balance of the respective Loan Group as of the Cut-off Date,
Calmco will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans in such respective Group and all property acquired in
respect of the Mortgage Loans of such Group at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund 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.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number ______________, or, if mailed by check, to _____________________
_______________________________________________________________________________
_______________________________________________________________________________
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
EXHIBIT E
[FORM OF CLASS X CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUST
ADMINISTRATOR (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975
OF THE CODE NOR A PERSON ACTING ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR
USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II)
IF THE PURCHASER IS AN INSURANCE COMPANY, A REPRESENTATION IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
IN THE EVENT THE REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT
FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUST
ADMINISTRATOR BY THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY
BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY
FORM. IN THE EVENT THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO
TRANSFER THIS CERTIFICATE TO A PLAN OR PERSON ACTING ON BEHALF OF A PLAN OR
USING A PLAN'S ASSETS IS ATTEMPTED WITHOUT THE DELIVERY TO THE TRUSTEE OF THE
OPINION OF COUNSEL DESCRIBED ABOVE, THE ATTEMPTED TRANSFER OR ACQUISITION OF
THIS CERTIFICATE SHALL BE VOID AND OF NO EFFECT.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
Certificate No. :
Cut-off Date : May 1, 2001
First Distribution Date : June 25, 2001
Initial Notional Amount of this
Certificate ("Denomination") :
Initial Class Notional Amount of
all Certificates of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class X
evidencing a 100% Percentage Interest in the distributions allocable
to the Class X Certificates with respect to a Trust Fund consisting
primarily of a pool of adjustable rate conventional mortgage loans
(the "Mortgage Loans") secured by first liens on one- to four-family
residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Sellers, the Servicers, the
Trustee or the Trust Administrator referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_____________________________________________],
is the registered owner of the Percentage Interest evidenced by this
Certificate (obtained by dividing the denomination of this Certificate by the
aggregate of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, DLJ Mortgage
Capital, Inc., as a seller (in such capacity, a "Seller"), Washington Mutual
Mortgage Securities Corp., as a seller (in such capacity, a "Seller") and a
servicer (in such capacity, a "Servicer"), Bank One, National Association, as
trustee (the "Trustee"), The Chase Manhattan Bank, as trust administrator (the
"Trust Administrator") and Calmco Servicing L.P., as a special servicer (in
such capacity, a "Special Servicer"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is to
be made in reliance upon an exemption from the Securities Act and such laws,
in order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such Certificateholder's
prospective transferee shall each certify to the Trust Administrator in writing
the facts surrounding the transfer and (i) deliver a letter in substantially
the form of either [Exhibit K or Exhibit l] to the Agreement or (ii) there
shall be delivered to the Trust Administrator at the expense of the transferor
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act. In the event that such a transfer is to be made within
three years from the date of the initial issuance of Certificates pursuant
hereto, there shall also be delivered (except in the case of a transfer
pursuant to Rule 144A of the Securities Act) to the Trustee and the Trust
Administrator an Opinion of Counsel that such transfer may be made pursuant to
an exemption from the Securities Act. The Holder hereof desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Trust
Administrator and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Certificate shall be made unless the Trustee and the Trust Administrator shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the Trust
Administrator, to the effect that such transferee is not an employee benefit
plan subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such transfer, which representation letter
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund, (ii) if the purchaser is an insurance company, a representation that the
purchaser is an insurance company which is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person
acting on behalf of any such plan or arrangement, or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the Trust
Administrator to the effect that the purchase or holding of such Certificate
will not result in the assets of the Trust Fund being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Depositor, the Trustee, the Trust Administrator,
the Servicers or the Special Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Trust Administrator or the Trust Fund. In the event the
representations referred to in the preceding sentence are not furnished, such
representation shall be deemed to have been made to the trustee by the
transferee's acceptance of this certificate, or by any beneficial owner who
purchases an interest in this certificate in book-entry form. In the event
that a representation is violated, or any attempt to transfer this certificate
to a plan or person acting on behalf of a plan or using a plan's assets is
attempted without the delivery to the trustee of the opinion of counsel
described above, the attempted transfer or acquisition of this certificate
shall be void and of no effect.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: May 31, 2001.
THE CHASE MANHATTAN BANK,
as Trust Administrator
By __________________________
Countersigned:
By ___________________________
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class X
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust Administrator
is liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicers, the Sellers,
the Trustee and the Trust Administrator with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trust Administrator upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office or the
office or agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
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 Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, each Servicer, each Seller, the Trustee, the Trust
Administrator and any agent of the Depositor, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Servicers,
the Sellers, the Depositor, the Trustee, the Trust Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Group I Mortgage Loans, the Group II Mortgage Loans, the Group
III Mortgage Loans or the Group IV Mortgage Loans is less than 5% of the
Aggregate Loan Balance of the respective Loan Group as of the Cut-off Date,
Calmco will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans in such respective Group and all property acquired in
respect of the Mortgage Loans of such Group at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund 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.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number ______________, or, if mailed by check, to _____________________
_______________________________________________________________________________
_______________________________________________________________________________
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
EXHIBIT F
[FORM OF CLASS A-P CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No. :
Cut-off Date : May 1, 2001
First Distribution Date : June 25, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate : None
Maturity Date :
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class A-P
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of fixed rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Sellers, the Servicers, the
Trustee or the Trust Administrator referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO, is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as a seller (in
such capacity, a "Seller"), Washington Mutual Mortgage Securities Corp., as a
seller (in such capacity, a "Seller") and a servicer (in such capacity, a
"Servicer"), Bank One, National Association, as trustee (the "Trustee"), The
Chase Manhattan Bank, as trust administrator (the "Trust Administrator") and
Calmco Servicing L.P., as a special servicer (in such capacity, a "Special
Servicer").To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: May 31, 2001.
THE CHASE MANHATTAN BANK,
as Trust Administrator
By _________________________
Countersigned:
By _____________________________
Authorized Signatory of
THE CHASE MANHATTAN BANK,
as Trust Administrator
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11
Class A-P
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-11, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust Administrator
is liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicers, the Sellers,
the Trustee and the Trust Administrator with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trust Administrator upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office or the
office or agency maintained by the Trust Administrator in New York, New York,
accompanied by a written instrument of transfer in form satisfactory to the
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 Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, each Servicer, each Seller, the Trustee, the Trust
Administrator and any agent of the Depositor, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Servicers,
the Sellers, the Depositor, the Trustee, the Trust Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Group I Mortgage Loans, the Group II Mortgage Loans, the Group
III Mortgage Loans or the Group IV Mortgage Loans is less than 5% of the
Aggregate Loan Balance of the respective Loan Group as of the Cut-off Date,
Calmco will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans in such respective Group and all property acquired in
respect of the Mortgage Loans of such Group at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund 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.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number ______________, or, if mailed by check, to _____________________
_______________________________________________________________________________
_______________________________________________________________________________
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
This information is provided by, the assignee named above, or, as its agent.
EXHIBIT G
FORM OF SERVICER INFORMATION
The following information will be e-mailed to the Trust Administrator in
accordance with Section 4.05:
Servicer Loan Number
Trust Loan Number (if applicable)
Scheduled Net Interest
Scheduled Principal
Curtailment Applied
Curtailment Adjustment
Mortgage Rate
Servicing Fee Rate
P&I Payment
Beginning Scheduled Balance
Ending Scheduled Balance
Ending Actual Principal Balance
Due Date
Prepayment in full Principal
Prepayment in full Net Interest
Prepayment in full Penalty
Delinquencies:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
Loss Amounts & Loss Types (i.e., Bankruptcy, Excess, Extraordinary, Deficient
Valuation, Debt Reduction)
Xxxxxxx Xxxxxx
First Security Investor Reporting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Phone No. 000-000-0000
Fax No. 000-000-0000
kknight@fsir. com
Xxxx Xxxxx
Bank One, National Association
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Phone No. 000-000-0000
Fax No. 000-000-0000
xxxx_xxxxx@xxxxxxx.xxx
EXHIBIT H
[Reserved]
EXHIBIT I
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[_________________, 200_]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [__________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the Pooling and Servicing Agreement, the undersigned, as Trustee, hereby
certifies that, except for the exceptions noted on the schedule attached
hereto, it has (a) received an original Mortgage Note with respect to each
Mortgage Loan listed on the Mortgage Loan Schedule and (b) received an
original Mortgage (or a certified copy thereof) with respect to each Mortgage
Loan listed on the Mortgage Loan Schedule in accordance with Section 2.01 of
the Pooling and Servicing Agreement. The Trustee has made no independent
examination of any documents contained in each Mortgage File beyond the review
specifically mentioned above. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the documents delivered in accordance with Section 2.01 of the Pooling and
Servicing Agreement or any of the Mortgage Loans identified in the Mortgage
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized terms used herein without definition shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: _____________________________________
Authorized Representative
EXHIBIT J
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [___________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the above-referenced Pooling and Servicing Agreement the undersigned, as
Trustee, hereby certifies that, except for the exceptions noted on the
schedule attached hereto, as to each Mortgage Loan listed in the Mortgage Loan
Schedule it has reviewed the Mortgage File and has determined that (based
solely on its review of each such documents on its face) (i) all documents
described in clauses (i)-(v) of Section 2.01(b) of the Pooling and Servicing
Agreement are in its possession, (ii) such documents have been reviewed by it
and have not been mutilated, damaged, defaced, torn or otherwise physically
altered and such documents relate to such Mortgage Loan and (iii) each
Mortgage Note has been endorsed and each assignment of Mortgage has been
delivered as provided in Section 2.01 of the Pooling and Servicing Agreement.
The Trustee has made no independent examination of any documents required to
be delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement beyond the review specifically required therein. The Trustee makes
no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents required to be delivered
in accordance with Section 2.01 of the Pooling and Servicing Agreement or any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Authorized Representative
EXHIBIT K
FORM OF REQUEST FOR RELEASE
[date]
To: Bank One, National Association
In connection with the administration of the Mortgage Loans held by
you as Trustee under Pooling and Servicing Agreement dated as of May 1, 2001
among the Credit Suisse First Boston Mortgage Securities Corp., as depositor,
DLJ Mortgage Capital, Inc., as a seller (in such capacity, a "Seller"),
Washington Mutual Mortgage Securities Corp., as a seller (in such capacity, a
"Seller") and a servicer (in such capacity, a "Servicer"), Bank One, National
Association, as trustee (the "Trustee"), The Chase Manhattan Bank, as trust
administrator (the "Trust Administrator") and Calmco Servicing L.P., as a
special servicer (in such capacity, a "Special Servicer"). (the "Pooling and
Servicing Agreement"), the undersigned hereby requests a release of the
Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be credited to
the Certificate Account pursuant to the Pooling and Servicing
Agreement.)
____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price has been
credited to the Certificate Account pursuant to the Pooling and
Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned, except if the Mortgage Loan has been
paid in full or repurchased (in which case the Mortgage File will be retained
by us permanently) when no longer required by us for such purpose.
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
[NAME OF SERVICER]
By: ___________________________________
Name:
Title:
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class AR Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
______________________________
Print Name of Transferor
By: __________________________
Authorized Officer
EXHIBIT M-1
FORM OF INVESTMENT LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) if we are an insurance company,
a representation that we are an insurance company which is purchasing such
Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, (e) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt
from such registration requirements, and if requested, we will at our expense
provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made pursuant
to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and Servicing Agreement.
Very truly yours,
______________________________
Print Name of Transferee
By: __________________________
Authorized Officer
EXHIBIT M-2
FORM OF RULE 144A LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition, or (ii) if an insurance company, we
are purchasing the Certificates with funds contained in an "insurance company
general account" (as defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and our purchase and holding of the
Certificates are covered under Sections I and III of PTCE 95-60, (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold
or otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or require registration
pursuant thereto, nor will act, nor has authorized or will authorize any
person to act, in such manner with respect to the Certificates, (f) we are a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Act ("Rule 144A") and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2, (g) we are aware that the
sale to us is being made in reliance on Rule 144A, and (i) we are acquiring
the Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or
transferred only (A) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (B) pursuant to another
exemption from registration under the Act.
Very truly yours,
_____________________________
Print Name of Transferee
By: _________________________
Authorized Officer
EXHIBIT N
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or
beneficial owner (the "Owner") of the Class AR Certificates (the "Class AR
Certificates")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States],
on behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section 860E(e)(5)
of the Internal Revenue Code of 1986, as amended (the "Code"), (ii) will
endeavor to remain other than a disqualified organization for so long as it
retains its ownership interest in the Class AR Certificates, and (iii) is
acquiring the Class AR Certificates for its own account. A "Permitted
Transferee" is any person other than a "disqualified organization". (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class AR Certificates to disqualified organizations under the
Code; (ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class AR Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, if a significant purpose of
the transfer was to enable the transferor to impede the assessment or
collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class AR Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of
an interest in such entity. (For this purpose, a "pass through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the
Transfer of any Class AR Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it
knows or believes that any of the representations contained in such affidavit
and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the
face of the Class AR Certificates and the provisions of Section 6.02 of the
Pooling and Servicing Agreement under which the Class AR Certificates were
issued. The Owner expressly agrees to be bound by and to comply with such
restrictions and provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class AR Certificates
will only be owned, directly or indirectly, by an Owner that is a Permitted
Transferee.
8. That the Owner's Taxpayer Identification Number is ______________.
9. That the Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any State thereof or the District of Columbia, or
an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
10. That no purpose of the Owner relating to the purchase of the
Class AR Certificate by the Owner is or will be to impede the assessment or
collection of tax.
11. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the Class
AR Certificate by the Owner will be to impede the assessment or collection of
tax.
14. The Owner hereby agrees to cooperate with the Trustee and to
take any action required of it by the Code or Treasury regulations thereunder
(whether now or hereafter promulgated) in order to create or maintain the
REMIC status of the Trust Fund.
15. That the Owner
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code") (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate
with "plan assets" of any Plan; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within
the meaning of Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III of PTCE
95-60.
16. The Owner hereby agrees that it will not take any action that
could endanger the REMIC status of the Trust Fund or result in the imposition
of tax on the Trust Fund unless counsel for, or acceptable to, the Trustee has
provided an opinion that such action will not result in the loss of such REMIC
status or the imposition of such tax, as applicable.
17. The Owner has provided financial statements or other financial
information requested by the transferor in connection with the transfer of the
Residual Certificates to permit the transferor to assess the financial
capability of the Owner to pay any such taxes.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors,
by its [Title of Officer] and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ____ day of ___________.
[NAME OF OWNER]
By: ____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to
me that he executed the same as his free act and deed and the free act and
deed of the Owner.
Subscribed and sworn before me this _____ day of ___________________.
______________________________________________
NOTARY PUBLIC
COUNTY OF ____________________________________
STATE OF ____________________________________
My Commission expires the _____day of
__________________, 20____.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[_____________________]
[_____________________]
[_____________________]
Re: [_________________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-___, Class AR (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_____________________ (the "Seller") to ________________________________ (the
"Purchaser") of a _______% Percentage Interest in the above referenced
Certificates, pursuant to Section 6.02 of the Pooling and Servicing Agreement
dated as of May 1, 2001 (the "Pooling and Servicing Agreement") among the
Depositor, DLJ Mortgage Capital, Inc., as a seller (in such capacity, a
"Seller"), Washington Mutual Mortgage Securities Corp., as a seller (in such
capacity, a "Seller") and a servicer (in such capacity, a "Servicer"), Bank
One, National Association, as trustee (the "Trustee"), The Chase Manhattan
Bank, as trust administrator (the "Trust Administrator") and Calmco Servicing
L.P., as a special servicer (in such capacity, a "Special Servicer"). 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, the Trust
Administrator and the Trustee that:
1. No purpose of the Seller relating to sale of the Certificate by
the Seller to the Purchaser is or will be to enable the Seller to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit K. The Seller does not know or believe that
any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee
is not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificate.
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due, and
found no significant evidence to indicate that the Purchaser will not continue
to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificate constitutes a noneconomic residual interest, it (i) understands
that as holder of a noneconomic residual interest it may incur tax liabilities
in excess of any cash flows generated by the interest, and (ii) intends to pay
taxes associated with its holding of the Certificate as they become due.
Very truly yours,
[SELLER]
By: _______________________________________
Name:
Title:
EXHIBIT P
FORM OF ESCROW ACCOUNT CERTIFICATE
[On file]
EXHIBIT Q
FORM OF ESCROW ACCOUNT LETTER
[On file]
EXHIBIT R
FORM OF CERTIFICATE INSURANCE POLICY
EXHIBIT S
FORM OF MGIC PMI POLICY
