Exhibit 99.1
EXECUTION COPY
===============================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
DLJ MORTGAGE CAPITAL, INC.,
Seller,
GREENPOINT MORTGAGE FUNDING, INC.,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
Sellers and Servicers,
OLYMPUS SERVICING, L.P.,
Servicer and Special Servicer,
and
JPMORGAN CHASE BANK,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2002
relating to
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2002-7
=============================================================================
Table of Contents
Page
ARTICLE I DEFINITIONS
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES
SECTION 2.01 Conveyance of Trust Fund. ...........................................35
SECTION 2.02 Acceptance by the Trustee. ..........................................38
SECTION 2.03 Representations and Warranties of the Sellers and Servicers. ........40
SECTION 2.04 Representations and Warranties of the Depositor as
to the Mortgage Loans................................................42
SECTION 2.05 Delivery of Opinion of Counsel in Connection with Substitutions. ....43
SECTION 2.06 Issuance of Certificates. ...........................................43
SECTION 2.07 REMIC Provisions. ...................................................43
SECTION 2.08 Covenants of each Servicer. .........................................48
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01 Servicers to Service Mortgage Loans. ................................50
SECTION 3.02 Subservicing; Enforcement of the Obligations of Subservicers. .......51
SECTION 3.03 Notification of Adjustments. ........................................52
SECTION 3.04 Trustee to Act as Servicer. .........................................52
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account. ................................................53
SECTION 3.06 Establishment of and Deposits to Escrow Accounts; Permitted
Withdrawals from Escrow Accounts; Payments of Taxes, Insurance
and Other Charges. ..................................................56
SECTION 3.07 Access to Certain Documentation and Information Regarding the
Mortgage Loans; Inspections. ........................................58
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and
Certificate Account. ................................................58
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment Insurance
and Mortgage Guaranty Insurance Policy; Claims; Restoration
of Mortgaged Property. ............................................. 60
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements. ..........63
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of Certain
Mortgage Loans. .....................................................65
SECTION 3.12 Trustee and Custodian to Cooperate; Release of Mortgage Files. ......68
i
SECTION 3.13 Documents, Records and Funds in Possession of a Servicer to
be Held for the Trustee. ............................................69
SECTION 3.14 Servicing Fee. ......................................................70
SECTION 3.15 Access to Certain Documentation. ....................................70
SECTION 3.16 Annual Statement as to Compliance. ..................................70
SECTION 3.17 Annual Independent Public Accountants' Servicing Statement;
Financial Statements. ...............................................71
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions Insurance. ....71
SECTION 3.19 Special Serviced Mortgage Loans. ....................................72
ARTICLE IV PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution. .........................................73
SECTION 4.02 Allocation of Losses. ...............................................76
SECTION 4.03 Reserved. ...........................................................76
SECTION 4.04 Monthly Statements to Certificateholders. ...........................76
SECTION 4.05 Servicer to Cooperate. ..............................................78
SECTION 4.06 Reserved. ...........................................................78
SECTION 4.07 Basis Risk Reserve Fund. ............................................78
ARTICLE V ADVANCES BY THE SERVICERS
SECTION 5.01 Advances by the Servicers. ..........................................80
ARTICLE VI THE CERTIFICATES
SECTION 6.01 The Certificates. ...................................................81
SECTION 6.02 Registration of Transfer and Exchange of Certificates. ..............81
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates................... 87
SECTION 6.04 Persons Deemed Owners. ..............................................87
SECTION 6.05 Access to List of Certificateholders' Names and Addresses. ..........87
SECTION 6.06 Maintenance of Office or Agency. ....................................88
SECTION 6.07 Book-Entry Certificates. ............................................88
SECTION 6.08 Notices to Clearing Agency. .........................................89
SECTION 6.09 Definitive Certificates. ............................................89
ii
ARTICLE VII THE DEPOSITOR, THE SELLERS, THE SERVICERS AND THE SPECIAL SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor, the Servicers
and the Special Servicer. ...........................................90
SECTION 7.02 Merger or Consolidation of the Sellers, the Depositor,
the Servicers or the Special Servicer. ..............................90
SECTION 7.03 Limitation on Liability of the Sellers, the Depositor,
the Servicers, the Special Servicer and Others. .....................91
SECTION 7.04 Servicer Not to Resign; Transfer of Servicing. ......................92
SECTION 7.05 Seller and Servicers May Own Certificates. ......................... 92
ARTICLE VIII DEFAULT
SECTION 8.01 Events of Default. ..................................................93
SECTION 8.02 Trustee to Act; Appointment of Successor. ...........................94
SECTION 8.03 Notification to Certificateholders. .................................96
SECTION 8.04 Waiver of Events of Default......................................... 96
ARTICLE IX CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee. ..................................................97
SECTION 9.02 Certain Matters Affecting the Trustee. ..............................98
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans. .............100
SECTION 9.04 Trustee May Own Certificates. ......................................100
SECTION 9.05 Trustee's Fees and Expenses........................................ 101
SECTION 9.06 Eligibility Requirements for Trustee. ..............................101
SECTION 9.07 Resignation and Removal of Trustee. ................................102
SECTION 9.08 Successor Trustee. .................................................102
SECTION 9.09 Merger or Consolidation of Trustee. ................................103
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee.......................103
SECTION 9.11 Office of the Trustee. .............................................104
ARTICLE X [RESERVED]
ARTICLE XI TERMINATION
SECTION 11.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans. ....................................................106
SECTION 11.02 Procedure Upon Optional Termination.................................107
SECTION 11.03 Additional Termination Requirements.................................108
iii
ARTICLE XII MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment. .........................................................109
SECTION 12.02 Recordation of Agreement; Counterparts. ............................110
SECTION 12.03 Governing Law. .....................................................110
SECTION 12.04 Intention of Parties. ..............................................110
SECTION 12.05 Notices. ...........................................................112
SECTION 12.06 Severability of Provisions......................................... 113
SECTION 12.07 Limitation on Rights of Certificateholders. ........................113
SECTION 12.08 Certificates Nonassessable and Fully Paid. .........................114
SECTION 12.09 Protection of Assets. ..............................................114
iv
EXHIBITS
Exhibit A: Form of Class A Certificate...........................................A-1
Exhibit B: Form of Class M Certificate...........................................B-1
Exhibit C: Form of Class B Certificate...........................................C-1
Exhibit D: Form of Class A-IO Certificate........................................D-1
Exhibit E: Form of Class AR Certificate..........................................E-1
Exhibit F: Form of Class X Certificate...........................................F-1
Exhibit G: [Reserved]............................................................G-1
Exhibit H: Servicer Information..................................................H-1
Exhibit I: [Reserved]............................................................I-1
Exhibit J: Form of Initial Certification of Trustee..............................J-1
Exhibit K: Form of Final Certification of Trustee................................K-1
Exhibit L: Form of Request for Release...........................................L-1
Exhibit M: Form of Transferor Certificate........................................M-1
Exhibit N-1: Form of Investment Letter...........................................N-1-1
Exhibit N-2: Form of Rule 144A Letter............................................N-2-1
Exhibit O: Form of Investor Transfer Affidavit and Agreement.....................O-1
Exhibit P: Form of Transfer Certificate..........................................P-1
Exhibit Q-1: Form of Escrow .....................................................Q-1-1
Exhibit Q-2: Form of Escrow......................................................Q-2-1
Exhibit R-1: Form of Collection Account..........................................R-1-1
Exhibit R-2: Form of Collection Account..........................................R-2-1
SCHEDULES
Schedule I: Mortgage Loan Schedule................................................I-1
Schedule IIA: Representations and Warranties of DLJMC..............................IIA-1
Schedule IIB: Representations and Warranties of GreenPoint.........................IIB-1
Schedule IIC: Representations and Warranties of WMMSC..............................IIC-1
Schedule IID: Representations and Warranties of Olympus............................IID-1
Schedule IIIA: Representations and Warranties of DLJMC as to the
DLJMC Mortgage Loans................................................IIIA-1
Schedule IIIB: Representations and Warranties of GreenPoint as to the
GreenPoint Mortgage Loans...........................................IIIB-1
Schedule IIIC: Representations and Warranties of WMMSC as to the
WMMSC Mortgage Loans................................................IIIC-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of February 1,
2002, is hereby executed by and among CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation, as depositor (the "Depositor"), DLJ
Mortgage Capital, Inc. ("DLJMC"), a Delaware Corporation, in its capacity as a
seller (a "Seller"), GREENPOINT MORTGAGE FUNDING, INC. ("GreenPoint"), a New
York corporation, in its capacity as a seller (in such capacity, a "Seller"),
and in its capacity as a servicer (in such capacity, a "Servicer"), WASHINGTON
MUTUAL MORTGAGE SECURITIES CORP. ("WMMSC"), a Delaware corporation, in its
capacity as a seller (in such capacity, a "Seller"), and in its capacity as a
servicer (a "Servicer"), OLYMPUS SERVICING, L.P. ("Olympus"), a Delaware
limited partnership, in its capacity as a servicer (a "Servicer") and in its
capacity as a special servicer (the "Special Servicer") and JPMORGAN CHASE
BANK, a New York Banking Corporation, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby
conveyed to the Trustee in return for the Certificates. The Trust Fund for
federal income tax purposes will consist of three REMICs ("REMIC 1", "REMIC 2"
and the "Master REMIC"). REMIC 1 will consist of all of the assets
constituting the Trust Fund and will be evidenced by the LTA regular interest
and LTB-1 regular interest, the LTB-2 regular interest and the LTB-3 regular
interest (together, the "LTB Interests" and, together with the LTA regular
interest, the "REMIC 1 Interests") which will be uncertificated and will
represent the "regular interests" in REMIC 1 and the R-1 Residual Interest as
the single "residual interest" in REMIC 1.
REMIC 2 will consist of the REMIC 1 Interests and will be
evidenced by the R2A1 regular interest, the R2A2 regular interest, the R2A3
regular interest, the R2A4 regular interest, the R2M1 regular interest, the
R2M2 regular interest and the R2B regular interest (the "REMIC 2 Regular
Interests") and the R-2 Interest as the single "residual interest" in REMIC 2.
The Master REMIC will consist of the REMIC 1 and REMIC 2
Regular Interests and will be evidenced by the Class A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class M-1
Certificates, Class M-2 Certificates and Class B Certificates (which will
represent the "regular interests" in the Master REMIC) and the R-3 Residual
Interest as the single "residual interest" in the Master REMIC. The Class AR
Certificates will represent beneficial ownership of the Class R-1 Residual
Interest, Class R-2 Residual Interest and Class R-3 Residual Interest. The
"latest possible maturity date" for federal income tax purposes of all
interests created hereby will be the Latest Possible Maturity Date.
REMIC 1:
The REMIC 1 Regular Interests, each of which is hereby
designated a REMIC regular interest for federal income tax purposes, shall
have the following initial principal balances, and pass-through rates of
Certificates in the manner set forth in the following table:
1
--------------------------------------------------------------------------------------------------------
REMIC 1 Initial Principal Initial Interest Corresponding Rate Change
Interest Balance Rate Change Date
--------------------------------------------------------------------------------------------------------
LT-A (1) Net WAC Rate N/A
--------------------------------------------------------------------------------------------------------
LTB-1 $12,687,000 Net WAC Rate September 2004
--------------------------------------------------------------------------------------------------------
LTB-2 $3,813,000 Net WAC Rate April 2004
--------------------------------------------------------------------------------------------------------
LTB-3 $3,800,000 Net WAC Rate November 2003
--------------------------------------------------------------------------------------------------------
(1) Principal balance equal to the Mortgage Loans less the Class LT-B Regular Interests.
_______________
On each Distribution Date, all Realized Losses, payments of
principal will be allocated first to Class LT-A until such class is reduced to
zero. All subsequent realized losses and payments of principal will be
allocated to the Class LTB Interest with the highest numerical denomination
until such class is reduced to zero, and then to the Class LTB Interest with
the next highest numerical denomination.
REMIC 2:
The REMIC 2 Regular Interests, each of which is hereby designated a
REMIC regular interest for federal income tax purposes, shall have the
following initial principal balances, pass-through rates and Corresponding
Classes of Certificates in the manner set forth in the following table:
-----------------------------------------------------------------------------------------
Corresponding
REMIC Initial Principal Pass Through Master REMIC
Interests Balance Rate Certificate
-----------------------------------------------------------------------------------------
R2A-1(1) 1/2 Corresponding (2) Class A-1
Master REMIC Class
balance
-----------------------------------------------------------------------------------------
R2A-2(1) 1/2 Corresponding (2) Class A-2
Master REMIC Class
balance
-----------------------------------------------------------------------------------------
R2A-3(1) 1/2 Corresponding (2) Class A-3
Master REMIC Class
balance
-----------------------------------------------------------------------------------------
R2A-4(1) 1/2 Corresponding (2) Class A-4
Master REMIC Class
balance
-----------------------------------------------------------------------------------------
R2M-1(1) 1/2 Corresponding (2) Class M-1
Master REMIC Class
balance
-----------------------------------------------------------------------------------------
R2M-2(1) 1/2 Corresponding (2) Class M-2
MARWE REMIC Class
balance
-----------------------------------------------------------------------------------------
R2B(1) 1/2 Corresponding (2) Class B
Master REMIC Class
balance
-----------------------------------------------------------------------------------------
2
-----------------------------------------------------------------------------------------
Corresponding
REMIC Initial Principal Pass Through Master REMIC
Interests Balance Rate Certificate
-----------------------------------------------------------------------------------------
R2AIO (3) (3) Class A-IO
-----------------------------------------------------------------------------------------
R2-Accrual Interest 1/2 Mortgage Pool
balance plus 1/2 (2) N/a
Overcollateralization
Amount on Closing
Date
-----------------------------------------------------------------------------------------
X-0 X/x X/x X/x
-----------------------------------------------------------------------------------------
(1) These regular interests are designated as the "REMIC 2 Accretion Directed
Classes"
(2) A rate equal to the Net WAC Cap.
On each Distribution Date, 50% of the increase in the
Overcollateralization Amount will be payable as a reduction of the principal
balances of the REMIC 2 Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralization
Amount that is attributable to a reduction in the principal balance of its
Corresponding Class) and will be accrued and added to the principal balance of
the R2-Accrual Interest. All payments of principal generated by the Mortgage
Loans shall be allocated 50% to the R2-Accrual Interest, and 50% to the REMIC
2 Accretion Directed Classes (in an amount equal to 50% of the principal
amounts allocated to their respective Corresponding Classes), until paid in
full. In the event that: (i) 50% of the increase in the Overcollateralization
Amount exceeds (ii) interest accruals on the REMIC 2 Interest for such
Distribution Date, the excess for such Distribution Date (accumulated with all
such excesses for all prior Distribution Dates) will be added to any increase
in the Overcollateralization Amount for purposes of determining the amount of
interest accrual on the REMIC 2 Interest payable as principal on the REMIC 2
Accretion Directed Classes on the next Distribution Date pursuant to the first
sentence of this paragraph. Notwithstanding the above, principal payments
allocated to the Class X Certificates that result in the reduction in the
Overcollateralization Amount shall be allocated to the R2-Accrual Interest
(until paid in full). Realized losses shall be applied so that after all
distributions have been made on each Distribution Date the principal balances
of each of the REMIC 2 Accretion Directed Classes is equal to 50% of the
principal balance of their Corresponding Class, and the REMIC 2 Accrual Class
is equal to 50% of the aggregate principal balance of the Mortgage Pool plus
50% of the Overcollateralization Amount.
Master REMIC:
The following table sets forth characteristics of the Certificates,
each of which, except for the Class R-3 Residual Interest, 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
3
may be issued in a different amount and, in addition, one
residual certificate representing the Tax Matters Person Certificate may be
issued in a different amount):
----------------------------------------------------------------------------------------
Integral
Class Multiples
Principal Pass-Through Minimum in Excess
Balance Rate (per annum) Denomination of Minimum
----------------------------------------------------------------------------------------
Class A-1 $79,673,900 Variable(1) $25,000 $1
Class A-2 $46,440,000 (2) $25,000 $1
Class A-3 $50,160,000 (3) $25,000 $1
Class A-4 $17,131,500 (4) $25,000 $1
Class A-IO(5) (6) (7) $100,000 $1
Class AR $100 6.00% (8) (8)
Class M-1 $4,580,600 (9) $25,000 $1
Class M-2 $4,071,600 (10) $25,000 $1
Class B $1,527,133 (11) $25,000 $1
Class X (12) (13) (8) (8)
----------------------------------------------------------------------------------------
_______________
(1) The initial Pass-Through Rate for the Class A-1 Certificates is 2.12%
per annum. After the first Distribution Date, the Pass-Through Rate on
the Class A-1 Certificates shall be a per annum rate equal to the
lesser of (i) the sum of the Certificate Index and the Certificate
Margin for such Distribution Date and (ii) the applicable Net WAC Cap.
(2) The initial Pass-Through Rate for the Class A-2 Certificates is 5.73%
per annum. After the first Distribution Date, the Pass-Through Rate on
the Class A-2 Certificates shall be a per annum rate equal to the
lesser of (i) 5.73% and (ii) the applicable Net WAC Cap.
(3) The initial Pass-Through Rate for the Class A-3 Certificates is 6.55%
per annum. After the first Distribution Date, the Pass-Through Rate on
the Class A-2 Certificates shall be a per annum rate equal to the
lesser of (i) 6.55% and (ii) the applicable Net WAC Cap.
(4) The initial Pass-Through Rate for the Class A-4 Certificates is 7.10%
per annum. After the first Distribution Date and on or before the
first possible Optional Termination Date, the Pass-Through Rate for
the Class A-4 Certificates shall be a per annum rate equal to the
lesser of (i) 7.10% and (ii) the applicable Net WAC Cap. After the
first possible Optional Termination Date, the Pass-Through Rate for
the Class A-4 Certificates shall be a per annum rate equal to the
lesser of (i) 7.60% and (ii) the applicable Net WAC Cap.
(5) For federal income tax purposes, the Class A-IO Certificates will be
treated as receiving 100% of the interest on the Class R2AIO regular
interest.
(6) The Class A-IO Certificates accrue interest on the Class A-IO Notional
Amount.
(7) On any Distribution Date, the Pass-Through Rate on the Class A-IO
Certificates shall be a per annum rate equal to the lesser of (a) (1)
prior to the Distribution Date in May 2002, the product of (x) 8.00%
and (y) a fraction, the numerator of which is 9.8 and the denominator
of which is 20.3 and (2) on or after the Distribution Date in May
2002, 8.00% and (b) a fraction, expressed as a percentage, (1) the
numerator of which is equal to the product of (x) the Interest
Remittance Amount for such Distribution Date and (y) 12, and (2) the
denominator of which is equal to the Class A-IO Notional Amount for
such Distribution Date.
4
(8) The Class AR and Class X Certificates are issued in minimum Percentage
Interests of 20%.
(9) The initial Pass-Through Rate for the Class M-1 Certificates is 6.75%
per annum. After the first Distribution Date and on or before the
first possible Optional Termination Date, the Pass-Through Rate for
the Class M-1 Certificates shall be a per annum rate equal to the
lesser of (i) 6.75% and (ii) the applicable Net WAC Cap. After the
first possible Optional Termination Date, the Pass-Through Rate for
the Class M-1 Certificates shall be a per annum rate equal to the
lesser of (i) 7.25% and (ii) the applicable Net WAC Cap.
(10) The initial Pass-Through Rate for the Class M-2 Certificates is 6.87%
per annum. After the first Distribution Date and on or before the
first Optional Termination Date, the Pass-Through Rate for the Class
M-2 Certificates shall be a per annum rate equal to the lesser of (i)
6.87% and (ii) the Net WAC Cap. After the first possible Optional
Termination Date, the Pass-Through Rate for the Class M-2 Certificates
shall be a per annum rate equal to the lesser of (i) 7.37% and (ii)
the applicable Net WAC Cap.
(11) The initial Pass-Through Rate for the Class B Certificates is 7.19%
per annum. After the first Distribution Date and on or before the
first possible Optional Termination Date, the Pass-Through Rate for
the Class B Certificates shall be a per annum rate equal to the lesser
of (i) 7.19% and (ii) the applicable Net WAC Cap. After the first
possible Optional Termination Date, the Pass-Through Rate for the
Class B Certificates shall be a per annum rate equal to the lesser of
(i) 7.69% and (ii) the applicable Net WAC Cap.
(12) The Class X Certificates will not have a Class Principal Balance but
will accrue interest on the related Class Notional Amount which is
equal to the Stated Principal Balances of the Mortgage Loans.
(13) The Pass-Through Rate of the Class X Certificates will be the excess
of (i) a rate equal to the Net WAC Cap over (ii) the product of (A)
two and (B) the weighted average Pass-Through Rate of the REMIC 2
Regular Interest with the REMIC 2 Accretion Directed Classes capped at
a rate equal to the Pass-Through Rate on the Corresponding Master
Class Certificate, and the Class R2 Accrual Interest equal to zero.
Until the required amount of overcollateralization exists, amounts
accruing with respect to the Class X Certificates will be distributed
as a principal payments to the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class
M-1 Certificates, Class M-2 Certificates and Class B Certificates and
will be paid to the Class X Certificates (without interest) when
principal payments received from the Mortgage Loans are allowed to
reduce overcollateralization.
Set forth below are designations of Classes of Certificates
to the categories used herein:
Book-Entry Certificates................. All Classes of Certificates other than the
Physical Certificates.
Class A Certificates:................... The Class A-1, Class A-2, Class A-3, Class A-4,
Class A-IO and Class AR Certificates.
Class B Certificates.................... The Class B Certificates.
5
Class M Certificates.................... The Class M-1 and Class M-2 Certificates.
ERISA-Restricted Certificates.......... Residual Certificates; Private Certificates;
and any Certificates that do not satisfy the
applicable ratings requirement under the
Underwriter's Exemption.
LIBOR Certificates...................... The Class A-1 Certificates
Notional Amount Certificates............ Class A-IO and Class X Certificates
Offered Certificates.................... All Classes of Certificates other than the Private
Certificates.
Private Certificates.................... The Class X Certificates.
Physical Certificates................... The Class AR and the Private Certificates.
Rating Agencies......................... Xxxxx'x and S&P.
Regular Certificates.................... All Classes of Certificates other than the
Class AR Certificates.
Residual Certificates................... The Class AR Certificates.
Senior Certificates..................... The Class A and Class AR Certificates.
Subordinate Certificates................ The Class M, Class B and Class X Certificates.
All covenants and agreements made by the Depositor herein
are for the benefit and security of the Certificateholders. The Depositor is
entering into this Agreement, and the Trustee is accepting the trusts created
hereby and thereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged. The principal balance of the
Mortgage Loans as of the Cut-off Date is $203,584,833.61.
6
The parties hereto intend to effect an absolute sale and
assignment of the Mortgage Loans to the Trustee for the benefit of
Certificateholders under this Agreement. However, the Depositor and the
Sellers will hereunder absolutely assign and, as a precautionary matter grant
a security interest, in and to its rights, if any, in the related Mortgage
Loans to the Trustee on behalf of Certificateholders to ensure that the
interest of the Certificateholders hereunder in the Mortgage Loans is fully
protected.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained,
the Depositor, the Sellers, the Servicers, the Special Servicer and the
Trustee agree as follows:
7
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Accepted Servicing Practices: With respect to any Mortgage
Loan, those mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such Mortgage
Loan in the jurisdiction where the related Mortgaged Property is located.
Accrual Period: For any interest bearing Class of
Certificates, other than the LIBOR Certificates, and any Distribution Date,
the calendar month immediately preceding the related Distribution Date, and
with respect to the LIBOR Certificates, the period beginning on the 25th day
of the calendar month immediately preceding such Distribution Date and ending
on the 24th day of the calendar month of such 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 related Collection Period.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Ancillary Income: All income derived from the Mortgage
Loans, other than Servicing Fees, 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, the
excess, if any, of (i) the aggregate Class Principal Balances of the
Certificates (other than the Notional Amount Certificates), after giving
effect to all Realized Losses with respect to the Mortgage Loans during the
Collection Period for such Distribution Date and payments of principal on such
Distribution Date over (ii) the Aggregate Loan Balance 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 appraised value of the
Mortgaged Property based upon the appraisal made at the time of such
refinancing.
8
Assignment and Assumption Agreement: That certain assignment
and assumption agreement dated as of February 1, 2002, by and between DLJ
Mortgage Capital, Inc., as assignor and the Depositor, as assignee, relating
to the Mortgage Loans.
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.ss.ss.101 et seq.).
Basis Risk Pass-Through Rate: For any class of Offered
Certificates, other than the Class A-IO Certificates, and any Distribution
Date, the following per annum pass-through rate:
(i) for the Class A-1 Certificates, the lesser of (1) the
sum of the Certificate Index for that Distribution Date plus the
Certificate Margin and (2) the Net Funds Cap;
(ii) for the Class A-2 Certificates, the lesser of (a) 5.73%
and (2) the Net Funds Cap;
(iii) for the Class A-3 Certificates, the lesser of (a) 6.55%
and (2) the Net Funds Cap;
(iv) for the Class A-4 Certificates, (a) on or before the
first possible Optional Termination Date, the lesser of (1) 7.10% and
(2) the Net Funds Cap; and (b) after the first possible Optional
Termination Date, the lesser of (1) 7.60% and (2) the Net Funds Cap;
(v) for the Class M-1 Certificates, (a) on or before the
first possible Optional Termination Date, the lesser of (1) 6.75% and
(2) the Net Funds Cap; and (b) after the first possible Optional
Termination Date, the lesser of (1) 7.25% and (2) the Net Funds Cap;
(vi) for the Class M-2 Certificates, (a) on or before the
first possible Optional Termination Date, the lesser of (1) 6.87% and
(2) the Net Funds Cap; and (b) after the first possible Optional
Termination Date, the lesser of (1) 7.37% and (2) the Net Funds Cap;
and
(vii) for the Class B Certificates, (a) on or before the
first possible Optional Termination Date, the lesser of (1) 7.19% and
(2) the Net Funds Cap; and (b) after the first possible Optional
Termination Date, the lesser of (1) 7.69% and (2) the Net Funds Cap.
Basis Risk Reserve Fund: The separate Eligible Account
created and initially maintained by the Trustee pursuant to Section 4.07 in
the name of the Trustee, for the benefit of the Certificateholders and
designated "JPMorgan Chase Bank in trust for registered holders of
9
Credit Suisse First Boston Mortgage Securities Corp. Mortgage Pass-Through
Certificates, Series 2002-7." Funds in the Basis Risk Reserve Fund shall be
held in trust for the Certificateholders for the uses and purposes set forth
in this Agreement.
Basis Risk Shortfall: For any Class of Offered Certificates,
other than the Class A-IO Certificates, and any Distribution Date, the sum of
(i) the excess, if any, of the related Current Interest
calculated on the basis of the related Basis Risk Pass-Through Rate
over the related Current Interest for the applicable Distribution
Date
(ii) any Basis Risk Shortfall remaining unpaid from prior
Distribution Dates; and
(iii) 30 days interest on the amount in clause (ii) calculated
on the basis of the related Basis Risk Pass Through Rate.
Beneficial Holder: A Person holding a beneficial interest in
any Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate.
Book-Entry Certificates: As specified in the Preliminary
Statement.
Book-Entry Form: Any Certificate held through the facilities
of the Depository.
Business Day: Any day other than (i) a Saturday or a Sunday,
or (ii) a day on which banking institutions in New York or the state in which
the office of any Servicer or the Corporate Trust Office of the Trustee are
located are authorized or obligated by law or executive order to be closed.
Carryforward Interest: For any Class of Offered
Certificates, and any 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) except with respect to the Class A-IO Certificates, interest on such
amount for the related Accrual Period at the applicable Pass-Through Rate.
Cash Remittance Date: With respect to any Distribution Date
and (A) Olympus or GreenPoint, the 7th calendar day preceding such
Distribution Date, or if such 7th calendar day is not a Business Day, the
Business Day immediately preceding such 7th calendar day or (B) WMMSC, by
12:00 noon New York City time on the Business Day immediately preceding such
Distribution Date.
Certificate: Any Certificates executed and authenticated by
the Trustee for the benefit of the Certificateholders in substantially the
form or forms attached as Exhibits A through F hereto.
10
Certificate Account: The separate Eligible Account created
and maintained with the Trustee, or any other bank or trust company acceptable
to the Rating Agencies which is incorporated under the laws of the United
States or any state thereof pursuant to Section 3.05, which account shall bear
a designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Trustee, on behalf of the Certificateholders or
any other account serving a similar function acceptable to the Rating
Agencies. Funds in the Certificate Account may (i) be held uninvested without
liability for interest or compensation thereon or (ii) be invested at the
direction of the Trustee in Eligible Investments and reinvestment earnings
thereon (net of investment losses) shall be paid to the Trustee. Funds
deposited in the Certificate Account (exclusive of the 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 Applied Loss Amounts
previously made or allocated with respect thereto.
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 Trustee after consultation with DLJMC), the rate
will be the Reference Bank Rate. If no such quotations can be obtained and no
Reference Bank Rate is available, the Certificate Index will be the
Certificate Index applicable to the preceding Distribution Date. On the
Interest Determination Date immediately preceding each Distribution Date, the
Trustee shall determine the Certificate Index for the Accrual Period
commencing on such Distribution Date and inform each Servicer of such rate.
Certificate Margin: As to the Class A-1 Certificates, 0.26%.
Certificate Register: The register maintained pursuant to
Section 6.02(a) hereof.
Certificateholder or Holder: The Person in whose name a
Certificate is registered in the Certificate Register.
Class: All Certificates bearing the same class designation
as set forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary
Statement.
Class A-IO Notional Amount: For any Distribution Date, an
amount equal to the lesser of (a)(i) prior to the Distribution Date in
November 2003, $20,300,000; (ii) on or after the Distribution Date in November
2003 but prior to the Distribution Date in April 2004, $16,500,000; (iii) on
or after the Distribution Date in April 2004 but prior to the Distribution
Date in September 2004, $12,687,000; and (iv) on or after the Distribution
Date in September
11
2004, $0, and (b) the Aggregate Loan Balance for the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, the
Aggregate Loan Balance as of the Cut-off Date).
Class AR Certificates: As specified in the Preliminary
Statement.
Class B Certificates: As specified in the Preliminary
Statement.
Class B Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the aggregate Class Principal Balances of the Class A,
Class AR, Class M-1 and Class M-2 Certificates, in each case, after giving
effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class B Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 99.0% and (ii) the
Aggregate Loan Balance for such Distribution Date and (B) the amount, if any,
by which (i) the Aggregate Loan Balance for such Distribution Date exceeds
(ii) 0.50% of the Aggregate Loan Balance as of the Cut-off Date.
Class M-1 Principal Payment Amount: For any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, will be the amount, if any,
by which (x) the sum of (i) the aggregate Class Principal Balances of the
Class A and Class AR Certificates, in each case, after giving effect to
payments on such Distribution Date and (ii) the Class Principal Balance of the
Class M-1 Certificates immediately prior to such Distribution Date exceeds (y)
the lesser of (A) the product of (i) 93.50% and (ii) the Aggregate Loan
Balance for such Distribution Date and (B) the amount, if any, by which (i)
the Aggregate Loan Balance for such Distribution Date exceeds (ii) 0.50% of
the Aggregate Loan Balance as of the Cut-off Date.
Class M-2 Principal Payment Amount: For any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event has not
occurred with respect to such Distribution Date, will be the amount, if any,
by which (x) the sum of (i) the aggregate Class Principal Balances of the
Class A, Class AR and Class M-1 Certificates, in each case, after giving
effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class M-2 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 97.50% and (ii) the
Aggregate Loan Balance for such Distribution Date and (B) the amount, if any,
by which (i) the Aggregate Loan Balance for such Distribution Date exceeds
(ii) 0.50% of the Aggregate Loan Balance as of the Cut-off Date.
Class Notional Amount: Either of the Class A-IO Notional
Amount or Class X Notional Amount, as applicable.
Class Principal Balance: With respect to any Class of
Certificates, other than the Notional Amount Certificates, and as to any date
of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class X Distributable Amount: With respect to any
Distribution Date and the Class X Certificates, the excess of (i) the sum of
(x) the amount of interest accrued during the related Accrual Period at the
related Pass-Through Rate on the Class X Notional Amount for
12
such Distribution Date and (y) the Overcollateralization Release Amount, if
any, for such Distribution Date over (ii) any amounts distributed on that
Distribution Date pursuant to Section 4.01(d)(i)-(ix).
Class X Notional Amount: With respect to any Distribution
Date and the Class X Certificates, an amount equal to the aggregate Stated
Principal Balances of the Mortgage Loans as of the first day of the related
Collection Period.
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: February 28, 2002.
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, the lesser of (i) the sum of (a) one
twelfth (1/12) of 0.04% of the aggregate Stated Principal Balance of the WMMSC
Serviced Mortgage Loans, as of the Due Date in the month of such Distribution
Date, (b) Payoff Earnings in respect of the WMMSC Serviced Mortgage Loans for
such Distribution Date and (c) aggregate Payoff Interest in respect of the
WMMSC Serviced Mortgage Loans for such Distribution Date and (ii) the
aggregate Prepayment Interest Shortfall allocable to Payoffs for the WMMSC
Serviced Mortgage Loans. For any Distribution Date and the GreenPoint Serviced
Mortgage Loans, the lesser of (i) 50% of the aggregate Servicing Fee payable
to GreenPoint in respect of the GreenPoint Serviced Mortgage Loans for such
Distribution Date and (ii) the aggregate Prepayment Interest Shortfall with
respect to the GreenPoint Serviced Mortgage Loans. For any Distribution Date
and the Olympus Serviced Mortgage Loans, the lesser of (i) the aggregate
Servicing Fee payable to Olympus in respect of the Olympus Serviced Mortgage
Loans for such Distribution Date and (ii) the aggregate Prepayment Interest
Shortfall with respect to the Olympus Serviced Mortgage Loans.
Corporate Trust Office: With respect to the Trustee, the
designated office of the Trustee at which at any particular time its corporate
trust business with respect to this Agreement shall be administered, which
office at the date of the execution of this Agreement is located at 000 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured
Finance Services, CSFB 2002-7, except for purposes of Section 6.06, such term
shall mean the office or agency of the Trustee located at 00 Xxxxx Xxxxxx, 000
Xxxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
13
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.
Current Interest: For any Class of Certificates, other than
the Class X Certificates, and any 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 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, between a custodian and the Trustee, 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 Trustee or as otherwise
specified therein. The Trustee shall remain at all times responsible under the
terms of this Agreement, notwithstanding the fact that certain duties have
been assigned to a Custodian.
Cut-off Date: February 1, 2002.
Cut-off Date Pool Principal Balance: $203,584,833.61.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Stated Principal Balance thereof as of the close of business on the Cut-off
Date.
Data Remittance Date: With respect to any Distribution Date,
the 10th calendar day of the month in which such Distribution Date occurs, or
if such 10th day is not a Business Day, the Business Day immediately following
such 10th day; provided, however, that with respect to WMMSC, the Data
Remittance Date shall be no later than twelve noon, five Business Days before
the related Distribution Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of
principal.
14
Deferred Amount: For any Class of Subordinate Certificates
(other than the Class X Certificates), and any Distribution Date, will equal
the amount by which (x) the aggregate of the Applied Loss Amounts previously
applied in reduction of the Class Principal Balance thereof exceeds (y) the
aggregate of amounts previously paid in reimbursement thereof pursuant to
Section 4.01(d).
Deficient Valuation: With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding indebtedness under the Mortgage Loan, or
that results in a permanent forgiveness of principal, which valuation in
either case results from a proceeding under the Bankruptcy Code.
Definitive Certificate: As defined in Section 6.07.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Delinquency Rate: With respect to any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the aggregate
outstanding principal balance of all Mortgage Loans 60 or more days delinquent
(including all foreclosures, bankruptcies and REO Properties) as of the close
of business on the last day of the prior month, and the denominator of which
is the Aggregate Loan Balance as of the close of business on the last day of
such month.
Denomination: With respect to each Certificate, the amount
set forth on the face thereof as the "Initial Certificate Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if
neither of the foregoing, the Percentage Interest appearing on the face
thereof.
Depositor: Credit Suisse First Boston Mortgage Securities
Corp., a Delaware corporation, or its successor in interest.
Depository Agreement: The Letter of Representation dated as
of the Closing Date by and among DTC, the Depositor and the Trustee.
Determination Date: With respect to each Distribution Date,
the 10th day of the calendar month in which such Distribution Date occurs or,
if such 10th day is not a Business Day, the Business Day immediately
succeeding such Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership"
15
within the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class 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 March 25, 2002.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation,
and its successors and assigns.
DLJMC Mortgage Loans: The Mortgage Loans identified as such
on the Mortgage Loan Schedule, for which DLJMC is the applicable Seller.
DTC: The Depository Trust Company.
Due Date: With respect to each Mortgage Loan and any
Distribution Date, the date on which Scheduled Payments on such Mortgage Loan
are due which is either the first day of the month of such Distribution Date,
or if Scheduled Payments on such Mortgage Loan are due on a day other than the
first day of the month, the date in the calendar month immediately preceding
the Distribution Date on which such Scheduled Payments are due, exclusive of
any days of grace.
Eligible Account: Either (i) an account or accounts
maintained with a federal or state chartered depository institution or trust
company acceptable to the Rating Agencies or (ii) an account or accounts the
deposits in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short term debt obligations of
such holding company) have been rated by each Rating Agency in its highest
short-term rating category, or (iii) a segregated trust account or accounts
(which shall be a "special deposit account") maintained with the Trustee, or
any other federal or state chartered depository institution or trust company,
acting in its fiduciary capacity, in a manner acceptable to the Trustee and
the Rating Agencies. Eligible Accounts may bear interest.
Eligible Institution: An institution having the highest
short-term debt rating, and one of the two highest long-term debt ratings of
the Rating Agencies or the approval of the Rating Agencies.
Eligible Investments: Any one or more of the obligations and
securities listed below:
16
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 the equivalent) or higher by the Rating Agencies;
2. federal funds, demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository
institution or trust company incorporated or organized under
the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or
state banking authorities, so long as at the time of such
investment or contractual commitment providing for such
investment the commercial paper or other short-term debt
obligations of such depository institution or trust company
(or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt obligations of such
holding company) are rated in one of two of the highest
ratings by each of the Rating Agencies, and the long-term debt
obligations of such depository institution or trust company
(or, in the case of a depository institution or trust company
which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated
in one of two of the highest ratings, by each of the Rating
Agencies;
3. repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and
entered into with a depository institution or trust company
(acting as a principal) rated A or higher by the Rating
Agencies; provided, however, that collateral transferred
pursuant to such repurchase obligation must be of the type
described in clause (i) above and must (A) be valued daily at
current market price plus accrued interest, (B) pursuant to
such valuation, be equal, at all times, to 105% of the cash
transferred by the Trustee in exchange for such collateral,
and (C) be delivered to the Trustee or, if the Trustee is
supplying the collateral, an agent for the Trustee, in such a
manner as to accomplish perfection of a security interest in
the collateral by possession of certificated securities;
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;
17
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 Moody's
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 and any such funds that are managed by a Servicer,
the Trustee or their respective Affiliates or for a Servicer,
the Trustee 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.
18
Expense Fee Rate: As to each Mortgage Loan, the sum of the
Trustee Fee Rate, the related Servicing Fee Rate and any primary mortgage
guaranty insurance fee rate, if applicable.
Expense Fees: As to each Mortgage Loan, the sum of the
Trustee Fee, the related Servicing Fee and any primary mortgage guaranty
insurance premium, as applicable.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created and existing under
Title III of the Emergency Home Finance Act of 1970, as amended, or any
successor thereto.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, and its successors and assigns.
GreenPoint Mortgage Loans:The Mortgage Loans identified as
such on the Mortgage Loan Schedule, for which GreenPoint is the applicable
Seller.
GreenPoint Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which GreenPoint is the
applicable Servicer.
Indirect Participants: Entities, such as banks, brokers,
dealers and trust companies, that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly.
Initial Class Principal Balance: As set forth in the
Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included
in the Trust Fund, any Mortgage Guaranty Insurance Policy, any standard hazard
insurance policy, flood insurance policy or title insurance policy, including
all riders and endorsements thereto in effect, including any replacement
policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds of any primary mortgage
guaranty insurance policies and any other Insurance Policies with respect to
the Mortgage Loans, to the extent such proceeds are not applied to the
restoration of the related Mortgaged Property or released to the Mortgagor in
accordance with the 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.
19
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, 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 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 Expense Fees with respect to such
Mortgage Loans and (y) unreimbursed Advances and other amounts due to the
applicable Servicer and the Trustee 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 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 and (4) all Net Liquidation Proceeds and any other recoveries (net
of unreimbursed Advances, Servicing Advances and expenses, to the extent
allocable to interest, and unpaid Expense Fees) collected during the related
Collection Period, to the extent allocable to interest.
Interest Shortfall: For any Distribution Date, an amount
equal to the aggregate shortfall, if any, in collections of interest (adjusted
to the related Net Mortgage Rate) on Mortgage Loans resulting from (a)
Principal Prepayments received during the related Prepayment Period after
giving effect to the Compensating Interest Payment for such Distribution Date
and (b) interest payments on certain of the Mortgage Loans being limited
pursuant to the provisions of the Soldiers' and Sailors' Civil Relief Act of
1940.
Investment Account: The commingled account (which shall be
commingled only with investment accounts related to series of pass-through
certificates with a class of certificates which has a rating equal to the
highest of the Ratings of the Certificates) maintained by WMMSC in the trust
department of the Investment Depository pursuant to Section 3.05.
Investment Depository: JPMorgan Chase Bank, New York, New
York or another bank or trust company designated from time to time by WMMSC.
The Investment Depository shall at all times be an Eligible Institution.
LIBOR Business Day: Any day other than (i) a Saturday or a
Sunday or (ii) a day on which banking institutions in the State of New York or
in the City of London, England are required or authorized by law to be closed.
LIBOR Certificates: As specified in the Preliminary
Statement.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property) which was
liquidated in the calendar month preceding the month of such Distribution Date
and as to which 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.
20
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 Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property related to a Mortgage Loan and any other proceeds
received in connection with an REO Property.
Loan-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.
LTB Regular Interests: The Class LTB-1 regular interest, the
Class LTB-2 regular interest, and the Class LTB-3 regular interest.
Master REMIC: As described in the Preliminary Statement.
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 payments
pursuant to items (i) through (iv) in the distribution thereof, pursuant to
Section 4.01(a) and the Principal Payment Amount remaining after application
of payments pursuant to items (i) through (iv) of Section 4.01(b) or 4.01(c),
as applicable.
Moody's: Xxxxx'x Investors Service, Inc. or any successor
thereto.
Mortgage: With respect to a Mortgage Loan, the mortgage,
deed of trust or other instrument creating a first lien on a fee simple or
leasehold estate in real property securing a Mortgage Note.
21
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 and sale agreement dated as of February 28, 2002, by and between
WMMSC and the Depositor, relating to the WMMSC Mortgage 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 related Seller to reflect the addition of
Qualified Substitute Mortgage Loans and the purchase of Mortgage Loans
pursuant to Section 2.02 or 2.03) transferred to the Trustee as part of the
Trust Fund and from time to time subject to this Agreement, attached hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan and applicable Servicer:
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;
22
10. the original principal amount of the Mortgage Loan;
11. the principal balance of the Mortgage Loan as of the
close of business on the Cut-off Date, after deduction
of payments of principal due on or before the Cut-off
Date whether or not collected;
12. a code indicating the purpose of the Mortgage Loan
(i.e., purchase, rate and term refinance, equity
take-out refinance);
13. whether such Mortgage Loan has a Prepayment Penalty;
14. the Expense Fee Rate as of the Cut-off Date;
15. the Servicing Fee Rate (which may be disclosed on the
Mortgage Loan Schedule in two parts identified as
"Lender Fee" and "Mgmt Fee");
16. whether such Mortgage Loan is a DLJMC Mortgage Loan, a
WMMSC Mortgage Loan or a GreenPoint Mortgage Loan; and
17. whether such Mortgage Loan is a GreenPoint Serviced
Mortgage Loan, an Olympus Serviced Mortgage Loan or a
WMMSC Serviced 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.
Net Excess Spread: With respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is equal to the
excess of (x) the Aggregate Loan Balance for the immediately preceding
Distribution Date, multiplied by the Net WAC Rate over (y) the Interest
Remittance Amount for such Distribution Date, and the denominator of which is
an amount equal to the Aggregate Loan Balance for the immediately preceding
Distribution Date, divided by 12.
23
Net Funds Cap: For any Distribution Date, will be a per
annum rate equal to (a) a fraction, expressed as a percentage, the numerator
of which is the product of (1) the Interest Remittance Amount for such date
and (2) 12, and the denominator of which is the Aggregate Loan Balance for the
immediately preceding Distribution Date (or, in the case of the first
Distribution Date, the Aggregate Loan Balance as of the Cut-off Date).
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 Cap: For any Distribution Date prior to the
Distribution Date in September 2004, a per annum rate equal to (a) the Net
Funds Cap minus (b) the Pass-Through Rate on the Class A-IO Certificates
multiplied by a fraction, the numerator of which is the Class A-IO Notional
Amount immediately prior to such Distribution Date and the denominator of
which is the Aggregate Loan Balance for the immediately preceding Distribution
Date (or, in the case of the first Distribution Date, the Aggregate Loan
Balance as of the Cut-off Date). For any Distribution Date on or after the
Distribution Date in September 2004, a per annum rate equal to the Net Funds
Cap.
Net WAC Rate: As to any Distribution Date, a rate equal to
the weighted average of the Net Mortgage Rates on the Mortgage Loans 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. In addition, for any purpose for which the Net WAC
Rate is calculated, the interest rate on the Mortgage shall be appropriately
adjusted to account for the difference between any counting convention used
with respect to the Mortgage Loans and any counting convention used with
respect to a REMIC regular interest.
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 such Servicer, will not be ultimately
recoverable by such 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, the
Special Servicer, a Sub-Servicer or the Trustee, as the case may be, and
delivered to the Depositor, the Sellers, the Special Servicer, the Servicers
or the Trustee, as required by this Agreement.
24
Olympus: Olympus Servicing, L.P., a Delaware limited
partnership, and its successors and assigns.
Olympus Serviced Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule, for which Olympus is the
applicable Servicer, and if Olympus is the Special Servicer, any Special
Serviced Mortgage Loans.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Depositor or a Servicer, reasonably acceptable to the Trustee.
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 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 10.01.
Optional Termination Date: As defined in Section 10.01.
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 Balance
for such Distribution Date exceeds (y) the aggregate Class Principal Balance
of the 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 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 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 Certificates, exceeds (2) the
Targeted Overcollateralization Amount for such date.
25
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, on which Payoff was received by WMMSC during the
related Prepayment Period, the aggregate of the interest earned by WMMSC from
investment of each such Payoff from the date of receipt of such Payoff until
the Business Day immediately preceding the related Distribution Date (net of
investment losses).
Payoff Interest: For any Distribution Date with respect to
each WMMSC Serviced Mortgage Loan for which a Payoff was received on or after
the first calendar day of the month of such Distribution Date and before the
15th calendar day of such month, an amount of interest thereon at the
applicable Net Mortgage Rate from the first day of such month through the day
of receipt thereof; to the extent (together with Payoff Earnings and the
portion of the aggregate Servicing Fee described in clause (i) of the
definition of Compensating Interest Payment payable to WMMSC) not required to
be distributed as Compensating Interest Payment on such Distribution Date,
Payoff Interest shall be payable to WMMSC 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.
26
Prepayment Interest Shortfall: As to any Mortgage Loan,
Distribution Date and Principal Prepayment (other than a Payoff on a WMMSC
Serviced Mortgage Loan, during the period from and including the first day to
and including the 14th day of the month of such Distribution Date) received
during the related Prepayment Period, the difference between (i) one full
month's interest at the applicable Mortgage Rate (giving effect to any
applicable Relief Act Reduction, Debt Service Reduction and Deficient
Valuation), as reduced by the Servicing Fee Rate and Trustee Fee Rate, on the
outstanding principal balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest actually received with respect to
such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty: With respect to any Mortgage Loan, any
penalty required to be paid if the Mortgagor prepays such Mortgage Loan as
provided in the related Mortgage Note or Mortgage.
Prepayment Period: With respect to each Distribution Date
and each Payoff with respect to a WMMSC Serviced Mortgage Loan, the related
"Prepayment Period" will commence on the 15th day of the month preceding the
month in which the related Distribution Date occurs (or, in the case of the
first Distribution Date, commencing on the Cut-off Date) and will end on the
14th day of the month in which such Distribution Date occurs. With respect to
each Distribution Date and each Payoff with respect to any other Mortgage
Loans and all Curtailments, the related "Prepayment Period" will be the
calendar month preceding the month in which the related Distribution Date
occurs.
Principal Payment Amount: For any Distribution Date, 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 Remittance Amount: For any Distribution Date, an
amount equal to the sum of (1) all principal collected (other than Payaheads)
or advanced in respect of Scheduled Payments on the Mortgage Loans during the
related Collection Period (less unreimbursed Advances, Servicing Advances and
other amounts due to the Servicers and the Trustee with respect to the
Mortgage Loans, to the extent allocable to principal) and the principal
portion of Payaheads previously received and intended for application in the
related Collection Period, (2) all Principal Prepayments received during the
related Prepayment Period, (3) the outstanding principal balance of each
Mortgage Loan that was repurchased by a Seller or a Servicer or purchased by
Olympus, during the related Collection Period, (4) the portion of any
Substitution Adjustment Amount paid with respect to any Deleted Mortgage Loans
during the related Collection Period allocable to principal and (5) all Net
Liquidation Proceeds and any other recoveries (net of unreimbursed Advances,
Servicing Advances and other expenses, to the extent allocable to principal)
collected during the related Collection Period, to the extent allocable to
principal.
Private Certificates: As set forth in the
Preliminary Statement.
27
Prospectus: The Prospectus, dated October 23, 2001, relating
to the offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the 1933 Act with respect to the offer and sale of the offered
certificates.
Prospectus Supplement: The Prospectus Supplement, dated
February 26, 2002, relating to the offering of the Offered Certificates in the
form in which it was or will be filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the 1933 Act with respect to the
offer and sale of the offered certificates.
Purchase Price: With respect to any Mortgage Loan required
to be purchased by a Seller pursuant to Section 2.02 or 2.03 or purchased at
the option of the Special Servicer pursuant to Section 3.11(g), the sum of (i)
100% of the unpaid principal balance of the Mortgage Loan on the date of such
purchase, (ii) accrued and unpaid interest on the Mortgage Loan at the
applicable Mortgage Rate (reduced by the related Servicing Fee Rate, if the
purchaser is also the Servicer thereof) from the date through which interest
was last paid by the Mortgagor to the Due Date in the month in which the
Purchase Price is to be distributed to Certificateholders and (iii) in the
case of a Mortgage Loan purchased by a Seller, the amount of any unreimbursed
Servicing Advances made by a Servicer, other than such Seller, with respect to
such Mortgage Loan or, in the case of a Mortgage Loan purchased by the Special
Servicer, any unreimbursed Servicing Advances payable to any Servicer other
than Olympus. With respect to any Mortgage Loan required or allowed to be
purchased, the related Servicer or the related Seller, as applicable, shall
deliver to the Trustee an Officer's Certificate as to the calculation of the
Purchase Price.
Qualified Insurer: A mortgage guaranty insurance company
duly qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Qualified Substitute Mortgage Loan: A Mortgage Loan
substituted by a Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, as confirmed in a Request for Release, substantially in the
form of Exhibit L (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution
(or, in the case of a substitution of more than one mortgage loan for a
Deleted Mortgage Loan, an aggregate principal balance), not in excess of, and
not more than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (iv)
have a remaining term to maturity no greater than (and not more than one year
less than that of) the Deleted
28
Mortgage Loan; and (v) comply with each representation and warranty set forth
in Section 2.03(b).
Rating Agency: Xxxxx'x or S&P, or any successor to either of
them.
Ratings: As of any date of determination, the ratings, if
any, of the Certificates as assigned by the Rating Agencies.
Realized Loss: With respect to any Mortgage Loan, (1) with
respect to each Liquidated Mortgage Loan, an amount (not less than zero or
more than the Stated Principal Balance of the Mortgage Loan) as of the date of
such liquidation, equal to (i) the Stated Principal Balance of the Liquidated
Mortgage Loan as of the date of such liquidation, plus (ii) interest at the
applicable Net Mortgage Rate from the related Due Date as to which interest
was last paid or advanced (and not reimbursed) to Certificateholders up to the
related Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Net Liquidation Proceeds, if any, received
during the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan; (2) for any Mortgage Loan subject to a Deficient
Valuation, the excess of the Stated Principal Balance of that Mortgage Loan
over the principal amount as reduced in connection with the proceedings
resulting in the Deficient Valuation; or (3) for any Debt Service Reduction
Mortgage Loan, the present value of all monthly Debt Service Reductions on the
Mortgage Loan, assuming that the mortgagor pays each Scheduled Payment on the
applicable Due Date and that no Principal Prepayments are received on the
Mortgage Loan, discounted at the applicable Mortgage Rate.
Record Date: With respect to any Distribution Date and the
Certificates other than the LIBOR Certificates held in Book-Entry Form, the
close of business on the last Business Day of the month preceding the month in
which the applicable Distribution Date occurs. With respect to the LIBOR
Certificates that are not Physical Certificates and any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date; provided, however, that following the date on which Definitive
Certificates for a Class of LIBOR Certificates are available pursuant to
Section 5.02, the Record Date shall be the close of business on the last
Business Day of the calendar month immediately preceding the month of such
Distribution Date.
Reference Bank Rate: As to any Accrual Period relating to
the 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 Trustee
after consultation with DLJMC, as of 11:00 A.M., New York City time, on such
date for loans in U.S. Dollars to leading European banks for a period of one
month in amounts approximately equal to the
29
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 Trustee after consultation with
DLJMC.
Registration Statement: That certain registration statement
on Form S-3, as amended (Registration No. 333-61840), relating to the offering
by the Depositor from time to time of its Mortgage-Backed Pass-Through
Certificates (Issuable in Series) as heretofore declared effective by the
Securities and Exchange Commission.
Regular Certificates: All of the Certificates other than the
Class AR Certificates.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of
1940, as amended.
Relief Act Reductions: With respect to any Distribution Date
and any Mortgage Loan as to which there has been a reduction in the amount of
interest collectible thereon for the most recently ended calendar month as a
result of the application of the Relief Act, the amount, if any, by which (i)
interest collectible on such Mortgage Loan for the most recently ended
calendar month is less than (ii) interest accrued thereon for such month
pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit", within
the meaning of Section 860D of the Code. Reference herein to REMIC refers to
the Master REMIC and the Subsidiary REMIC, as the context requires.
REMIC 1: As described in the Preliminary Statement.
REMIC 2: As described in the Preliminary Statement.
REMIC Election: An election, for federal income tax
purposes, to treat certain assets as a REMIC.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Property: A Mortgaged Property acquired by the Trust
Fund through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Required Basis Risk Reserve Fund Deposit: With respect to
any Distribution Date on which the Net Excess Spread is less than 0.25%, the
excess of (i) the greater of (a) $15,000 and (b) product of 0.50% and the
Aggregate Loan Balance for such Distribution Date over (ii) the amount of
funds on deposit in the Basis Risk Reserve Fund prior to deposits thereto on
such Distribution Date. With respect to any Distribution Date on which the Net
Excess Spread
30
is equal to or greater than 0.25%, the excess of (i) $5,000 over (ii) the
amount of funds on deposit in the Basis Risk Reserve Fund prior to deposits
thereto on such Distribution Date.
Required Basis Risk Reserve Fund Amount: With respect to any
Distribution Date on which the Net Excess Spread is less than 0.25%, the
greater of (a) $15,000 and (b) the product of 0.50% and the Aggregate Loan
Balance for such Distribution Date. With respect to any Distribution Date on
which the Net Excess Spread is equal to or greater than 0.25%, $5,000.
Required Insurance Policy: With respect to any Mortgage
Loan, any insurance policy that is required to be maintained from time to time
under this Agreement in respect of such Mortgage Loan or the related Mortgaged
Property.
Responsible Officer: When used with respect to the Trustee,
shall mean any officer within the corporate trust department of the Trustee,
respectively, 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 customarily performing functions similar
to those performed by any of the above designated officers and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Rolling Three Month Delinquency Rate: For any Distribution
Date will be the fraction, expressed as a percentage, equal to the average of
the Delinquency Rates for each of the three (or one and two, in the case of
the first and second Distribution Dates) immediately preceding months.
Rule 144A: Rule 144A under the 1933 Act, as in effect from
time to time.
S&P: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
Scheduled Final Distribution Date: The Distribution Date in
March 2032.
Scheduled Payment: The scheduled monthly payment on a
Mortgage Loan due on any Due Date allocable to principal and/or interest on
such Mortgage Loan pursuant to the terms of the related Mortgage Note Loan.
Sellers: DLJMC, WMMSC and GreenPoint.
Senior Certificates: As specified in the Preliminary
Statement.
Senior Enhancement Percentage: For any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the sum of
the aggregate Class Principal Balance of the Class M-1, Class M-2 and Class B
Certificates and the Overcollateralization Amount (which, for purposes of this
definition only, shall not be less than zero), in each case after giving
effect to payments on such Distribution Date (assuming no Trigger Event has
occurred), and the denominator of which is the Aggregate Loan Balance for such
Distribution Date.
31
Senior Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the aggregate Class Principal Balance of the Senior Certificates
immediately prior to such Distribution Date exceeds (y) the lesser of (A) the
product of (i) 89.00% and (ii) the Aggregate Loan Balance for such
Distribution Date and (B) the amount, if any, by which (i) the Aggregate Loan
Balance exceeds (ii) 0.50% of the Aggregate Loan Balance as of the Cut-off
Date.
Servicers: GreenPoint, Olympus and WMMSC, and any successor
in interest thereto or any successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicer Mortgage File: All documents pertaining to a
Mortgage Loan not required to be included in the Trustee Mortgage File and
held by the related Servicer or any Sub-Servicer.
Servicing Advance: All customary, reasonable and necessary
"out of pocket" costs and expenses incurred in the performance by a Servicer
of its servicing obligations, including, but not limited to, the cost
(including reasonable attorneys' fees and disbursements) of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii)
compliance with the obligations under Section 3.11 and any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of any REO Property (including default management and similar
services, appraisal services and real estate broker services); (iv) any
expenses incurred by a Servicer 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.
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 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 Event of Default: An Event of Default under Section
8.01(b) which arises solely from the cumulative effect of a breach or breaches
by WMMSC of its agreements as set forth in clauses (i)(x) through (z),
inclusive, of the first paragraph of Section 2.07(g).
32
Special Servicer: Olympus Servicing, L.P., and its
successors and permitted assigns.
Special Serviced Mortgage Loan: The Mortgage Loans for which
the Special Servicer acts as servicer pursuant to Section 3.19.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and date
of determination, the principal balance of such Mortgage Loan as of the
Cut-off Date, after application of the principal portion of all Scheduled
Payments due on or before the Cut-off Date, whether or not received, minus the
sum of (i) all amounts allocable to principal that have been distributed to
Certificateholders with respect to such Mortgage Loan on or before that date
of determination and (ii) any Realized Losses on such Mortgage Loan that have
been allocated to one or more Classes of Certificates on or before that date
of determination.
Stepdown Date: The date occurring on the earlier of (i) the
Distribution Date on which the Class Principal Balance of each of the Class A
Certificates has been reduced to zero and (ii) the later of (x) the
Distribution Date in March 2005 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 during
the related Collection Period but before giving effect to payments on the
Certificates on such Distribution Date) is greater than or equal to 11.00%.
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 2.03.
Targeted Overcollateralization Amount: For any Distribution
Date prior to the Stepdown Date, 0.50% of the Aggregate Loan Balance as of the
Cut-off Date; with respect to any Distribution Date on or after the Stepdown
Date and with respect to which a Trigger Event has not occurred, the greater
of (a) 1.00% of the Aggregate Loan Balance for such Distribution Date, or (b)
0.50% of the Aggregate Loan Balance as of the Cut-off Date; with respect to
any Distribution Date on or after the Stepdown Date with respect to which a
Trigger Event has occurred and is continuing, the Targeted
Overcollateralization Amount for the Distribution Date immediately preceding
such Distribution Date.
33
Tax Matters Person: The person designated as "tax matters
person" in the manner provided under Treasury regulation ss. 1.860F-4(d) and
temporary Treasury regulationss. 301.6231(a)(7)-1T. Initially, the Tax Matters
Person shall be the Trustee.
Telerate Page 3750: The display designated as page 3750 on
Bridge Telerate Service (or such other page as may replace page 3750 on that
service for the purpose of displaying London interbank offered rates of major
banks).
Transferee Affidavit and Agreement: As defined in Section
6.02(g)(i)(B).
Trigger Event: A Trigger Event will occur for any
Distribution Date if the Rolling Three Month Delinquency Rate as of the last
day of the related Collection Period equals or exceeds 7.50%.
Trust Fund: The corpus of the trust created by this
Agreement consisting of (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date, together with the Mortgage Files
relating to the Mortgage Loans, (b) REO Property, (c) the Collection Account,
the Certificate Account, the Basis Risk Reserve Fund and all amounts deposited
therein pursuant to the applicable provisions of this Agreement, (d) any
insurance policies with respect to the Mortgage Loans, (e) the Depositor's
rights under the Assignment and Assumption Agreement and (f) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
Trust Receipt and Final Certification: As defined in Section
2.02(a).
Trust Receipt and Initial Certification: As defined in
Section 2.02(a).
Trustee: JPMorgan Chase Bank, a New York Banking
Corporation, 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 Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the Trustee Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
of such Distribution Date (prior to giving effect to any Scheduled Payments
due on such Mortgage Loan on such Due Date).
Trustee Fee Rate: As to each Mortgage Loan, a per annum rate
equal to 0.0025%.
Trustee Mortgage File: The mortgage documents listed in
Section 2.01 hereof pertaining to a particular Mortgage Loan and any
additional documents required to be added to the Trustee Mortgage File
pursuant to this Agreement.
Underwriter's Exemption: Prohibited Transaction Exemption
2000-58, 65 Fed. Reg. 67765 (2000), as amended (or any successor thereto), or
any substantially similar administrative exemption granted by the U.S.
Department of Labor.
34
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
includible 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,
98% of all Voting Rights shall be allocated among the Class A, Class M, and
Class B Certificates. The portion of such 98% Voting Rights allocated to each
of the Class A, Class M and Class B Certificates shall be based on the
fraction, expressed as a percentage, the numerator of which is the aggregate
Class Principal Balance then outstanding and the denominator of which is the
Class Principal Balance of all Classes then outstanding. The Class X
Certificates and Class A-IO Certificates shall each be allocated 1% of the
Voting Rights. Voting Rights shall be allocated among the Certificates within
each such Class (other than the Class X Certificates, which has only one
certificate) in proportion to their respective outstanding Class Principal
Balances or Class Notional Amounts, as applicable. The Class AR Certificates
shall have no Voting Rights.
WMMSC: Washington Mutual Mortgage Securities Corp., a
Delaware corporation, and its successors and assigns.
WMMSC Mortgage Loans: The Mortgage Loans identified as such
on the Mortgage Loan Schedule, for which WMMSC is the applicable Seller.
WMMSC Serviced Mortgage Loans: The Mortgage Loans identified
as such on the Mortgage Loan Schedule, for which WMMSC is the applicable
Servicer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund.
(a) The Depositor hereby sells, transfers, assigns,
delivers, sets over and otherwise conveys to the Trustee for the benefit of
the Certificateholders, without recourse, the Depositor's right, title and
interest in and to (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date, together with the Mortgage Files
relating to the Mortgage Loans, (b) REO Property, (c) the Collection Account,
the Certificate Account, the Basis Risk Reserve Fund, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement, (d)
any insurance policies with respect to the Mortgage Loans, (e) the Depositor's
rights under the Assignment and Assumption Agreement, (f) the Depositor's
rights under the Mortgage Loan Purchase Agreement and (g) all
35
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid property.
(b) In connection with the transfer and assignment set forth
in clause (a) above, the Depositor has delivered or caused to be delivered to
the Trustee or a Custodian for the benefit of the Certificateholders, the
documents and instruments with respect to each Mortgage Loan as assigned:
(i) (A) the original Mortgage Note bearing all intervening
endorsements and including any riders to the Mortgage Note, endorsed
"Pay to the order of ________________, without recourse" and signed
in the name of the last named endorsee by an authorized officer or
(B) with respect to any Lost Mortgage Note, a lost note affidavit and
indemnity from the related Seller stating that the original Mortgage
Note was lost or destroyed, (together with a copy of such Mortgage
Note, if available) and indemnifying the Trust Fund against any loss,
cost or liability resulting from the failure to deliver the original
Mortgage Note;
(ii) the original of any guarantee executed in connection
with the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording
thereon, or copies certified by the related recording office or if
the original Mortgage has not yet been returned from the recording
office, a copy certified by or on behalf of the related Seller
indicating that such Mortgage has been delivered for recording. The
return directions for the original Mortgage should indicate, when
recorded, mail to the related Seller;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, (or, if an original of any of
these documents has not been returned from the recording office, a
copy thereof certified by or on behalf of the related Seller, the
original to be delivered to the related Seller forthwith after return
from such recording office) with evidence of recording thereon, if
any;
(v) the original Assignment of Mortgage as appropriate, in
recordable form, for each Mortgage Loan from the last assignee
assigned in blank;
(vi) the originals of any intervening recorded Assignments
of Mortgage, showing a complete chain of assignment from origination
to the last assignee, including warehousing assignments, with
evidence of recording thereon (or, if an original intervening
Assignment of Mortgage has not been returned from the recording
office, a copy thereof certified by or on behalf of the related
Seller, the original to be delivered to the Trustee forthwith after
return from such recording office); and
(vii) the original mortgage title insurance policy, or copy
of title commitment (or in appropriate jurisdictions, attorney's
opinion of title and abstract of title).
In the event the Depositor delivers to the Trustee or the
Custodian certified copies of any document or instrument set forth in 2.01(b)
because of a delay caused by the public
36
recording office in returning any recorded document, the Depositor shall
deliver or cause to be delivered to the Trustee or the Custodian, within 60
days of the Closing Date, an Officer's Certificate which shall (i) identify
the recorded document, (ii) state that the recorded document has not been
delivered to the Trustee or the Custodian due solely to a delay caused by the
public recording office, and (iii) state the amount of time generally required
by the applicable recording office to record and return a document submitted
for recordation.
In the event that in connection with any Mortgage Loan the
Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim
recorded assignments or (c) the lender's title policy (together with all
riders thereto) satisfying the requirements set forth above, concurrently with
the execution and delivery hereof because such document or documents have not
been returned from the applicable public recording office in the case of
clause (a) or (b) above, or because the title policy has not been delivered to
the related Seller or the Depositor by the applicable title insurer in the
case of clause (c) above, the Depositor shall promptly deliver to the Trustee
or the Custodian, in the case of clause (a) or (b) above, such original
Mortgage or such interim assignment, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the relevant
recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, DLJMC shall,
at its expense, (i) affix or cause to be affixed the Trustee's name to each
Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to
be in proper form for recording in the appropriate public office for real
property records within thirty (30) days after receipt thereof and (iii) cause
to be delivered for recording in the appropriate public office for real
property records the assignments of the Mortgages to the Trustee, except that,
with respect to any assignment of a Mortgage as to which DLJMC has not
received the information required to prepare such assignment in recordable
form, DLJMC's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within thirty (30) days after the receipt thereof, and DLJMC need not
cause to be recorded any assignment which relates to a Mortgage Loan in any
jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered by the Depositor (at the Depositor's expense) to the Trustee and
DLJMC, acceptable to the Rating Agencies, the recordation of such assignment
is not necessary to protect the Trustee's and the Certificateholders' interest
in the related Mortgage Loan.
If any original Mortgage Note referred to in Section
2.01(b)(i) above cannot be located, the obligations of the Depositor to
deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee or the Custodian of a photocopy of such Mortgage Note, if available,
with a lost note affidavit and indemnity. If any of the original Mortgage
Notes for which a lost note affidavit and indemnity was delivered to the
Trustee or the Custodian is subsequently located, such original Mortgage Note
shall be delivered to the Trustee or the Custodian within three Business Days.
(c) The Trustee is authorized to appoint any bank or trust
company approved by the Depositor as Custodian of the documents or instruments
referred to in this Section 2.01, and to enter into a Custodial Agreement for
such purpose and any documents delivered thereunder
37
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 9-313 of the New York Uniform
Commercial Code; and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Trustee for the benefit of the Certificateholders for the
purpose of perfecting such security interest under applicable law (except that
nothing in this clause (d) shall cause any person to be deemed to be an agent
of the Trustee for any purpose other than for perfection of such security
interests unless, and then only to the extent, expressly appointed and
authorized by the Trustee in writing). The Depositor and the Trustee, upon
directions from the Depositor, shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement.
SECTION 2.02 Acceptance by the Trustee.
(a) The Trustee acknowledges receipt of the documents
identified in the Trust Receipt and Initial Certification in the form annexed
hereto as Exhibit J and declares that it holds and will hold such documents
and the other documents delivered to it constituting the Mortgage Files, and
that it holds or will hold such other assets as are included in the Trust
Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it will maintain possession
of the Mortgage Notes in the State of Illinois or the State of Texas, unless
otherwise permitted by the Rating Agencies.
38
The Trustee or the Custodian agrees to execute and deliver
on the Closing Date to the Depositor, each Seller and the Trustee a Trust
Receipt and Initial Certification in the form annexed hereto as Exhibit J.
Based on its review and examination, and only as to the documents identified
in such Trust Receipt and Initial Certification, the Trustee or the Custodian
acknowledges that such documents appear regular on their face and relate to
such Mortgage Loan. The Trustee or the Custodian shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable or appropriate for the represented purpose or that they have
actually been recorded in the real estate records or that they are other than
what they purport to be on their face.
Not later than 90 days after the Closing Date, the Trustee
or the Custodian shall deliver to the Depositor, each Seller and Servicer and
the Trustee a Trust Receipt and Final Certification in the form annexed hereto
as Exhibit K, with any applicable exceptions noted thereon.
If, in the course of such review, the Trustee or the
Custodian finds any document constituting a part of a Mortgage File which does
not meet the requirements of Section 2.01, the Trustee or the Custodian shall
list such as an exception in the Trust Receipt and Final Certification;
provided, however, that the Trustee or the Custodian shall not make any
determination as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or is sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates.
The related Seller shall promptly correct or cure such
defect within 90 days from the date it was so notified of such defect and, if
the related Seller does not correct or cure such defect within such period,
the related Seller shall either (a) substitute for the related Mortgage Loan a
Qualified Substitute Mortgage Loan, which substitution shall be accomplished
in the manner and subject to the conditions set forth in Section 2.03, or (b)
purchase such Mortgage Loan from the Trustee or the Custodian within 90 days
from the date the related Seller was notified of such defect in writing at the
Purchase Price of such Mortgage Loan; or such longer period not to exceed 720
days from the Closing Date if the substitution or repurchase of a Mortgage
Loan pursuant to this provision is required by reason of a delay in delivery
of any documents by the appropriate recording office; provided, however, that
a Seller shall have no liability for recording any Assignment of Mortgage in
favor of the Trustee or for the Trustee's failure to record such Assignment of
Mortgage, and provided, further, that no Seller shall be obligated to
repurchase or cure any Mortgage Loan solely as a result of the Trustee's
failure to record such Assignment of Mortgage. The Trustee shall deliver
written notice to each Rating Agency within 270 days from the Closing Date
indicating each Mortgage Loan (a) for which a mortgage or assignment of
mortgage required to be recorded hereunder has not been returned by the
appropriate recording office or (b) as to which there is a dispute as to
location or status of such Mortgage Loan. Such notice shall be delivered every
90 days thereafter until the related Mortgage Loan is returned to the Trustee.
Any such substitution pursuant to (a)
39
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 L. No substitution is permitted
to be made in any calendar month after the Determination Date for such month.
The Purchase Price for any such Mortgage Loan shall be deposited by the
related Seller in the Certificate Account on or prior to the Business Day
immediately preceding such Distribution Date in the month following the month
of repurchase and, upon receipt of such deposit and certification with respect
thereto in the form of Exhibit L hereto, the Trustee or the Custodian shall
release the related Mortgage File to the related Seller and shall execute and
deliver at such entity's request such instruments of transfer or assignment
prepared by such entity, in each case without recourse, as shall be necessary
to vest in such entity, or a designee, the Trustee's interest in any Mortgage
Loan released pursuant hereto.
(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 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 a Seller, GreenPoint,
in its capacity as a Seller and a Servicer, WMMSC, in its capacity as a Seller
and a Servicer, and Olympus, in its capacity as a Servicer and Special
Servicer, hereby makes the representations and warranties applicable to it set
forth in Schedule IIA, IIB, IIC and IID, as applicable hereto, and by this
reference incorporated herein, to the Depositor and the Trustee, as of the
Closing Date, or if so specified therein, as of the Cut-off Date or such other
date as may be specified.
(b) Each of DLJMC, in its capacity as a Seller, GreenPoint,
in its capacity as a Seller, and WMMSC, in its capacity as a Seller, hereby
makes the representations and warranties set forth in Schedule IIIA, IIIB or
IIIC applicable to the Mortgage Loans and by this reference incorporated
herein, to the Depositor and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date or such other date as may be
specified.
(c) Upon discovery by any of the parties hereto of a breach
of a representation or warranty made pursuant to Section 2.03(b) that
materially and adversely affects the interests of the Certificateholders in
any Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. Each Seller hereby covenants that within 90 days
of the earlier of its discovery or its receipt of written notice from any
party of a breach of any representation or warranty made by it pursuant to
Section 2.03(b) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan sold by the related Seller to the
Trust, it shall cure such breach in all material respects, and if such breach
is not so cured, shall, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Qualified
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below; provided, however, that any such
40
substitution pursuant to (i) above shall not be effected prior to the delivery
to the Trustee of the Opinion of Counsel required by Section 2.05 hereof, if
any, and any such substitution pursuant to (i) above shall not be effected
prior to the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit L relating to the Deleted Mortgage Loan
and the Mortgage File for any such Qualified Substitute Mortgage Loan. The
related Seller shall promptly reimburse the Trustee and the related Servicer
for any actual out-of-pocket expenses reasonably incurred by the Trustee and
such related Servicer in respect of enforcing the remedies for such breach.
With respect to any representation and warranties described in this Section
which are made to the best of a Seller's knowledge if it is discovered by
either the Depositor, any Seller, any Servicer, the Special Servicer or the
Trustee that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or the interests of the Certificateholders therein,
notwithstanding such Seller's lack of knowledge with respect to the substance
of such representation or warranty, such inaccuracy shall be deemed a breach
of the applicable representation or warranty.
With respect to any Qualified Substitute Mortgage Loan or
Loans, the related Seller shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by
Section 2.01(b), with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. Scheduled Payments
due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
related Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter the
related Seller shall be entitled to retain all amounts received in respect of
such Deleted Mortgage Loan. The related Seller shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Qualified Substitute
Mortgage Loan or Loans and the related Seller shall deliver the amended
Mortgage Loan Schedule to the Trustee and the related Servicer. Upon such
substitution, the Qualified Substitute Mortgage Loan or Loans shall be subject
to the terms of this Agreement in all respects, and the related Seller shall
be deemed to have made with respect to such Qualified Substitute Mortgage Loan
or Loans, as of the date of substitution, the representations and warranties
made pursuant to Section 2.03(b) with respect to such Mortgage Loan. Upon any
such substitution and the deposit to the Collection Account of the amount
required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee or the Custodian, as
applicable, shall release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to the related
Seller and shall execute and deliver at the related Seller's direction such
instruments of transfer or assignment prepared by the related Seller, in each
case without recourse, as shall be necessary to vest title in the related
Seller, or its designee, the Trustee's interest in any Deleted Mortgage Loan
substituted for pursuant to this Section 2.03.
For any month in which a Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the related Servicer shall determine the amount (if any) by which the
aggregate principal balance of all such Qualified Substitute
41
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 the related Seller became obligated
hereunder to repurchase or replace such Mortgage Loan and upon such deposit of
the Purchase Price, the delivery of the Opinion of Counsel if required by
Section 2.05 and receipt of a Request for Release in the form of Exhibit L
hereto, the Trustee or the Custodian, as applicable, shall release the related
Mortgage File held for the benefit of the Certificateholders to such Person,
and the Trustee shall execute and deliver at such Person's direction such
instruments of transfer or assignment prepared by such Person, in each case
without recourse, as shall be necessary to transfer title from the Trustee. It
is understood and agreed that the obligation under this Agreement of any
Person to cure, repurchase or substitute any Mortgage Loan as to which a
breach has occurred and is continuing shall constitute the sole remedy against
such Persons respecting such breach available to Certificateholders, the
Depositor or the Trustee on their behalf.
The representations and warranties made pursuant to this
Section 2.03 shall survive delivery of the respective Mortgage Files to the
Trustee or the Custodian for the benefit of the Certificateholders.
Notwithstanding the foregoing, the substitution of a Deleted
Mortgage Loan that is a WMMSC Serviced Mortgage Loan or the repurchase of a
Mortgage Loan that is a WMMSC Serviced Mortgage Loan by a Seller shall be
subject to, and shall in no way adversely affect, the right of WMMSC to
continue servicing and collecting its Servicing Fee for such Deleted Mortgage
Loan or Mortgage Loan as, applicable.
SECTION 2.04 Representations and Warranties of the Depositor
as to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee
with respect to the Mortgage Loans that, as of the Closing Date, assuming good
title has been conveyed to the Depositor, the Depositor had good title to the
Mortgage Loans and Mortgage Notes, and did not encumber the Mortgage Loans
during its period of ownership thereof, other than as contemplated by the
Agreement.
It is understood and agreed that the representations and
warranties set forth in this Section 2.04 shall survive delivery of the
Mortgage Files to the Trustee.
42
SECTION 2.05 Delivery of Opinion of Counsel in Connection
with Substitutions.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 shall be made more than 90 days after
the Closing Date unless the related Seller delivers to the Trustee an Opinion
of Counsel, which Opinion of Counsel shall not be at the expense of any of the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively, or (ii)
cause 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 Trustee, 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 Trustee
to treat the Trust Fund as three separate REMICs, REMIC 1, REMIC 2 and the
Master REMIC (each, a "REMIC"), under the Code and, if necessary, under
applicable state law. Each such election will be made on Form 1066 or other
appropriate federal tax or information return (including Form 8811) or any
appropriate state return (x) for the taxable year ending on the last day of
the calendar year in which the Certificates are issued and (y) for the taxable
year ending on the last day of the calendar year in which Certificates are
first sold to a third party. The Closing Date is hereby designated as the
"startup day" of each REMIC created hereunder within the meaning of Section
860G(a)(9) of the Code. The "regular interests" (within the meaning of Section
860G of the Code) in the Master REMIC shall consist of the Regular
Certificates (excluding any rights to Basis Risk Shortfall) and the "Class AR
Certificates shall represent the beneficial ownership of the "residual
interest" in each REMIC created hereunder. Neither the Depositor nor the
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 Trustee 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
43
consented to the appointment of the Trustee 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 Trustee, the amount of any minimum California state franchise
taxes due with respect to each REMIC created hereunder under Sections 23151(a)
and 23153(a) of the California Revenue and Taxation Code. Notwithstanding the
foregoing, the Trustee 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 Trustee shall promptly deposit in the Certificate
Account any amount of "prohibited transaction" tax that results from a breach
of the Trustee's duties, respectively, under this Agreement. The related
Servicer shall promptly deposit in the Certificate Account any amount of
"prohibited transaction" tax that results from a breach of such Servicer's
duties, under this Agreement.
(d) The Trustee shall act as attorney-in-fact and as agent
on behalf of the tax matters person of each REMIC created hereunder and in
such capacity the Trustee shall: (i) prepare, sign and file, or cause to be
prepared, signed and filed, federal and state tax returns using a calendar
year as the taxable year for each REMIC created hereunder when and as required
by the REMIC Provisions and other applicable federal income tax laws as the
direct representative of each such REMIC in compliance with the Code and shall
provide copies of such returns as required by the Code; (ii) make an election,
on behalf of each REMIC created hereunder, to be treated as a REMIC on the
federal tax return of such REMIC for its first taxable year, in accordance
with the REMIC Provisions; and (iii) prepare and forward, or cause to be
prepared and forwarded, to the Certificateholders and to any governmental
taxing authority all information reports as and when required to be provided
to them in accordance with the REMIC Provisions. The expenses of preparing and
filing such returns shall be borne by the Trustee. The Depositor and the
related Servicer shall provide on a prompt and timely basis to the Trustee or
its designee such information with respect to each REMIC created hereunder as
is in their possession and reasonably required or requested by the Trustee 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 Trustee shall also: (A) act on behalf of each
REMIC created hereunder in relation to any tax matter or controversy involving
the Trust Fund, (B) represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto and (C) cause to be paid solely from the
sources provided herein the amount of any taxes imposed on each REMIC created
hereunder when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent
44
the Trustee from withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings).
(e) The Trustee shall provide (i) to any transferor of a
Class AR Certificate such information as is necessary for the application of
any tax relating to the transfer of a Class AR Certificate to any Person who
is not a permitted transferee, (ii) to the Certificateholders such information
or reports as are required by the Code or the REMIC Provisions including
reports relating to interest, original issue discount and market discount or
premium and (iii) to the Internal Revenue Service the name, title, address and
telephone number of the person who will serve as the representative of each
REMIC created hereunder.
(f) The Trustee, the Depositor and the Holder of the Class
AR Certificates shall take any action or cause the Trust Fund to take any
action necessary to create or maintain the status of each REMIC created
hereunder as a REMIC under the REMIC Provisions and shall assist each other as
necessary to create or maintain such status. Neither the Trustee, nor the
Holder of the Class AR Certificates shall take any action, cause the Trust
Fund to take any action or fail to take (or fail to cause the Trust Fund to
take) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of each REMIC created hereunder
as a REMIC or (ii) result in the imposition of a tax upon a REMIC (including,
but not limited to, the tax on prohibited transactions as defined in Code
Section 860F(a)(2) and the tax on prohibited contributions set forth in
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee 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 shall not take or fail to take any action
(whether or not authorized hereunder) as to which a Servicer or the Depositor
has advised it in writing that it has received an Opinion of Counsel to the
effect that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to a REMIC or their assets,
or causing any REMIC created hereunder to take any action, which is not
expressly permitted under the terms of this Agreement, the Trustee will
consult with the Servicers and the Depositor or their designees, in writing,
with respect to whether such action could cause an Adverse REMIC Event to
occur with respect to any REMIC created hereunder and the Trustee shall not
take any such action or cause that REMIC to take any such action as to which
any Servicer or the Depositor has advised it in writing that an Adverse REMIC
Event could occur.
In addition, prior to taking any action with respect to any
REMIC created hereunder or the assets therein, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Holder of the Class AR Certificates will consult with
the Trustee 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 has advised it in writing that an
Adverse REMIC Event could occur. The Trustee 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.
45
At all times as may be required by the Code, the Trustee
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of the
REMICs as "qualified mortgages" as defined in Section 860G(a)(3) of the Code
and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of any REMIC created hereunder, as defined in Section 860F(a)(2)
of the Code, on "net income from foreclosure property" of such REMIC, as
defined in Section 860G(c) of the Code, on any contributions to a REMIC after
the Startup Day therefor pursuant to Section 860G(d) of the Code, or any other
tax is imposed by the Code or any applicable provisions of state or local tax
laws, such tax shall be charged (i) to the related Servicer, if such Servicer
has in its sole discretion determined to indemnify the Trust Fund against such
tax or if such tax arises out of or results from a breach of such Servicer's
duties under (x) Section 2.07(j) of this Agreement to not enter into any
arrangement by which a REMIC would receive a fee or other compensation for
services or to permit such REMIC to receive any income from assets other than
"qualified mortgages" or "permitted investments", (y) Section 3.01 of this
Agreement to not make or any modification, waiver or amendment of any Mortgage
Loan which would cause any REMIC created hereunder to fail to qualify as a
REMIC or result in the imposition of any tax under Section 860F(a) or Section
860G(d) of the Code or (z) Section 3.11(c) of this Agreement to not cause any
REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code or to subject any REMIC created hereunder to
the imposition of any federal, state or local income taxes on the income
earned from such Mortgaged Property under Section 860G(c) of the Code of
otherwise, (ii) to the 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
(iii) 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 Remittance Amount on each Class entitled thereto in the same
manner as if such taxes constituted a Prepayment Interest Shortfall.
In accordance with Section 2.07(c), the related Servicer or
the Trustee, as applicable, shall promptly deposit in the Certificate Account
any amount of such tax.
For purposes of this Section 2.07(g), a tax is imposed
following the final and unappealable determination under the Code of the
amount of such tax and written notice thereof by the Tax Matters Person to the
party to be charged.
The failure of the related Servicer to promptly deposit in
the Certificate Account any amount of such tax shall be an Event of Default,
as provided in Section 8.01(b). However, in the case of WMMSC, the prompt
deposit of any such amount in the Certificate Account shall cure any Special
Event of Default unless notice of such Special Event of Default is accompanied
by an Opinion of Counsel, at the expense of WMMSC, to the effect that the
cumulative effect of WMMSC's breach or breaches, notwithstanding the deposit
of the amounts of any such tax, shall have given rise to a substantial risk
that any REMIC created hereunder would fail to continue to qualify as a REMIC.
46
(h) The Trustee shall, for federal income tax purposes,
maintain books and records with respect to each REMIC created hereunder on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(i) Following the Startup Day, none of any Servicer or the
Trustee shall accept any contributions of assets to any REMIC created
hereunder unless (subject to Section 2.05) such Servicer or the Trustee shall
have received an Opinion of Counsel (at the expense of the party seeking to
make such contribution) to the effect that the inclusion of such assets in a
REMIC will not cause that REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding, or subject that REMIC to any tax under the
REMIC Provisions or other applicable provisions of federal, state and local
law or ordinances.
(j) None of any Servicer or the Trustee 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 Trustee shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for each REMIC.
(l) None of the Trustee or any Servicer shall sell, dispose
of or substitute for any of the Mortgage Loans (except in connection with (i)
the default, imminent default or foreclosure of a Mortgage Loan, including but
not limited to, the acquisition or sale of a Mortgaged Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of any REMIC created
hereunder, (iii) the termination of any REMIC created hereunder pursuant to
Article X of this Agreement or (iv) a purchase of Mortgage Loans pursuant to
Article II or III of this Agreement) nor acquire any assets for a REMIC, nor
sell or dispose of any investments in the Collection Account or the
Certificate Account for gain nor accept any contributions to a REMIC after the
Closing Date (a) unless it 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 to perform its duties as
set forth herein, the Depositor shall provide, or cause to be provided to the
Trustee, within ten days after the Closing Date, all information or data that
the Trustee 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 shall be entitled to rely
47
upon any and all such information and data in the performance of its duties
set forth herein. Thereafter, the related Servicer for each Mortgage Loan
shall provide, promptly upon request therefor, any such additional information
or data (or with respect to WMMSC, any such additional loan level information
and data regarding the WMMSC Mortgage Loans) that the Trustee may from time to
time reasonably request in order to enable the Trustee to perform its duties
as set forth herein and the Trustee 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 hold its harmless for any loss,
liability, damage, claim or expense of the Trustee arising from any failure of
the Depositor to provide, or to cause to be provided, accurate information or
data to the Trustee on a timely basis. The related Servicer (other than WMMSC)
shall indemnify the Trustee and hold it harmless for any loss, liability,
damage, claim or expense, other than any special, indirect, punitive or
consequential loss, liability, damage, claim or expense of any kind
whatsoever, of the Trustee 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 on a timely basis. WMMSC shall
indemnify the Trustee and hold it harmless for any loss, liability, damage,
claim or expense, other than any special, indirect, punitive or consequential
loss, liability, damage, claim or expense, of the Trustee arising from any
failure of WMMSC to provide, or to cause to be provided, the loan level
information or data regarding the WMMSC Mortgage Loans reasonably requested by
the Trustee, and required to be provided by WMMSC pursuant to this Section
2.07(m), on a timely basis. The indemnification provisions hereunder shall
survive the termination of this Agreement and shall extend to any co-trustee
appointed pursuant to this Agreement.
(n) The Trustee shall treat the Basis Risk Reserve Fund as
an outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
that is owned by the Class X Certificateholders and that is not an asset of
the REMIC. The Trustee shall account for the rights of the Class A-1, Class
X-0, Xxxxx X-0, Class A-4, Class M-1, Class M-2 and Class B Certificateholders
to receive payments from the Basis Risk Reserve Fund as rights in an interest
rate cap contract written by the Class X Certificateholders in favor of the
Class A-1, Class X-0, Xxxxx X-0, Class A-4, Class M-1, Class M-2 and Class B
Certificateholders and not as an obligation of the Master REMIC, whose
obligation to pay such Certificates will be subject to a cap equal to the Net
Funds Cap and shall account for such rights as property held separate and
apart from the regular interests as required by Treasury regulation section
1.860G-2(i). Thus each Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class M-1,
Class M-2 and Class B Certificate shall be treated as representing ownership
of not only Master REMIC regular interests, but also ownership of an interest
in an interest rate cap contract. Each Class X Certificate shall represent an
obligation under an interest rate cap contract. For purposes of determining
the issue price of Master REMIC regular interests, the Trustee shall assume
that the interest rate cap contract has a value of $5,000.
SECTION 2.08 Covenants of each Servicer.
Each Servicer, severally and not jointly, hereby covenants
to the Depositor and the Trustee 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 or the Trustee and
48
prepared by such Servicer pursuant to this Agreement will contain any untrue
statement of a material fact.
49
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 Servicers to Service Mortgage Loans.
For and on behalf of the Certificateholders, as independent
contractors of the Trustee, each Servicer, severally and not jointly, shall
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and with Accepted Servicing Practices. The obligations of each of
GreenPoint, Olympus and WMMSC hereunder to service and administer the Mortgage
Loans shall be limited to the GreenPoint Serviced Mortgage Loans, the Olympus
Serviced Mortgage Loans and the WMMSC Serviced Mortgage Loans, respectively;
and with respect to the duties and obligations of each Servicer, references
herein to related "Mortgage Loans" shall be limited to the GreenPoint Serviced
Mortgage Loans (and the related proceeds thereof and related REO Properties),
in the case of GreenPoint, the Olympus Serviced Mortgage Loans (and the
related proceeds thereof and related REO Properties) in the case of Olympus,
and the WMMSC Serviced Mortgage Loans (and the related proceeds thereof and
related REO Properties) in the case of WMMSC; and in no event shall any
Servicer have any responsibility or liability with respect to any of the other
Mortgage Loans. In connection with such servicing and administration, 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 no Servicer shall take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee 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,
when such Servicer believes it appropriate in its reasonable judgment, to
execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans, and with respect
to the Mortgaged Properties held for the benefit of the Certificateholders.
Each Servicer shall prepare and deliver to the Depositor and/or the Trustee
such documents requiring execution and delivery by either or both of them as
are
50
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 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 constitute Servicing Advances and shall be
reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.06, and further as provided in Section 3.08.
The costs incurred by 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.
Notwithstanding anything in this Agreement to the contrary,
the purchase of any WMMSC Serviced Mortgage Loan by any Person shall be
subject to the rights of WMMSC to continue servicing such WMMSC Serviced
Mortgage Loan for the same Servicing Fee substantially in accordance with the
terms of this Agreement.
SECTION 3.02 Subservicing; Enforcement of the Obligations
of Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer
on behalf of the 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. Each Servicer may perform any of its
servicing responsibilities hereunder or may cause the Subservicer to perform
any such servicing responsibilities on its behalf, but the use by 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
51
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, the Trustee 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.
In the event that a Servicer's responsibilities and duties under this
Agreement are terminated pursuant to Section 8.01, and if requested to do so
by the Trustee, such Servicer shall, at its own cost and expense terminate the
rights and responsibilities of its Subservicer as soon as is reasonably
possible. Each Servicer shall pay all fees, expenses or penalties necessary in
order to terminate the rights and responsibilities of its Subservicer from
such Servicer's own funds without any right of reimbursement from the
Depositor, Trustee or the applicable Collection Account.
(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, the related Servicer
shall not be relieved of its obligations to the Depositor, the Trustee or
Certificateholders and shall be obligated to the same extent and under the
same terms and conditions as if it alone were servicing and administering the
related Mortgage Loans. 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 and the other Servicers and the Special Servicer shall
have no obligations, duties or liabilities with respect to a Subservicer
including no obligation, duty or liability of the Depositor, Trustee, the
Special Servicer or other Servicers to pay a Subservicer's fees and expenses.
SECTION 3.03 Reserved.
SECTION 3.04 Trustee 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 Trustee or its successor shall thereupon assume all of the rights and
obligations of such Servicer hereunder arising thereafter (except that the
Trustee shall not be (i) liable for losses of such Servicer pursuant to
Section 3.09
52
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 Trustee, 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 Accepted Servicing Practices to collect all payments due under
each of the related Mortgage Loans when the same shall become due and payable
to the extent consistent with this Agreement and the terms and provisions of
any related Mortgage Guaranty Insurance Policy and shall take special care
with respect to Mortgage Loans for which a Servicer collects escrow payments
in ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loans and the Mortgaged
Properties, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Consistent with the foregoing, in connection with Mortgage Loans which it is
directly servicing, 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 can not 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
53
Mortgage Securities Corp., Mortgage-Backed Pass-Through Certificates,
Series 2002-7" 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
acceptable to the Depositor and the Trustee. Funds deposited in a Collection
Account may be drawn on by the related Servicer in accordance with Section
3.08. Any funds deposited in a Collection Account (other than an account
established by WMMSC) shall either be invested in Eligible Investments or at
all times be fully insured to the full extent permitted under applicable law.
The creation of any Collection Account (other than an account established by
WMMSC) shall be evidenced by a certification in the form of Exhibit R-1
hereto, in the case of an account established with such Servicer, or by a
letter agreement in the form of Exhibit R-2 hereto, in the case of an account
held by a depository other than the related Servicer. A copy of such
certification or letter agreement shall be furnished to the Depositor and
Trustee. Notwithstanding the foregoing, one of the Collection Accounts
established by WMMSC shall be an Investment Account.
(c) 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 sum of the related Expense Fee Rate, as
applicable;
(iii) all Liquidation Proceeds on the related Mortgage Loans;
(iv) all Insurance Proceeds on the related Mortgage Loans
including amounts required to be deposited pursuant to Section 3.09
(other than proceeds to be held in the Escrow Account and applied to
the restoration or repair of the Mortgaged Property or released to
the Mortgagor in accordance with Section 3.09);
(v) all Advances made by 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 the Compensating Interest Payment 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.
54
(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 Trustee shall
establish and maintain, on behalf of the Certificateholders, the Certificate
Account. The Trustee shall, promptly upon receipt, deposit in the Certificate
Account and retain therein the following:
(i) the aggregate amount remitted by the Servicers to the
Trustee pursuant to Section 3.08(a)(viii);
(ii) any amount deposited by the Trustee pursuant to
Section 3.05(e) in connection with any losses on Eligible
Investments; and
(iii) any other amounts deposited hereunder which are required
to be deposited in the Certificate Account.
In the event that a Servicer shall remit to the Trustee any
amount not required to be remitted, it may at any time direct the Trustee to
withdraw such amount from the Certificate Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering an
Officer's Certificate to the Trustee which describes the amounts deposited in
error in the Certificate Account. All funds deposited in the Certificate
Account shall be held by the Trustee in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.08(b). In no event shall the Trustee incur liability for withdrawals
from the Certificate Account at the direction of 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 Trustee, respectively, in Eligible Investments, which
shall mature not later than (i) in the case of a Collection Account, the Cash
Remittance
55
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
Trustee, 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. The Trustee shall not be liable for the amount of any loss
incurred in respect of any investment or lack of investment of funds held in a
Collection Account 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 Trustee as
compensation and shall be remitted to it monthly as provided herein. The
amount of any realized losses in the Certificate Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
Trustee in the Certificate Account.
(f) Each Servicer shall give notice to the Trustee, 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 Trustee shall give notice to each Servicer, each Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof.
SECTION 3.06 Establishment of and Deposits to Escrow
Accounts; Permitted Withdrawals from Escrow
Accounts; Payments of Taxes, Insurance and
Other Charges.
(a) To the extent required by the related Mortgage Note and
not violative of applicable law, the applicable Servicer shall segregate and
hold all funds collected and received pursuant to a Mortgage Loan constituting
Escrow Payments separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Escrow Accounts, in the
form of time deposit or demand accounts, titled, in the case of Servicers
other than Olympus, "Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7", in the case of
Olympus, "Olympus Servicing, L.P., as Trustee for Credit Suisse First Boston
Mortgage Securities Corp. Mortgage-Backed Pass-Through Certificates, Series
2002-7" 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 Q-1 hereto, in
the case of an account established with a Servicer, or by a letter agreement
in the form of Exhibit Q-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 and the Trustee.
56
(b) Each Servicer shall deposit or cause to be deposited in
its Escrow Account or Accounts on a daily basis within two Business Days of
receipt and retain therein:
(i) all Escrow Payments collected on account of the
related Mortgage Loans, for the purpose of effecting timely payment
of any such items as required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds
which are to be applied to the restoration or repair of any Mortgaged
Property.
(c) Each Servicer shall make withdrawals from the Escrow
Account only to effect such payments as are required under this Agreement, as
set forth in Section 3.06(d). Each Servicer shall be entitled to retain any
interest paid on funds deposited in the related Escrow Account by the
depository institution, other than interest on escrowed funds required by law
to be paid to the Mortgagor. To the extent required by law, the applicable
Servicer shall pay interest on escrowed funds to the Mortgagor notwithstanding
that the Escrow Account may be non-interest bearing or that interest paid
thereon is insufficient for such purposes.
(d) Withdrawals from the Escrow Account or Accounts may be
made or caused to be made by the related Servicer only:
(i) to effect timely payments of ground rents,
taxes, assessments, water rates, mortgage insurance premiums,
condominium charges, fire and hazard insurance premiums or other
items constituting Escrow Payments for the related Mortgage;
(ii) to reimburse 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 the related 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.
57
(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 and the Trustee
reasonable access to all records and documentation regarding the Mortgage
Loans and all accounts, insurance information and other matters relating to
this Agreement, such access being afforded without charge, but only upon
reasonable written request and during normal business hours at the office
designated by such Servicer. In addition, each Servicer shall provide to the
Special Servicer reasonable access to all records and documentation regarding
the Mortgage Loans serviced by it that become Special Serviced Mortgage Loans.
(b) Each Servicer, separately with respect to the Mortgage
Loans each services, shall inspect the related Mortgaged Properties as often
as deemed necessary by such Servicer in such party's sole discretion, to
assure itself that the value of such Mortgaged Property is being preserved. In
addition, if any Mortgage Loan is more than 60 days delinquent, such 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);
58
(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) on the Cash Remittance Date, to withdraw an amount
equal to the portion of the Interest Remittance Amount and Principal
Remittance Amount applicable to the Mortgage Loans serviced by such
Servicer for such Distribution Date and who will remit the aggregate
of such amounts to the Trustee for deposit in the Certificate
Account;
(ix) with respect to each Mortgage Loan covered by a lender
paid Mortgage Guarantee Insurance Policy, to effect timely payment of
the premiums on such Mortgage Guarantee Insurance Policy pursuant to
Section 3.09(c); provided, however, that such premiums have been
received on such Mortgage Loans; and
(x) to clear and terminate such Collection Account upon
termination of this Agreement pursuant to Section 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) of a Nonrecoverable Advance the related
Servicer shall deliver to the Trustee a certificate of a Servicing Officer
indicating the amount of any previous Advance or Servicing 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 Trustee shall withdraw funds from the Certificate
Account for distributions to Certificateholders, in the manner specified in
this Agreement (and to withhold from the amounts so withdrawn, the amount of
any taxes that it is authorized to withhold pursuant to Section 2.07). In
addition, the Trustee may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to pay to itself the Trustee Fees to which it is entitled
pursuant to Section 9.05, and to pay to itself any investment income
earned for the related Distribution Date;
59
(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 Federal 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
60
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 Trustee 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 Trustee, a Servicer shall cause to
be delivered to the Trustee a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Trustee. In connection with its activities as Servicer of the related Mortgage
Loans, such Servicer agrees to
61
present, on behalf of itself, the Depositor, and the Trustee for the benefit of
the Certificateholders, claims under any such blanket policy.
(c) With respect to each Mortgage Loan with a Loan-to-Value
Ratio in excess of 80% which the related Seller represented to be covered by a
Mortgage Guaranty Insurance Policy as of the Cut-off Date, the related
Servicer shall, without any cost to the Depositor or Trustee, 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 each Mortgage Loan covered by a lender paid
Mortgage Guaranty Insurance Policy, the applicable Servicer agrees to effect
timely payment of the premiums on such Mortgage Guaranty Insurance Policy from
amounts on deposit in the Collection Account with respect to such Mortgage
Loan. If amounts on deposit in the Collection Account with respect to such
Mortgage Loan are not sufficient to pay the premiums on such Mortgage Guaranty
Insurance Policy, the applicable Servicer agrees to effect timely payment of
such premiums, and such costs shall be recoverable by the applicable Servicer
from the related Liquidation Proceeds or otherwise as a Servicing Advance
pursuant to Section 3.08(a). With respect to each Mortgage Loan covered by a
Mortgage Guaranty Insurance Policy that is not lender paid, the applicable
Servicer agrees to effect timely payment of the premiums on such Mortgage
Guaranty Insurance Policy, and such costs not otherwise recoverable from the
62
Mortgagor shall be recoverable by such Servicer from the related Liquidation
Proceeds or otherwise as a Servicing Advance pursuant to Section 3.08(a).
(d) In connection with its activities as servicer, each
Servicer agrees to prepare and present, on behalf of itself, the Depositor,
the Trustee 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
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 Trustee 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 Trustee.
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.
63
(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 the 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.
64
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. Any funds expended by any Servicer pursuant to this Section 3.11(a)
shall be reimbursable in full pursuant to Section 3.08(a)(iii). The related
Servicer shall be responsible for all other costs and expenses incurred by it
in any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof from the Liquidation Proceeds with respect to the
related Mortgaged Property or otherwise as a Servicing Advance in accordance
with Section 3.08(a).
Notwithstanding anything to the contrary contained in this
Agreement, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the related Servicer has reasonable cause to believe
that a Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, or if the Trustee otherwise requests, an environmental inspection or
review of such Mortgaged Property conducted by a qualified inspector shall be
arranged for by such Servicer. Upon completion of the inspection, the related
Servicer shall promptly provide the Trustee with a written report of
environmental inspection.
In the event the environmental inspection report indicates
that the Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, the related Servicer shall not proceed with foreclosure or
acceptance of a deed in lieu of foreclosure if the estimated costs of the
environmental clean up, as estimated in the environmental inspection report,
together with the Servicing Advances 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, or
such Servicer shall be entitled to be reimbursed from amounts in the related
Collection Account pursuant to Section 3.08(a) hereof. In the event
65
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 Trustee for the benefit
of the Certificateholders, or its nominee, on behalf of the
Certificateholders. The Trustee's name shall be placed on the title to such
REO Property solely as the Trustee hereunder and not in its individual
capacity. The related Servicer shall ensure that the title to such REO
Property references this Agreement and the Trustee's capacity hereunder.
Pursuant to its efforts to sell such REO Property, the related Servicer shall
in accordance with Accepted Servicing Practices manage, conserve, protect and
operate each REO Property for the purpose of its prompt disposition and sale.
The related Servicer, either itself or through an agent selected by 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 Trustee on or before each Distribution Date a
statement with respect to any REO Property covering the operation of such REO
Property for the previous calendar month and 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 Trustee shall
reasonably request and which is necessary to enable the Trustee to comply with
the reporting requirements of the REMIC Provisions. The net monthly rental
income, if any, from such REO Property shall be deposited in the related
Collection Account no later than the close of business on each Determination
Date. The related Servicer shall perform the tax reporting and withholding
required by Sections 1445 and 6050J of the Code with respect to foreclosures
and abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and any tax
reporting required by Section 6050P of the Code with respect to the
cancellation of indebtedness by certain financial entities, by preparing such
tax and information returns as may be required, in the form required, and
delivering the same to the Trustee for filing.
To the extent consistent with Accepted Servicing Practices,
the 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 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
66
"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;
67
fourth, to accrued and unpaid interest (to the extent no Advance has been made
for such amount or any such Advance has been reimbursed) on the Mortgage Loan
or related REO Property, at the per annum rate equal to the related Mortgage
Rate reduced by the related Servicing Fee Rate, to the Due Date occurring in
the month in which such amounts are required to be distributed; and fifth, as a
recovery of principal of the Mortgage Loan. Excess Proceeds, if any, from the
liquidation of a Liquidated Mortgage Loan will be retained by the related
Servicer as additional servicing compensation pursuant to Section 3.14.
(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) The Special Servicer, at its option, may (but is not
obligated to) purchase from the Trust Fund, (a) any Mortgage Loan that is
delinquent in payment 90 or more days or (b) any related Mortgage Loan with
respect to which there has been initiated legal action or other proceedings
for the foreclosure of the related Mortgaged Property either judicially or
non-judicially, in each case, provided that the applicable servicer has the
right to transfer the related servicing rights without the payment of any
compensation to a subservicer. Any such purchase shall be made by the Special
Servicer with its own funds at a price equal to the Purchase Price for such
Mortgage Loan. The applicable Servicer shall be entitled to reimbursement from
the Special Servicer for all expenses incurred by it in connection with the
transfer of any Mortgage Loan to the Special Servicer pursuant to this Section
3.11(g).
SECTION 3.12 Trustee and Custodian 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 L. Upon
68
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 L 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 L,
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
Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
SECTION 3.13 Documents, Records and Funds in Possession
of a Servicer to be Held for the Trustee.
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 Trustee 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 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
69
Collection Account, Certificate Account or any related Escrow Account, or any
funds that otherwise are or may become due or payable to the Trustee for the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Mortgage Loan, except,
however, that 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). In connection with the servicing
of any Special Serviced Mortgage Loan, the Special Servicer shall receive the
Servicing Fee for such Special Serviced Mortgage Loan as its compensation and
Ancillary Income with respect to Special Serviced Mortgage Loans.
(b) Additional servicing compensation in the form of
Ancillary Income shall be retained by the 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 and the Trustee, on or before 120 days after the end of such
Servicer's fiscal year, commencing in its 2003 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
70
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 2003 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 Trustee, 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 Trustee.
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
71
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 Trustee, the related Servicer shall cause to be delivered to
the Trustee a certificate of insurance of the insurer and the surety including
a statement from the surety and the insurer that such fidelity bond and
insurance policy shall in no event be terminated or materially modified
without 30 days' prior written notice to the Trustee.
SECTION 3.19 Special Serviced Mortgage Loans.
If directed by the Special Servicer and solely at the
Special Servicer's option, a Servicer other than WMMSC (a "Transferring
Servicer") shall transfer the servicing of any Mortgage Loan serviced by the
Transferring Servicer 91 days or more delinquent to the Special Servicer. The
Special Servicer shall thereupon assume all of the rights and obligations of
the Transferring Servicer hereunder arising thereafter and the Transferring
Servicer shall have no further rights or obligations hereunder with respect to
such Mortgage Loan (except that the Special Servicer shall not be (i) liable
for losses of the Transferring Servicer pursuant to Section 3.09 hereof or for
any acts or omissions of the Transferring Servicer hereunder prior to the
servicing transfer date, (ii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03 hereof or (iii) deemed to have made any representations and warranties of
a Transferring Servicer hereunder). Upon the transfer of the servicing of any
such Mortgage Loan to the Special Servicer, the Special Servicer shall be
entitled to the Servicing Fee and other compensation accruing after the
servicing transfer date with respect to such Mortgage Loans pursuant to
Section 3.14.
In connection with the transfer of the servicing of any
Mortgage Loan to the Special Servicer, the Transferring Servicer shall, at the
Special Servicer's expense, deliver to the Special Servicer all documents and
records relating to such Mortgage Loans and an accounting of amounts collected
or held by it and otherwise use its best efforts to effect the orderly and
efficient transfer of the servicing to the Special Servicer. On the servicing
transfer date, the Special Servicer shall reimburse the Transferring Servicer
for all unreimbursed Advances, Servicing Advances and Servicing Fees, as
applicable, relating to the Mortgage Loans for which the servicing is being
transferred. The Special Servicer shall be entitled to be reimbursed pursuant
to Section 3.08 or otherwise pursuant to this Agreement for all such Advances,
Servicing Advances and Servicing Fees, as applicable, paid by the Transferring
Servicer pursuant to this Section 3.19. In addition, the Special Servicer
shall amend the Mortgage Loan Schedule to reflect that such Mortgage Loans are
Special Serviced Mortgage Loans.
72
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution.
(a) On each Distribution Date, the Trustee shall distribute
the Interest Remittance Amount for such date in the following order of
priority:
(i) concurrently, to the Class A, Class AR and Class A-IO
Certificates, pro rata, Current Interest and any Carryforward
Interest for each such Class and such Distribution Date;
(ii) to the Class M-1 Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date;
(iii) to the Class M-2 Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date;
(iv) To the Class B Certificates, Current Interest and any
Carryfoward Interest for such Class and such Distribution Date; and
(v) for application as part of Monthly Excess Cashflow for
such Distribution Date as provided in Section 4.01(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 Trustee shall
distribute the Principal Payment Amount for such date in the following order
of priority:
(i) to the Class A and Class AR Certificates, as follows:
(a) to the Class AR Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(b) to the Class A-1 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(c) concurrently, as follows to the Class A-2 and
Class A-3 Certificates:
(1) 86.0% to the Class A-2 Certificates, until the
Class Principal Balance of such Class has been reduced to zero;
(2) 14.0% to the Class A-3 Certificates, until the
Class Principal Balance of such Class has been reduced to zero;
(d) to the Class A-3 Certificates until the Class
Principal Balance of such Class has been reduced to zero;
73
(e) to the Class A-4 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(ii) to the Class M-1 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(iii) to the Class M-2 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(iv) to the Class B Certificates, until the Class
Principal Balance of such Class has been reduced to zero; and
(v) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in Section 4.01(d), any Principal
Payment Amount remaining after application pursuant to clauses (b)(i)
through (iv) above.
(c) On each Distribution Date (A) on or after the Stepdown
Date and (B) with respect to which a Trigger Event has not occurred, the
Trustee shall distribute the Principal Payment Amount for such date in the
following order of priority:
(i) to the Class A and Class AR Certificates, the
Senior Principal Payment Amount, as follows:
(a) to the Class AR Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(b) to the Class A-1 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(c) concurrently, as follows, to the Class A-2 and
Class A-3 Certificates:
(1) 84.0% to the Class A-2 Certificates, until the
Class Principal Balance of such Class has been reduced to zero; and
(2) 16.0% to the Class A-3 Certificates, until the
Class Principal Balance of such Class has been reduced to zero;
(d) to the Class A-3 Certificates, until the Class
Principal Balance of such Class has been reduced to zero; and
(e) to the Class A-4 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(ii) to the Class M-1 Certificates, the Class M-1 Principal
Payment Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero;
74
(iii) to the Class M-2 Certificates, the Class M-2 Principal
Payment Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero;
(iv) to the Class B Certificates, the Class B Principal
Payment Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero; and
(v) for application as part of Monthly Excess Cashflow for
such Distribution Date, as provided in Section 4.01(d), any Principal
Payment Amount remaining after application pursuant to clauses (c)(i)
though (iv) above.
(d) On each Distribution Date, the Trustee 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
Certificates equals the Aggregate Loan Balance for such Distribution
Date minus the Targeted Overcollateralization Amount for such date,
on each Distribution Date (x) prior to the Stepdown Date or (y) with
respect to which a Trigger Event has occurred, to the extent of
Monthly Excess Interest for such Distribution Date, to the
Certificates, in the following order of priority:
(a) to the Class A Certificates, in accordance with
the principal distribution rules set forth above in Section
4.01(b)(i), until the Class Principal Balance of each such Class has
been reduced to zero;
(b) to the Class M-1 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(c) to the Class M-2 Certificates, until the Class
Principal Balance of such Class has been reduced to zero; and
(d) to the Class B Certificates, until the Class
Principal Balance of such Class has been reduced to zero.
(B) on each Distribution Date on or after the Stepdown
Date and with respect to which a Trigger Event has not occurred, to fund any
principal distributions required to be made on such Distribution Date set
forth above in Section 4.01(c) above, after giving effect to the distribution
of the Principal Payment Amount for such Distribution Date, in accordance with
the priorities set forth therein;
(ii) to the Class M-1 Certificates, any Deferred Amount for
such class;
(iii) to the Class M-2 Certificates, any Deferred Amount for
such class;
(iv) to the Class B Certificates, any Deferred Amount for
such class;
75
(v) concurrently, to the Class A Certificates, any Basis
Risk Shortfall due and owing for each such Class;
(vi) to the Class M-1 Certificates, any Basis Risk Shortfall
due and owing on such Class;
(vii) to the Class M-2 Certificates, any Basis Risk Shortfall
due and owing on such Class;
(viii) to the Class B Certificates, any Basis Risk Shortfall
due and owing on such Class;
(ix) to the Basis Risk Reserve Fund, any Required Basis
Risk Reserve Fund Deposit;
(x) to the Class X Certificate, the Class X Distributable
Amount for such Distribution Date together with any amounts withdrawn
from the Basis Risk Reserve Fund for distribution to such Class X
Certificate pursuant to Sections 4.07(b) and (e) and
(xi) to the Class AR Certificates, any remaining amount.
SECTION 4.02 Allocation of Losses.
On each Distribution Date, the Trustee shall determine the
total of the Applied Loss Amount with respect to the Certificates, if any, for
such Distribution Date. The Applied Loss Amount with respect to the
Certificates for any Distribution Date shall be applied by reducing the Class
Principal Balance of the Class of Subordinate Certificates then outstanding
with the lowest relative payment priority, until the respective Class
Principal Balance thereof is reduced to zero. Any Applied Loss Amount with
respect to the Certificates allocated to a Class of Subordinate Certificates
shall be allocated among the Subordinate Certificates of such Class in
proportion to their respective Percentage Interests.
SECTION 4.03 Reserved.
SECTION 4.04 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall
prepare and cause to be made available to each Certificateholder, each
Servicer, 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;
76
(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 for the following
Distribution Date;
(vi) the amount of the Servicing Fees and the Trustee Fees
with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of
Certificates with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution
on such Distribution Date and the aggregate amount of Advances
outstanding as of the close of business on such Distribution Date;
(ix) the number and aggregate principal amounts of Mortgage
Loans in foreclosure or delinquent (with a notation indicating which
Mortgage Loans, if any, are in foreclosure) (1) 31 to 60 days, (2) 61
to 90 days and (4) 91 or more days, as of the close of business on
the last day of the calendar month preceding such Distribution Date;
(x) the Rolling Three Month Delinquency Rate for such
Distribution Date;
(xi) the total number and principal balance of any REO
Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xii) the aggregate amount of Realized Losses incurred
during the preceding calendar month and aggregate Realized Losses
through such Distribution Date; and
(xiii) the weighted average term to maturity of the Mortgage
Loans as of the close of business on the last day of the calendar
month preceding such Distribution Date.
The Trustee'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 Trustee 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 Trustee and Bloomberg. In connection with
providing the information specified in this Section 4.04 to Bloomberg, the
Trustee and any director, officer, employee or agent of the Trustee shall be
indemnified and held harmless by DLJMC, to the extent, in the manner and
subject to the limitations provided in
77
Section 9.05. The Trustee will also make the monthly statements to
Certificateholders available each month to each party referred to in Section
4.04(a) via the Trustee's website. The Trustee's website can be accessed at
xxxx://xxx.xxxxxxxx.xxx/xxxxxx or at such other site as the Trustee may
designate from time to time. 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 Trustee at 0-000-000-0000. The Trustee 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 Trustee shall provide timely
and adequate notification to all above parties and to the Certificateholders
regarding any such change. The Trustee 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 Trustee shall cause to be furnished to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(i), (a)(ii) and
(a)(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 Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time in effect.
SECTION 4.05 Servicer to Cooperate.
Each Servicer shall provide to the Trustee, the information
set forth in Exhibit H in such form as the Trustee shall reasonably request
with respect to each Mortgage Loan serviced by such Servicer no later than
twelve noon on the Data Remittance Date to enable the Trustee to calculate the
amounts to be distributed to each class of certificates and otherwise perform
its distribution, accounting and reporting requirements hereunder.
SECTION 4.06 Reserved.
SECTION 4.07 Basis Risk Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and
maintain in its name, in trust for the benefit of the Holders of the
Certificates, the Basis Risk Reserve Fund. The Basis Risk Reserve Fund shall
be an Eligible Account, and funds on deposit therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trustee pursuant to this
Agreement.
(b) On the Closing Date, $5,000 will be deposited by the
Depositor into the Basis Risk Reserve Fund. On each Distribution Date, the
Trustee shall transfer from the Certificate Account to the Basis Risk Reserve
Fund pursuant to Section 4.01(d)(ix), the Required Basis Risk Reserve Fund
Deposit. Amounts on deposit in the Basis Risk Reserve Fund can be withdrawn by
the Trustee in connection with any Distribution Date to fund the amounts
required to be distributed to holders of the Certificates in respect of Basis
Risk Shortfall pursuant to Section 4.01(d)(v)-(viii) to the extent Monthly
Excess Cashflow on such date is insufficient to make such payments. On any
Distribution Date, any amounts on deposit in the Basis Risk Reserve Fund in
78
excess of the Required Basis Risk Reserve Fund Amount shall be distributed to
the Class X Certificateholder pursuant to Section 4.01(d)(x).
(c) Funds in the Basis Risk Reserve Fund may be invested in
Eligible Investments by the Trustee at the direction of the Depositor. Any net
investment earnings on such amounts shall be payable to the Depositor. The
Depositor shall evidence ownership of the Basis Risk Reserve Fund for federal
tax purposes and the Depositor shall direct the Trustee in writing as to the
investment of amounts therein. In the absence of such written direction, all
funds in the Basis Risk Reserve Fund shall be invested by the Trustee in the
JPMorgan Prime Money Market Fund. The Trustee shall have no liability for
losses on investments in Eligible Investments made pursuant to this Section
4.07(c) (other than as obligor on any such investments).
(d) If the Trustee shall deposit in the Basis Risk Reserve
Fund any amount not required to be deposited therein, it may at any time
withdraw such amount from such Basis Risk Reserve Fund, any provision herein
to the contrary notwithstanding.
(e) On the Distribution Date immediately after the
Distribution Date on which the aggregate Class Principal Balance of the LIBOR
Certificates equals zero, any amounts on deposit in the Basis Risk Reserve
Fund not payable on the LIBOR Certificates shall be deposited into the
Certificate Account and distributed to the Holder of the Class X Certificate
in the same manner as if distributed pursuant to Section 4.01(d)(x) hereof.
79
ARTICLE V
ADVANCES BY THE SERVICERS
SECTION 5.01 Advances by the Servicers.
Each Servicer shall deposit in the related Collection
Account an amount equal to all Scheduled Payments (with interest at the
Mortgage Rate less the Servicing Fee Rate) which were due on the related
Mortgage Loans serviced by it during the applicable Collection Period and
which were delinquent at the close of business on the immediately preceding
Determination Date; 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 (a) for each Servicer, other than
WMMSC, an assumed scheduled payment that would otherwise be due based on the
original amortization schedule for that Mortgage Loan and (b) for WMMSC, one
month's interest on the outstanding principal balance at the applicable
Mortgage Rate, to the extent the related Servicer deems such amount to be
recoverable. 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 not be required to advance
shortfalls of principal or interest resulting from the application of the
Soldiers' and Sailors' Civil Relief Act of 1940.
To the extent required by Accepted Servicing Practices, 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 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 Cash Remittance Date either (i) deposit in the
Collection Account from its own funds an amount equal to such Advance, (ii)
cause to be made an appropriate entry in the records of the Collection Account
that funds in such account being held for future distribution or withdrawal
have been, as permitted by this Section 5.01, used by 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.
80
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.
The Certificates shall be in substantially the forms set
forth in Exhibits A, B, C, D E and F 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 Trustee 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 Trustee 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
Trustee shall bind the Trustee, notwithstanding that such individuals or any
of them have ceased to be so authorized prior to the authentication and
delivery of 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 Trustee 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 Trustee shall maintain, or cause to be maintained, a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trustee shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. Upon
surrender for registration of transfer of any Certificate, the Trustee 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.
81
(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 Trustee set
forth in Section 6.06. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing.
(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
Trustee in accordance with the Trustee'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 Trustee
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit M (the "Transferor Certificate") and (i) deliver a letter in
substantially the form of either Exhibit N-1 (the "Investment Letter") or
Exhibit N-2 (the "Rule 144A Letter") or (ii) there shall be delivered to the
Trustee 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
Trustee shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably
request to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee, the Depositor, each Seller, each Servicer and
the Special 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.
82
(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 Trustee with (i) in
the case of an ERISA-Restricted Certificate that has been the subject of an
ERISA-Qualifying Underwriting, a certification as set forth in item (d) of
Exhibit N-1 or N-2 or item 15 of Exhibit O and in the case of any other
ERISA-Restricted Certificate, a certification as set forth in item d(i) of
Exhibit N-1 or N-2 or item 15(a) of Exhibit O; or (ii) an Opinion of Counsel
which establishes to the reasonable satisfaction of the Trustee 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 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 Trustee shall require, where applicable, that such prospective
transferee certify to the Trustee 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:
(1) 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 Trustee 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 Trustee 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 Trustee shall require delivery to it,
and shall not register the transfer of a Class AR
Certificate until its receipt of (1) an affidavit and
agreement (a "Transferee Affidavit and Agreement" attached
hereto as Exhibit O) from the proposed transferee, in form
and substance satisfactory to the Trustee, 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
83
agent for any Person who is not other than a Disqualified
Organization, that for so long as it retains its ownership
interest in a Class AR Certificate, it will endeavor to
remain other than a Disqualified Organization, and that it
has reviewed the provisions of this Section 6.02(g) and
agrees to be bound by them, and (2) a certificate, attached
hereto as Exhibit P, from the Holder wishing to transfer a
Class AR Certificate, in form and substance satisfactory to
the Trustee, 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 Trustee 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 Trustee in the form
attached hereto as Exhibit P.
(ii) The Trustee shall register the transfer of any Class AR
Certificate only if it shall have received the Transferee Affidavit
and Agreement, a certificate of the Holder requesting such transfer
in the form attached hereto as Exhibit P and all of such other
documents as shall have been reasonably required by the Trustee 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 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.
84
(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 Trustee, shall make
available, upon written request from the Trustee, 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
Trustee the following:
(A) written notification from each Rating
Agency to the effect that the modification, addition to or
elimination of such provisions will not cause such Rating
Agency to downgrade its then-current 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
85
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 TRUSTEE 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 Trustee 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 Trustee 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.
86
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (a) any mutilated Certificate is surrendered to the
Trustee, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
each Servicer and the Trustee 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 that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and interest in the Trust Fund. In connection with the issuance
of any new Certificate under this Section 6.03, the Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 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 Trustee, and any agent of any Servicer, the
Trustee may treat the person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and none of
the Servicers, the Trustee, nor any agent of a Servicer or the Trustee 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 Trustee 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
Trustee 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
Trustee. Every Certificateholder, by receiving and holding a Certificate,
agrees that the Trustee shall not be held accountable by reason of the
disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(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 Trustee promptly upon request.
87
SECTION 6.06 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its
expense an office or offices or agency or agencies in New York City where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served. The Trustee initially
designates its Corporate Trust Office as its office for such purpose. The
Trustee 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 Trustee 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.
88
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 Trustee 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 Trustee 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 Trustee or the Depositor is unable to locate a qualified
successor, (b) the Depositor, at its option, advises the Trustee in writing
that it elects to terminate the book-entry system with respect to the
Book-Entry Certificates through the Clearing Agency or (c) after the
occurrence of an Event of Default, Holders of Book-Entry Certificates
evidencing not less than 66-2/3% of the aggregate Class Principal Balance of
the Book-Entry Certificates advise the Trustee 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 Trustee
shall notify all Holders of such Certificates of the occurrence of any such
event and the availability of Definitive Certificates. Upon surrender to the
Trustee of the such Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the
Trustee shall authenticate and deliver the Definitive Certificates. Neither
the Depositor nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. 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
Trustee, to the extent applicable with respect to such Definitive
Certificates, and the Trustee shall recognize the Holders of Definitive
Certificates as Certificateholders hereunder.
89
ARTICLE VII
THE DEPOSITOR, THE SELLERS, THE SERVICERS AND THE SPECIAL SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor, the
Servicers and the Special Servicer.
The Depositor, the Sellers, any Servicer and the Special
Servicer shall each be liable, in accordance herewith only to the extent of
the obligations specifically and respectively imposed upon and undertaken by
them herein.
SECTION 7.02 Merger or Consolidation of the Sellers, the
Depositor, the Servicers or the Special
Servicer.
Subject to the immediately succeeding paragraph, the
Depositor, the Sellers, any Servicer and the Special Servicer will each do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises (charter and statutory) and will
each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor, any Seller, any
Servicer or the Special Servicer may be merged or consolidated, or any Person
resulting from any merger or consolidation to which the Depositor, any Seller,
any Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, any Seller or any Servicer, shall
be the successor of the Depositor, such Seller or such Servicer, as the case
may be, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that (i) the successor or surviving Person
to any such Servicer (other than WMMSC) or the Special Servicer shall be
qualified to sell mortgage loans to, and to service mortgage loans on behalf
of, FNMA or FHLMC and (ii) the successor or surviving Person to WMMSC shall
have a net worth of at least $15,000,000, unless each of the Rating Agencies
acknowledge, at the expense of the successor or surviving person to WMMSC,
that its rating of the Certificates in effect immediately prior to such
assignment will not be qualified or reduced as a result of such successor or
surviving Person to WMMSC not having a net worth of at least $15,000,000.
Notwithstanding anything else in this Section 7.02 or in
Section 7.04 hereof to the contrary, a Servicer may assign its rights and
delegate its duties and obligations under this Agreement; provided, however,
that such Servicer gives the Depositor and the Trustee 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 and the Trustee 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,
90
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 Sellers, the
Depositor, the Servicers, the Special
Servicer and Others.
None of the Depositor, any Servicer, any Seller, the Special
Servicer nor any of the directors, officers, employees or agents of the
Depositor, any Servicer, any Seller or the Special Servicer shall be under any
liability to the Certificateholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect
the Depositor, any Servicer, any Seller or the Special Servicer against any
breach of representations or warranties made by it herein or protect the
Depositor, any Servicer, any Seller or the Special Servicer or any such
director, officer, employee or agent from any liability which would otherwise
be imposed by reasons of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Depositor, any Servicer, any Seller and the Special
Servicer and any director, officer, employee or agent of the Depositor, any
Servicer, any Seller or the Special Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, any Servicer, any
Seller and the Special Servicer and any director, officer, employee or agent
of the Depositor, any Servicer, any Seller or the Special Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this
Agreement or the Certificates, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. None of the Depositor, any Servicer, any
Seller or the Special Servicer shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to their
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Depositor, any Servicer, any
Seller or the Special Servicer may in its discretion undertake any such action
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. Anything in this Agreement to the contrary
notwithstanding, in no event shall any Servicer or the Special Servicer be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Servicer
or the Special Servicer has been advised of the likelihood of such loss or
damage and regardless of the form of action.
91
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 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. 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, resign and appoint a successor servicer; provided that such entity
delivers to the Trustee the letter required in Section 7.04(a)(i) above.
SECTION 7.05 Seller and Servicers May Own Certificates.
Each of any Seller, the Special Servicer and any Servicer 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,
the Special Servicer or a Servicer.
92
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 Trustee 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 Trustee or the Depositor or to the Servicer and the Trustee by
the Holders of Certificates having not less than 25% of the Voting Rights
evidenced by the Certificates; or
(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 Trustee or the Depositor, or to the Servicer and the
Trustee 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 Seller by the
Trustee 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
93
(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 Trustee 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 Trustee 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 Trustee shall, prior to the next Distribution Date, immediately make such
Advance and 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 Trustee 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 3.04 hereof, the Trustee
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 Trustee 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 Trustee 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 Trustee, has become the successor to a
Servicer, in accordance with this Section 8.02, the Trustee may, if it shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any
94
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 Trustee, unless such
party is prohibited by law from so acting, shall act in such capacity as
provided herein. In connection with such appointment and assumption, the
Trustee 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 Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Neither the Trustee nor any other successor servicer
shall be deemed to be in default 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 Trustee, 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 Trustee 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 Trustee 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 Trustee 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.
95
SECTION 8.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to
any Servicer, the Trustee 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 Trustee 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 Trustee, 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.
96
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee.
The Trustee, 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 waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default of which a Responsible Officer of the Trustee shall have actual
knowledge has occurred and remains uncured, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. Any
permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee shall
have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement, the
Trustee shall notify the Certificateholders of such instrument in the event
that the Trustee, after so requesting, does not receive a satisfactorily
corrected instrument.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own misconduct, its negligent failure to perform its
obligations in compliance with this Agreement, or any liability which would be
imposed by reason of its willful misfeasance or bad faith; provided, however,
that:
(a) prior to the occurrence of an Event of Default
of which a Responsible Officer of the Trustee shall have actual
knowledge, and after the curing or of all such Events of Default that
may have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be personally liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement which it reasonably believed in good faith to be genuine
and to have been duly executed by the proper authorities respecting
any matters arising hereunder;
97
(b) the Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless the Trustee was negligent
in ascertaining or investigating the pertinent facts;
(c) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with this Agreement at the direction of the
Holders of Certificates evidencing greater than 50% of the Voting
Rights allocated to each Class of Certificates relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(d) no provision of this Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
The Trustee 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 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 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:
98
(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 (A) 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 (B) otherwise by the
Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee
99
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care;
(vii) the Trustee shall not be required to expend its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement except as provided in
Section 3.05(e);
(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
(x) the Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby
or the powers granted hereunder.
(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.
100
SECTION 9.05 Trustee's Fees and Expenses.
As compensation for its services hereunder, the Trustee
shall be entitled to withdraw from the Certificate Account the amount of the
Trustee Fee pursuant to Section 3.08(b)(i) for each Mortgage Loan prior to any
distributions on the Certificates. The Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified by DLJMC and held
harmless (up to a maximum of $150,000) against any loss, liability or expense
(including reasonable attorney's fees and expenses) (i) incurred in connection
with any claim or legal action relating to (a) this Agreement, (b) the
Certificates, (c) the Custodial Agreement, or (d) the performance of any of
the Trustee's duties hereunder or under the Custodial Agreement, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or 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, DLJMC covenants and agrees, except
as otherwise agreed upon in writing by DLJMC and the Trustee ( up to a maximum
of $150,000), for all reasonable expenses, disbursements and advances incurred
or made up 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. In
addition, DLJMC covenants and agrees, to pay or reimburse the Trustee for
recertification fees required to be paid by the Trustee pursuant to a
Custodial Agreement. In addition, DLJMC covenants and agrees to pay or
reimburse the Trust Administrator for any payments required to be paid by the
Trust Administrator pursuant to Sections 7 and 24 of the Custodial Agreement
dated as of February 1, 2001 by and between JPMorgan Chase Bank, as Trustee,
and State Street Bank & Trust Company, as Custodian. Except as otherwise
provided herein, the Trustee shall not be entitled to payment or reimbursement
for any routine ongoing expenses incurred by the Trustee in the ordinary
course of its duties as Trustee, Registrar, Tax Matters Person or Paying Agent
hereunder or for any other expenses. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
SECTION 9.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having ratings on its long-term debt obligations at the time of
such appointment in at least the third highest rating category by both Xxxxx'x
or S&P or such lower ratings as will not cause Xxxxx'x or S&P to lower their
then-current ratings of the Class A Certificates, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or
101
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 Special Servicer and the Servicers and by mailing
notice of resignation by first class mail, postage prepaid, to the
Certificateholders at their addresses appearing on the Certificate Register,
and to the Rating Agencies, not less than 60 days before the date specified in
such notice when, subject to Section 9.08, such resignation is to take effect,
and (b) acceptance by a successor trustee in accordance with Section 9.08
meeting the qualifications set forth in Section 9.06.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.06 hereof and shall fail to resign
after written request thereto by the Depositor, or if at any time the Trustee
shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation or if the Trustee breaches any of its obligations or
representations hereunder, then the Depositor may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee and one copy to the
successor trustee. The Trustee may also be removed at any time by the Holders
of Certificates evidencing not less than 50% of the Voting Rights evidenced by
the Certificates. Notice of any removal of the Trustee and acceptance of
appointment by the successor trustee shall be given to the Rating Agencies by
the Depositor.
If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for the
appointment of a successor trustee.
Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 9.07
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 9.08 hereof.
SECTION 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07
hereof shall execute, acknowledge and deliver to the Depositor and to its
predecessor trustee an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor
102
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:
103
(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 Trustee 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.
SECTION 9.12 Tax Returns
Each Servicer, upon request, will furnish the Trustee with
all such loan level information in the possession of such Servicer as may be
reasonably required in connection with the preparation by the Trustee of all
tax and information returns of the Trust Fund, and the
104
Trustee shall sign such returns. Each Servicer, severally and not jointly,
shall indemnify the Trustee for all reasonable costs, including legal fees and
expenses, related to errors in such tax returns due to errors only in such
loan level information provided by such Servicer.
SECTION 9.13 Filings
The Trustee shall, on behalf of the Trust, cause to be filed
with the Securities and Exchange Commission any periodic reports required to
be filed under the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulation 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
Trustee all material information requested by the Trustee and reasonably
available to them which is required to be included in such reports. The
Trustee shall have no liability with respect to any failure to properly
prepare or file such periodic reports resulting from or relating to the
Trustee's inability or failure to obtain any information not resulting from
its own negligence or willful misconduct.
SECTION 9.14 Determination of Certificate Index
On each Interest Determination Date, the Trustee shall
determine the Certificate Index for the Accrual Period and inform each
Servicer of such rate.
105
ARTICLE X
TERMINATION
SECTION 10.01 Termination upon Liquidation or Repurchase of
all Mortgage Loans.
The obligations and responsibilities of the Special Servicer
or the Servicers, the Sellers, the Depositor and the Trustee created hereby
with respect to the Trust Fund created hereby shall terminate upon the earlier
of:
(i) the repurchase by Olympus at its election, of all
Mortgage Loans and all property acquired in respect of any remaining
Mortgage Loan, which repurchase right Olympus may exercise at its
sole and exclusive election as of any Distribution Date (such
applicable Distribution Date being herein referred to as the
"Optional Termination Date") on or after the date on which the
aggregate Principal Balance of the Mortgage Loans at the time of the
repurchase is less than 5% of the aggregate Principal Balance of the
Mortgage Loans as of the Cut-off Date; and
(ii) the later of (i) twelve months after the maturity of
the last Mortgage Loan remaining in the Trust Fund, (ii) the
liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property and (iii) the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to this
Agreement.
In no event shall the trust created hereby continue beyond
the earlier of (i) the expiration of 21 years from the death of the last
survivor of the descendants of Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the
United States to Great Britain, living on the date of execution of this
Agreement or (ii) the Distribution Date in March 2032.
The Mortgage Loan Purchase Price for any such Optional
Termination shall be equal to the sum of (i) 100% of the Stated Principal
Balance of each Mortgage Loan (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 related to any REO
Property, in each case and (iii) any remaining unreimbursed Advances,
Servicing Advances and Servicing Fees. The Trustee shall give notice to the
Rating Agencies of election to purchase the Mortgage Loans pursuant to this
Section 11.01 and of the Optional Termination Date.
106
SECTION 10.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section
10.01, Olympus shall, at least twenty days prior to the date notice is to be
mailed to the affected Certificateholders notify the Trustee of such Optional
Termination Date and of the applicable purchase price of the Mortgage Loans to
be purchased.
(b) Any purchase of the Mortgage Loans by Olympus shall be
made on an Optional Termination Date by deposit of the applicable purchase
price into the Certificate Account, as applicable, before the Distribution
Date on which such repurchase is effected. Upon receipt by the Trustee of an
Officer's Certificate of Olympus certifying as to the deposit of such purchase
price into the Certificate Account, the Trustee and each co-trust
administrator and separate trust administrator, if any, then acting as such
under this Agreement, shall, upon request and at the expense of Olympus
execute and deliver all such instruments of transfer or assignment, in each
case without recourse, as shall be reasonably requested by Olympus to vest
title in Olympus in the Mortgage Loans so purchased and shall transfer or
deliver to Olympus the purchased Mortgage Loans. Any distributions on the
Mortgage Loans which have been subject to an Optional Termination received by
the Trustee subsequent to (or with respect to any period subsequent to) the
Optional Termination Date shall be promptly remitted by it to Olympus.
(c) Notice of the Distribution Date on which 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
Trustee and by the Trustee 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 Trustee 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 Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain subject to the Trust Fund.
(e) Notwithstanding anything to the contrary herein, the
occurrence of an Optional Termination shall be subject to, and shall in no way
adversely affect, the right of WMMSC to continue servicing and collecting its
Servicing Fee for any WMMSC Serviced Mortgage Loan that remains outstanding at
the time of such Optional Termination.
107
SECTION 10.03 Additional Termination Requirements.
(a) In the event Olympus exercises its purchase option
pursuant to Section 10.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee have received
an Opinion of Counsel to the effect that the failure to comply with the
requirements of this Section will not (i) result in the imposition of taxes on
a "prohibited transaction" of the REMIC, as described in Section 860F of the
Code, or (ii) cause the Trust Fund to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date set
forth in the notice given by Olympus under Section 10.02, the Holder
of the Class AR Certificates shall adopt a plan of complete
liquidation of the REMIC; and
(ii) at or after the time of adoption of any such plan of
complete liquidation for the Trust Fund at or prior to the final
Distribution Date, the Trustee shall sell all of the assets of the
Trust Fund to the Depositor for cash; provided, however, that in the
event that a calendar quarter ends after the time of adoption of such
a plan of complete liquidation but prior to the final Distribution
Date, the Trustee shall not sell any of the assets of the Trust Fund
prior to the close of that calendar quarter.
(b) By its acceptance of a Class AR Certificate, the Holder
thereof hereby agrees to adopt such a plan of complete liquidation and to take
such other action in connection therewith as may be reasonably required to
liquidate and otherwise terminate the Trust Fund.
108
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer, the Sellers 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 Servicers, the Special Servicer, the Sellers and the Trustee
with the consent of the Holders of Certificates evidencing, in the aggregate,
not less than 66-2/3% of the Voting Rights of all the Certificates for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Holders of the Certificates; provided, however, that no such
amendment may (i) reduce in any manner the amount of, delay the timing of or
change the manner in which payments received on or with respect to Mortgage
Loans are required to be distributed with respect to any Certificate without
the consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of a Class of Certificates in a
manner other than as set forth in (i) above without the consent of the Holders
of Certificates evidencing not less than 66-2/3% of the Voting Rights of such
Class, (iii) reduce the aforesaid percentages of Voting Rights, the holders of
which are required to consent to any such amendment without the consent of
100% of the
109
Holders of Certificates of the Class affected thereby, (iv) change the
percentage of the Stated Principal Balance of the Mortgage Loans specified
in Section 11.01(a) relating to optional termination of the Trust Fund or (v)
modify the provisions of this Section 12.01.
It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(c) Promptly after the execution of any amendment to this
Agreement, the Trustee 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, the Trustee 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 may, but shall not be obligated to, enter into any
such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement.
SECTION 11.02 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 11.03 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 11.04 Intention of Parties.
(a) It is the express intent of the Depositor, the Sellers,
the Servicers, the Special Servicer and the Trustee that (i) the conveyance by
GreenPoint of the GreenPoint Mortgage Loans to DLJMC, (ii) the conveyance by
WMMSC of the WMMSC Mortgage Loans to the
110
Depositor and (iii) the conveyance by DLJMC of the Mortgage Loans (other than
the WMMSC Mortgage Loans) to the Depositor pursuant to the Assignment and
Assumption Agreement and (iv) the conveyance by the Depositor to the Trustee
as provided for in Section 2.01 of each of the Seller' and Depositor's right,
title and interest in and to the Mortgage Loans be, and be construed as, an
absolute sale and assignment by GreenPoint to DLJMC of the GreenPoint Mortgage
Loans and by WMMSC to the Depositor of the WMMSC Mortgage Loans and by DLJMC
to the Depositor and by the Depositor to the Trustee of the Mortgage Loans for
the benefit of the Certificateholders. Further, it is not intended that any
conveyance be deemed to be a pledge of the Mortgage Loans by GreenPoint to
DLJMC, or by WMMSC to the Depositor, or by DLJMC to the Depositor or by the
Depositor to the Trustee to secure a debt or other obligation. However, in the
event that the Mortgage Loans are held to be property of GreenPoint, WMMSC,
DLJMC or the Depositor, as applicable, or if for any reason the Assignment and
Assumption Agreement, the Mortgage Loan Purchase Agreement or this Agreement
is held or deemed to create a security interest in the Mortgage Loans, then it
is intended that (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyances provided for in Section 2.01 shall be
deemed to be a grant by the Sellers and the Depositor to the Trustee on behalf
of the Certificateholders, to secure payment in full of the Secured
Obligations (as defined below), of a security interest in all of the Sellers'
and the Depositor's right (including the power to convey title thereto), title
and interest, whether now owned or hereafter acquired, in and to the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, and all
accounts, contract rights, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and uncertificated securities consisting of, arising
from or relating to (A) the Mortgage Loans, including with respect to each
Mortgage Loan, the Mortgage Note and related Mortgage, and all other documents
in the related Trustee Mortgage Files, and including any Qualified Substitute
Mortgage Loans; (B) pool insurance policies, hazard insurance policies and any
bankruptcy bond relating to the foregoing, if applicable; (C) the Certificate
Account; (D) the Collection Account; (E) all amounts payable after the Cut-off
Date to the holders of the Mortgage Loans in accordance with the terms
thereof; (F) all income, payments, proceeds and products of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts from time to time
held or invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property; and (G) all cash and non-cash
proceeds of any of the foregoing; (iii) the possession by the Trustee or any
other agent of the Trustee of Mortgage Notes or such other items of property
as constitute instruments, money, documents, advices of credit, letters of
credit, goods, certificated securities or chattel paper shall be deemed to be
a "possession by the secured party", or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-313, 8-313 or 8-321 thereof); and (iv) notifications to persons
holding such property, and acknowledgments, receipts or confirmations from
persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
securities intermediaries, bailees or agents (as 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
111
and (ii) all other obligations of the Sellers and the Depositor under this
Agreement and the Assignment and Assumption Agreement.
(b) The Sellers and the Depositor, and, at the Depositor's
direction, the Servicers 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 11.05 Notices.
In addition to other notices provided under this Agreement,
the Trustee 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,
1201 Third Avenue, WMT 1706, Xxxxxxx, Xxxxxxxxxx 00000, Attention: Servicing
Compliance, with a copy to Washington Mutual Legal Department, 1201 Third
Avenue, WMT 1706, Xxxxxxx, Xxxxxxxxxx 00000, Attention: WMMSC or such other
address as may be hereafter furnished in writing to the Depositor and the
Trustee by WMMSC, (v) in the case of GreenPoint, (if in its capacity as a
Seller) to GreenPoint Mortgage Funding, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxx,
XX 00000, Attention: Xxxxxx Xxxxxx, (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 Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; and (viii) in the case of Olympus, Olympus Servicing, L.P., 0000
Xxxxx Xxxxx Xxxxx, Xxxxx 000-X, Xxxxxx, Xxxxx, Attention: Xxxx Xxxx. Notices
to Certificateholders shall be deemed given when mailed, first class postage
prepaid.
112
SECTION 11.06 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 11.07 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 Trustee 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
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 12.07, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
113
SECTION 11.08 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 Trustee pursuant to this Agreement, are and
shall be deemed fully paid.
SECTION 11.09 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.
114
IN WITNESS WHEREOF, the Depositor, the Sellers, the
Servicers, the Special Servicer 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 2002.
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 and a Servicer
By:____________________________________
Name:
Title:
OLYMPUS SERVICING, L.P.,
as a Servicer and Special Servicer
By:____________________________________
Name:
Title:
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as a Seller and a Servicer
By:________________________________________
Name:
Title:
115
JPMORGAN CHASE BANK,
as Trustee
By:__________________________________
Name:
Title:
000
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this ___ day of February 2002, 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 February 2002, 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 February 2002, 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 February 2002 before me, a Notary Public in
and for said State, personally appeared ______________ known to me to be a
_____________ of JPMorgan Chase Bank, the New York banking corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
____________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of February 2002 before me, a Notary Public in
and for said State, personally appeared ______________ known to me to be a
_____________ of Olympus Servicing L.P., the Delaware limited partnership that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year in this certificate first above written.
___________________________
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of February 2002 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]
EXHIBIT A
[FORM OF CLASS A CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
A-1
Certificate No. :
Cut-off Date : February 1, 2002
First Distribution Date : March 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate :
Maturity Date :
A-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
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 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
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 Special Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), GreenPoint Mortgage Funding, Inc., as a seller
(in such capacity, a "Seller"), and as a servicer (in such capacity, a
"Servicer"), Washington Mutual Mortgage Securities Corp., in its capacity as a
seller (in such capacity a "Seller") and a servicer (in such capacity, a
"Servicer"), Olympus Servicing, L.P., as a servicer (in such capacity, a
"Servicer") and the special servicer (in such capacity, the "Special
Servicer") and JPMorgan Chase Bank, as trustee. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February [__], 2002.
JPMORGAN CHASE BANK,
as Trustee
By __________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
A-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
Class A-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (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 Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Special
A-5
Servicer, the Sellers and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any agent
of the Depositor, each Servicer, each Seller or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Sellers, the
Trustee or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, Olympus will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Agreement. In the event that no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement. Any term used herein
that is defined in the Agreement shall have the meaning assigned in the
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
A-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number _____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
A-7
EXHIBIT B
[FORM OF CLASS M CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
B-1
Certificate No. :
Cut-off Date : February 1, 2002
First Distribution Date : March 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Interest Rate :
Maturity Date :
B-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
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 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
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 Special Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), GreenPoint Mortgage Funding, Inc., as a seller
(in such capacity, a "Seller"), and as a servicer (in such capacity, a
"Servicer"), Washington Mutual Mortgage Securities Corp., as a seller (in such
capacity, a "Seller") and as a servicer (in such capacity, a "Servicer"),
Olympus Servicing, L.P., as a servicer (in such capacity, a "Servicer") and
the special servicer (in such capacity, the "Special Servicer") and JPMorgan
Chase Bank, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
B-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February [__], 2002.
JPMORGAN CHASE BANK,
as Trustee
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
B-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
Class M-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee nor is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (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 Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Special
B-5
Servicer, the Sellers and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any agent
of the Depositor, each Servicer, each Seller or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Sellers, the
Trustee or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, Olympus will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Agreement. In the event that no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement. Any term used herein
that is defined in the Agreement shall have the meaning assigned in the
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
B-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number _____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
B-7
EXHIBIT C
[FORM OF CLASS B 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.
C-1
Certificate No. :
Cut-off Date : February 1, 2002
First Distribution Date : March 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
C-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
Class 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 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
Special Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), GreenPoint Mortgage Funding, Inc., as a seller
(in such capacity, a "Seller"), and as a servicer (in such capacity, a
"Servicer"), Washington Mutual Mortgage Securities Corp., as a seller (in such
capacity, a "Seller") and as a servicer (in such capacity, a "Servicer"),
Olympus Servicing, L.P., as a servicer (in such capacity, a "Servicer") and
the special servicer (in such capacity, the "Special Servicer") and JPMorgan
Chase Bank, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February [__], 2002.
JPMORGAN CHASE BANK,
as Trustee
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
C-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
Class B
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (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 Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Special
C-5
Servicer, the Sellers and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any agent
of the Depositor, each Servicer, each Seller or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Sellers, the
Trustee or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, Olympus will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Agreement. In the event that no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement. Any term used herein
that is defined in the Agreement shall have the meaning assigned in the
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
C-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number _____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
C-7
EXHIBIT D
[FORM OF CLASS A-IO CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No. :
Cut-off Date : February 1, 2002
First Distribution Date : March 25, 2002
Initial Notional Amount of this
Certificate ("Denomination") :
Initial Class Notional Amount of
all Certificates of this Class :
CUSIP :
Pass-Through Rate :
Maturity Date :
D-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
Class A-IO
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
Special Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), GreenPoint Mortgage Funding, Inc., as a seller
(in such capacity, a "Seller"), and as a servicer (in such capacity, a
"Servicer"), Washington Mutual Mortgage Securities Corp., in its capacity as a
seller (in such capacity a "Seller") and a servicer (in such capacity, a
"Servicer"), Olympus Servicing, L.P., as a servicer (in such capacity, a
"Servicer") and the special servicer (in such capacity, the "Special
Servicer") and JPMorgan Chase Bank, as trustee. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February [__], 2002.
JPMORGAN CHASE BANK,
as Trustee
By _____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
D-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
Class A-IO
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (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 Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Special
D-5
Servicer, the Sellers and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any agent
of the Depositor, each Servicer, each Seller or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Sellers, the
Trustee or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, Olympus will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Agreement. In the event that no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement. Any term used herein
that is defined in the Agreement shall have the meaning assigned in the
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
D-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number _____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
D-7
EXHIBIT E
[FORM OF CLASS AR CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) 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 TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
E-1
Certificate No. : [1][2]
Cut-off Date : February 1, 2002
First Distribution Date : March 25, 2002
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Pass-Through Rate :
Maturity Date :
E-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
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 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
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 Special Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [__________________], is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), GreenPoint Mortgage Funding, Inc., as a seller
(in such capacity, a "Seller"), and as a servicer (in such capacity, a
"Servicer"), Washington Mutual Mortgage Securities Corp., as a seller (in such
capacity, a "Seller") and as a servicer (in such capacity, a "Servicer"),
Olympus Servicing, L.P., as a servicer (in such capacity, a "Servicer") and
the special servicer (in such capacity, the "Special Servicer") and JPMorgan
Chase Bank, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
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 Trustee in New York, New York.
No transfer of a Class AR Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to
E-3
effect such transfer, which representation letter shall not be an expense of
the Trustee 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 Trustee 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 or the Servicers or the Special Servicer to any
obligation in addition to those undertaken in this Agreement, which Opinion of
Counsel shall not be an expense of the Trustee 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
Trustee 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 Trustee 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 Trustee.
E-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February [__], 2002.
JPMORGAN CHASE BANK,
as Trustee
By __________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
E-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
Class AR
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (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 Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Special
E-6
Servicer, the Sellers, and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller, and the Trustee and any agent
of the Depositor, each Servicer, each Seller, or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Sellers, the
Trustee or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, Olympus will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Agreement. In the event that 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
E-7
in the Agreement shall have the meaning assigned in the Agreement, and nothing
herein shall be deemed inconsistent with that meaning.
E-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number _____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
E-9
EXHIBIT F
[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
TRUSTEE (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE
CODE NOR A PERSON ACTING ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR USING THE
ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II) IF THE
PURCHASER IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF
AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. IN THE
EVENT THE REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT
FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE
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.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
F-1
Certificate No. :
Cut-off Date : February 1, 2002
First Distribution Date : March 25, 2002
Initial Notional Amount of this
Certificate ("Denomination") :
Initial Class Notional Amount of
all Certificates of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
F-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
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 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
Special Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [_________________________] is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the denomination of this Certificate by the aggregate of the denominations of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), GreenPoint Mortgage Funding, Inc., as a seller
(in such capacity, a "Seller"), and as a servicer (in such capacity, a
"Servicer"), Washington Mutual Mortgage Securities Corp., as a seller (in such
capacity, a "Seller") and as a servicer (in such capacity, a "Servicer"),
Olympus Servicing, L.P., as a servicer (in such capacity, a "Servicer") and
the special servicer (in such capacity, the "Special Servicer") and JPMorgan
Chase Bank, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
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 Trustee
in writing the facts surrounding the transfer and (i) deliver a letter in
substantially the form of either Exhibit M or Exhibit N-1 or Exhibit N-2 to
the Agreement or (ii) there shall be delivered to the Trustee at the expense
of the transferor an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Securities Act. In the event that such a
transfer
F-3
is to be made within three years from the date of the initial issuance of
Certificates pursuant hereto, there shall also be delivered (except in the
case of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee and the Depositor
against any liability that may result if the transfer is not so exempt or is
not made in accordance with such federal and state laws.
Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Certificate shall be made unless the Trustee shall have received either (i) a
representation letter from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Trustee, to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA or
Section 4975 of the Code, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect such
transfer, which representation letter shall not be an expense of the Trustee
or the Trust Fund, (ii) if the purchaser is an insurance company and the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under Sections I and III of PTCE 95-60 or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA, or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement, or
using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee 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 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 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 Trustee.
F-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: February [__], 2002.
JPMORGAN CHASE BANK,
as Trustee
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-7
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 2002-7, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (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 Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Special
F-6
Servicer, the Sellers and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller, and the Trustee and any agent
of the Depositor, each Servicer, each Seller or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Sellers, the
Trustee or any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, Olympus will have the
option to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Agreement. In the event that 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
F-7
in the Agreement shall have the meaning assigned in the Agreement, and nothing
herein shall be deemed inconsistent with that meaning.
F-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________
_______________________________________________________________________________
for the account of ___________________________________________________________,
account number _____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
F-9
EXHIBIT G
[Reserved]
G-1
EXHIBIT H
FORM OF SERVICER INFORMATION
The following information will be e-mailed to Trustee in accordance with
Section 4.05:
Servicer Loan Number
Trust Loan Number (if applicable)
Scheduled Net Interest
Scheduled Principal
Curtailment Applied
Curtailment Adjustment
Mortgage Rate
Servicing Fee Rate
P&I Payment
Beginning Scheduled Balance
Ending Scheduled Balance
Ending Actual Principal Balance
Due Date
Prepayment in full Principal
Prepayment in full Net Interest
Prepayment in full Penalty
Delinquencies:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
Loss Amounts & Loss Types (i.e., Bankruptcy, Excess, Deficient Valuation,
Debt Reduction)
Xxxxxxx Xxxxxx
First Security Investor Reporting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Phone No. 000-000-0000
Fax No. 000-000-0000
kknight@fsir. com
[name]
JPMorgan Chase Bank
[address]
Phone No. [________]
Fax No. [________]
[email]
H-1
EXHIBIT I
[RESERVED]
I-1
EXHIBIT J
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[_________________, 200_]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement "Pooling and Servicing
Agreement") relating to [____________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
Pooling and Servicing Agreement, the undersigned, as Trustee, hereby certifies
that, except for the exceptions noted on the schedule attached hereto, it has
(a) received an original Mortgage Note with respect to each Mortgage Loan
listed on the Mortgage Loan Schedule and (b) received an original Mortgage (or
a certified copy thereof) with respect to each Mortgage Loan listed on the
Mortgage Loan Schedule in accordance with Section 2.01 of the Pooling and
Servicing Agreement. The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
mentioned above. The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement or any of the Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectability, 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.
JPMORGAN CHASE BANK,
as Trustee
By:______________________________________
Authorized Representative
J-1
EXHIBIT K
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [_______________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement the undersigned, as Trustee,
hereby certifies that, except for the exceptions noted on the schedule
attached hereto, as to each Mortgage Loan listed in the Mortgage Loan Schedule
it has reviewed the Mortgage File and has determined that (based solely on its
review of each such documents on its face) (i) all documents described in
clauses (i)-(v) of Section 2.01(b) of the Pooling and Servicing Agreement are
in its possession, (ii) such documents have been reviewed by it and have not
been mutilated, damaged, defaced, torn or otherwise physically altered and
such documents relate to such Mortgage Loan and (iii) each Mortgage Note has
been endorsed and each assignment of Mortgage has been delivered as provided
in Section 2.01 of the Pooling and Servicing Agreement. The Trustee has made
no independent examination of any documents required to be delivered in
accordance with Section 2.01 of the Pooling and Servicing Agreement beyond the
review specifically required therein. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents required to be delivered in accordance with Section 2.01
of the Pooling and Servicing Agreement or any of the Mortgage Loans identified
on the Mortgage Loan Schedule, or (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
K-1
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
JPMORGAN CHASE BANK,
as Trustee
By: _______________________________________
Authorized Representative
K-2
EXHIBIT L
FORM OF REQUEST FOR RELEASE
[date]
To: JPMorgan Chase Bank
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of February
1, 2002, among the Depositor, DLJ Mortgage Capital, Inc., as seller (in such
capacity, the "Seller"), GreenPoint Mortgage Funding, Inc., as a seller (in
such capacity, a "Seller"), and as a servicer (in such capacity, a
"Servicer"), Washington Mutual Mortgage Securities Corp., as a seller (in such
capacity, a "Seller"), and as a servicer (in such capacity, a "Servicer"),
Olympus Servicing, L.P., as a servicer (in such capacity, a "Servicer") and
the special servicer (in such capacity, the "Special Servicer") and JPMorgan
Chase Bank, as trustee (the "Trustee") (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.
L-1
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
[NAME OF SERVICER]
By: _________________________________
Name:
Title:
L-2
EXHIBIT M
FORM OF TRANSFEROR CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trustee]
Re: [_______________] Mortgage-Backed Pass-Through Certificates,
Series 200_-__
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class AR Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
___________________________
Print Name of Transferor
By:________________________
Authorized Officer
M-1
EXHIBIT N-1
FORM OF INVESTMENT LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trustee]
Re: [__________________] Mortgage-Backed Pass-Through Certificates,
Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) if we are an insurance company,
we are purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60, (e) we are acquiring the Certificates for investment for our
own account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of
the Certificates in accordance with clause (g) below), (f) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of
Section 5 of the Act, and (g) we will not sell, transfer or otherwise dispose
of any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act or is
exempt from such registration requirements, and if requested, we will at our
expense provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made pursuant
to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and
N-1-1
(3) the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
_______________________________
Print Name of Transferee
By:____________________________
Authorized Officer
N-1-2
EXHIBIT N-2
FORM OF RULE 144A LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trustee]
Re: [____________] Mortgage-Backed Pass-Through Certificates,
Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition, or (ii) if an insurance company, we
are purchasing the Certificates with funds contained in an "insurance company
general account" (as defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and our purchase and holding of the
Certificates are covered under Sections I and III of PTCE 95-60, (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold
or otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or require registration
pursuant thereto, nor will act, nor has authorized or will authorize any
person to act, in such manner with respect to the Certificates, (f) we are a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Act ("Rule 144A") and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2, (g) we are aware that the
sale to us is being made in reliance on Rule 144A, and (i) we are acquiring
the Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or
transferred only (A) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for
N-2-1
the account of a qualified institutional buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A, or (B)
pursuant to another exemption from registration under the Act.
Very truly yours,
________________________________
Print Name of Transferee
By:_____________________________
Authorized Officer
N-2-2
EXHIBIT O
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or
beneficial owner (the "Owner") of the Class AR Certificates (the "Class AR
Certificates")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States], on behalf of
which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code"), (ii)
will endeavor to remain other than a disqualified organization for so long as
it retains its ownership interest in the Class AR Certificates, and (iii) is
acquiring the Class AR Certificates for its own account. A "Permitted
Transferee" is any person other than a "disqualified organization". (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class AR Certificates to disqualified organizations under the
Code; (ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class AR Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, if a significant purpose of
the transfer was to enable the transferor to impede the assessment or
collection of tax.
(a) In accordance with Revenue Procedure 2001-12, I.R.B. 2001-2:
[Check the statement that applies]
O-1
__ (i) the consideration paid to the Transferee for accepting
the Class AR Certificates is greater than the present value of the
anticipated net federal income taxes and tax benefits ("Tax
Liability Present Value") associated with owning such Certificates,
with such present value computed using a discount rate equal to the
"applicable federal rate" prescribed by Section 1274 of the Internal
Revenue Code as of the date hereof (with all applicable computations
done in accordance with Rev. Proc. 2001-12) or, to the extent it is
not, if the Transferee has asserted that it regularly borrows, in
the ordinary course of its trade or business, substantial funds from
unrelated third parties at a lower interest rate than such
applicable federal rate and the consideration paid to the Transferee
is greater than the Tax Liability Present Value using such lower
interest rate as the discount rate, the transactions with the
unrelated third party lenders, the interest rate or rates, the date
or dates of such transaction, and the maturity dates or, in the case
of adjustable rate debt instruments, the relevant adjustment dates
or periods, with respect to such borrowings, are accurately states
in Exhibit A to this letter; or
__ (ii) the Transferee (A) is an "eligible corporation" as
defined in Section 860L(a)(2) of the Internal Revenue Code, as to
which the income of Class AR Certificates will only be subject to
taxation in the United States, (B) has, and has had in each of its
two preceding fiscal years, gross assets for financial reporting
purposes (excluding and obligation of a person related to the
transferee within the meaning of Section 860L of the Internal
Revenue Code) in excess of $100 million and net assets of $10
million, and (C) hereby agrees only to transfer the Certificate to
another corporation meeting the criteria set forth in this letter.
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.
P-2
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
includible 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.
O-3
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____.
O-4
EXHIBIT P
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[_____________________]
[_____________________]
[_____________________]
Re: [____________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-___, Class AR (the "Certificates")
------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_________________ (the "Seller") to ____________________________________ (the
"Purchaser") of a _______% Percentage Interest in the above referenced
Certificates, pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of February 1, 2002, among
the Depositor, DLJ Mortgage Capital, Inc., as seller (in such capacity, the
"Seller"), GreenPoint Mortgage Funding, Inc., as a seller (in such capacity, a
"Seller"), and as a servicer (in such capacity, a "Servicer"), Washington
Mutual Mortgage Securities Corp., as a seller (in such capacity, a "Seller")
and as a servicer (in such capacity, a "Servicer"), Olympus Servicing, L.P.,
as a servicer (in such capacity, a "Servicer") and the special servicer (in
such capacity, the "Special Servicer") and JPMorgan Chase Bank, as trustee.
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Depositor and the Trustee
that:
1. No purpose of the Seller relating to sale of the Certificate by
the Seller to the Purchaser is or will be to enable the Seller to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit O. The Seller does not know or believe that
any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee
is not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificate.
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
P-1
historically paid its debts as they came due, and found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificate constitutes a noneconomic residual interest, it (i) understands
that as holder of a noneconomic residual interest it may incur tax liabilities
in excess of any cash flows generated by the interest, and (ii) intends to pay
taxes associated with its holding of the Certificate as they become due.
Very truly yours,
[SELLER]
By:_______________________________
Name:
Title:
P-2
EXHIBIT Q-1
FORM OF ESCROW ACCOUNT CERTIFICATE
[On file]
Q-1-1
EXHIBIT Q-2
FORM OF ESCROW ACCOUNT LETTER
[On file]
Q-2-1
EXHIBIT R-1
FORM OF COLLECTION ACCOUNT CERTIFICATE
[On file]
X-0-0
XXXXXXX X-0
FORM OF COLLECTION ACCOUNT LETTER
[On file]
R-2-1
SCHEDULE I
Mortgage Loan Schedule
(Provided Upon Request)
SCHEDULE IIA
Representations and Warranties of Seller - DLJ Mortgage Capital, Inc.
DLJMC, in its capacity as Seller, hereby makes the representations
and warranties set forth in this Schedule IIA to the Depositor and the
Trustee, as of the Closing Date, or if so specified herein, as of the Cut-off
Date or such other date as may be specified. Capitalized terms used but not
defined herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement dated as of February 1, 2002 (the "Agreement") among
Credit Suisse First Boston Mortgage Securities Corp., as the depositor, DLJ
Mortgage Capital, Inc., as seller, GreenPoint Mortgage Funding, Inc., as a
seller and a servicer, Washington Mutual Mortgage Securities Corp., as a
seller and a servicer, Olympus Servicing, L.P., as a servicer and special
servicer and JPMorgan Chase Bank, as trustee.
(i) DLJMC is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation;
(ii) DLJMC has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by DLJMC of this Agreement have
been duly authorized by all necessary corporate action on the part of
DLJMC; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated hereby, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
DLJMC or its properties or the certificate of incorporation or by-laws of
DLJMC, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on DLJMC's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) the execution, delivery and performance by DLJMC of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made and, in connection with the
recordation of the Mortgages, powers of attorney or assignments of
Mortgages not yet completed;
(v) this Agreement has been duly executed and delivered by DLJMC
and, assuming due authorization, execution and delivery by the Trustee,
the Servicers, the Special Servicer and the Depositor, constitutes a
valid and binding obligation of DLJMC enforceable against it in
accordance with its terms (subject to applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally); and
(vi) to the knowledge of DLJMC, there are no actions, litigation,
suits or proceedings pending or threatened against DLJMC before or by any
court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of DLJMC if
determined adversely to DLJMC would reasonably be expected to materially
and adversely affect DLJMC's ability to perform its obligations under
this Agreement; and DLJMC is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as
to materially and adversely affect the transactions contemplated by this
Agreement.
(vii) to the knowledge of DLJMC, (i) no mortgage loan in the
mortgage pool contemplated under the terms of this Agreement was subject
to the Home Ownership and Equity Protection Act of 1994 or any comparable
state law, (ii) no proceeds from any mortgage loan in the mortgage pool
contemplated under the terms of this Agreement were used to finance
single-premium credit insurance policies, (iii) the Servicers for each
mortgage loan in the mortgage pool contemplated under the terms of this
Agreement will accurately and fully report its borrower credit files to
all three credit repositories in a timely manner, and (iv) no mortgage
loan in the mortgage pool contemplated under the terms of this Agreement
will impose a prepayment premium for a term in excess of five years.
SCHEDULE IIB
Representations and Warranties of Servicer - GreenPoint Mortgage Funding, Inc.
GreenPoint, in its capacity as Seller and Servicer, hereby makes the
representations and warranties set forth in this Schedule IIB to the Depositor
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date or such other date as may be specified. Capitalized terms used
but not defined herein shall have the meanings assigned thereto in the Pooling
and Servicing Agreement dated as of February 1, 2002 (the "Agreement") among
Credit Suisse First Boston Mortgage Securities Corp., as the depositor, DLJ
Mortgage Capital, Inc., as seller, GreenPoint Mortgage Funding, Inc., as a
seller and a servicer, Washington Mutual Mortgage Securities Corp., as a
seller and a servicer, Olympus Servicing, L.P., as a servicer and special
servicer and JPMorgan Chase Bank, as trustee.
(i) GreenPoint is a corporation duly formed, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and
is qualified under the laws of each state where required by applicable
law or is otherwise exempt under applicable law from such qualification.
(ii) GreenPoint has all requisite corporate power, authority and
capacity to enter into the Agreement and to perform the obligations
required of it thereunder. The Agreement (assuming the due authorization
and execution of the Agreement by the other parties thereto) constitutes
a valid and legally binding agreement of GreenPoint enforceable in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, moratorium, reorganization and similar laws,
and by equitable principles affecting the enforceability of the rights of
creditors.
(iii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will result
in the breach of, or constitute a default under, any term or provision of
the organizational documents of GreenPoint or conflict with, result in a
material breach, violation or acceleration of or constitute a material
default under, the terms of any indenture or other agreement or
instrument to which GreenPoint is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to GreenPoint of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over GreenPoint.
(iv) There is no action, suit, proceeding or investigation pending,
or to GreenPoint's knowledge threatened, against GreenPoint before any
court, administrative agency or other tribunal (a) asserting the
invalidity of the Agreement, (b) seeking to prevent the consummation of
any of the transactions contemplated thereby or (c) which might
materially and adversely affect the performance by GreenPoint of its
obligations under, or the validity or enforceability of, the Agreement.
(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the
execution, delivery and performance by GreenPoint of the Agreement or the
consummation of the transactions contemplated by the Agreement
SCHEDULE IIC
Representations and Warranties of Servicer - Washington Mutual Mortgage
Securities Corp.
WMMSC, in its capacity as Servicer, hereby makes the representations
and warranties set forth in this Schedule IIC to the Depositor and the
Trustee, as of the Closing Date, or if so specified herein, as of the Cut-off
Date or such other date as may be specified. Capitalized terms used but not
defined herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement dated as of February 1, 2002 (the "Agreement") among
Credit Suisse First Boston Mortgage Securities Corp., as the depositor, DLJ
Mortgage Capital, Inc., as seller, GreenPoint Mortgage Funding, Inc., as a
seller and a servicer, Washington Mutual Mortgage Securities Corp., as a
servicer, Olympus Servicing, L.P., as a servicer and special servicer and
JPMorgan Chase Bank, as trustee.
(i) WMMSC is a corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its incorporation
and is qualified under the laws of each state where required by
applicable law or is otherwise exempt under applicable law from such
qualification.
(ii) WMMSC has all requisite corporate power, authority and capacity
to enter into the Agreement and to perform the obligations required of it
thereunder. The Agreement (assuming the due authorization and execution
of the Agreement by the other parties thereto) constitutes a valid and
legally binding agreement of WMMSC enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors.
(iii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will result
in the breach of, or constitute a default under, any term or provision of
the organizational documents of WMMSC or conflict with, result in a
material breach, violation or acceleration of or constitute a material
default under, the terms of any indenture or other agreement or
instrument to which WMMSC is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to WMMSC of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over WMMSC.
(iv) There is no action, suit, proceeding or investigation pending,
or to WMMSC's knowledge threatened, against WMMSC before any court,
administrative agency or other tribunal (a) asserting the invalidity of
the Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated thereby or (c) which might materially and
adversely affect the performance by WMMSC of its obligations under, or
the validity or enforceability of, the Agreement.
(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the
execution, delivery and performance by WMMSC of the Agreement or the
consummation of the transactions contemplated by the Agreement.
SCHEDULE IID
Representations and Warranties of Servicer and Special
Servicer- Olympus Servicing, L.P.
Olympus, in its capacities as Servicer and Special Servicer, hereby
makes the representations and warranties set forth in this Schedule IID to the
Depositor and the Trustee, as of the Closing Date, or if so specified herein,
as of the Cut-off Date or such other date as may be specified. Capitalized
terms used but not defined herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement dated as of February 1, 2002 (the
"Agreement") among Credit Suisse First Boston Mortgage Securities Corp., as
the depositor, DLJ Mortgage Capital, Inc., as seller, GreenPoint Mortgage
Funding, Inc., as a seller and a servicer, Washington Mutual Mortgage
Securities Corp., as a seller and a servicer, Olympus Servicing, L.P., as a
servicer and special servicer and JPMorgan Chase Bank, as trustee.
(i) Olympus Servicing, L.P. ("Olympus") is a limited partnership
duly organized, validly existing and in good standing under the laws of
the state of its formation;
(ii) Olympus has full corporate power to own its property, to carry
on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by Olympus of this Agreement have
been duly authorized by all necessary corporate action on the part of
Olympus; and neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated hereby, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
Olympus or its properties or the certificate of incorporation or bylaws
of Olympus, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on Olympus's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) this Agreement has been duly executed and delivered by Olympus
and, assuming due authorization, execution and delivery by the Trustee,
DLJMC and the Depositor, constitutes a valid and binding obligation of
Olympus enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally); and
(v) to the knowledge of Olympus, there are no actions, litigation,
suits or proceedings pending or threatened against Olympus before or by
any court, administrative agency, arbitrator or governmental body (a)
with respect to any of the transactions contemplated by this Agreement or
(b) with respect to any other matter which in the judgment of Olympus if
determined adversely to Olympus would reasonably be expected to
materially and adversely affect Olympus's ability to perform its
obligations under this Agreement, other than as Olympus has previously
advised Seller; and Olympus is not in default with respect to any order
of any court, administrative
agency, arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement.
(vi) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the execution, delivery and performance by
Olympus of the Agreement or the consummation of the transactions
contemplated by the Agreement.
SCHEDULE IIIA
Representations and Warranties of DLJMC - DLJMC Mortgage Loans
DLJMC, in its capacity as Seller, hereby makes the representations
and warranties set forth in this Schedule IIIA to the Depositor and the
Trustee, as of the Closing Date, or if so specified herein, as of the Cut-off
Date or such other date as may be specified, with respect to the DLJMC
Mortgage Loans identified on Schedule I hereto. Capitalized terms used but not
defined herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement dated as of February 1, 2002 (the "Agreement") among
Credit Suisse First Boston Mortgage Securities Corp., as the depositor, DLJ
Mortgage Capital, Inc., as seller, GreenPoint Mortgage Funding, Inc., as a
seller and a servicer, Washington Mutual Mortgage Securities Corp., as a
seller and a servicer, Olympus Servicing, L.P., as a servicer and special
servicer and JPMorgan Chase Bank, as trustee. Each reference to a "Mortgage
Loan" in this Schedule IIIA shall mean a DLJMC Mortgage Loan, and each
reference to a "Mortgaged Property" shall mean a Mortgaged Property related to
a DLJMC Mortgage Loan.
(i) The information set forth in Schedule I, with respect to the
DLJMC Mortgage Loans, is complete, true and correct in all material
respects;
(ii)With respect to a Mortgage Loan that is not a Co-op Loan, the
Mortgage creates a first lien or a first priority ownership interest in
an estate in fee simple in real property securing the related Mortgage
Note. With respect to a Mortgage Loan that is a Co-op Loan, the Mortgage
creates a first lien or a first priority ownership interest in the stock
ownership and leasehold rights associated with the cooperative unit
securing the related Mortgage Note;
(iii) All payments due prior to the Cut-off Date for such Mortgage
Loan have been made as of the Closing Date, the Mortgage Loan is not
delinquent in payment more than 30 days; there are no material defaults
under the terms of the Mortgage Loan. Except for (a) payments in the
nature of escrow payments and (b) interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever
is greater, to the day which precedes by one month the Due Date of the
first installment payment of principal and interest, including, without
limitation, taxes and insurance payments, the Seller has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the Mortgaged Property subject to
the Mortgage, directly or indirectly, for the payment of any amount
required by the Mortgage Loan;
(iv) All taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay for every such escrowed item
which remains unpaid and which has been assessed but is not yet due and
payable;
(v) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded or sent for recording to the extent
any such recordation is required by law, or,
necessary to protect the interest of the Purchaser. No other instrument
of waiver, alteration or modification has been executed, and no Mortgagor
has been released, in whole or in part, from the terms thereof except in
connection with an assumption agreement and which assumption agreement is
part of the Mortgage File and the terms of which are reflected in
Schedule IA; the substance of any such waiver, alteration or modification
has been approved by the issuer of any related Primary Mortgage Insurance
Policy and title insurance policy, to the extent required by the related
policies;
(vi) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of the
terms of the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render the Mortgage Note or Mortgage unenforceable, in whole
or in part, or subject to any right of rescission, set-off, counterclaim
or defense, including the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto; and the Mortgagor was not a debtor in any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage Loan
was originated;
(vii) All buildings or other customarily insured improvements upon
the Mortgaged Property are insured by an insurer acceptable under the
FNMA Guides, against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the FNMA Guides or by FHLMC, as well
as all additional requirements set forth in Section 4.10 of this
Agreement. All such standard hazard policies are in full force and effect
and on the date of origination contained a standard mortgagee clause
naming the Seller and its successors in interest and assigns as loss
payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as amended, the Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal
Insurance Administration which policy conforms to FNMA and FHLMC
requirements, as well as all additional requirements set forth in Section
4.10 of this Agreement. Such policy was issued by an insurer acceptable
under FNMA or FHLMC guidelines. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from the Mortgagor;
(viii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan have been
complied with in all material respects;
(ix) The Mortgage has not been satisfied, canceled or subordinated,
in whole or in part, or rescinded, and the Mortgaged Property has not
been released from the lien of the Mortgage, in whole or in part nor has
any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor
has the Seller waived any default resulting from any action or inaction
by the Mortgagor;
(x) The Mortgage is a valid, subsisting, enforceable and perfected
first lien on the Mortgaged Property, including for Mortgage Loans that
are not Co-op Loans, all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air
conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the
foregoing securing the Mortgage Note's original principal balance. The
Mortgage and the Mortgage Note do not contain any evidence of any
security interest or other interest or right thereto;
(xi) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject
to bankruptcy, insolvency, moratorium, reorganization and other laws of
general application affecting the rights of creditors and by general
equitable principles. All parties to the Mortgage Note and the Mortgage
had the legal capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage. The Mortgage Note and the
Mortgage have been duly and properly executed by such parties. No fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of Seller or the
Mortgagor, or, to the best of the Seller's knowledge, on the part of any
other party involved in the origination of the Mortgage Loan. Except to
the extent the Mortgage Loan is subject to completion escrows which have
been disclosed to the Purchaser and as to which a completed FNMA form 442
has been delivered to the Purchaser within sixty (60) days after the
Closing Date, the proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and
all requirements as to completion of any on-site or off-site improvements
and as to disbursements of any escrow funds therefor have been satisfied.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and the recording of the Mortgage were paid or are in the process of
being paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(xii) The Seller or its affiliate is the sole owner of record and
holder of the Mortgage Loan, except for the assignments of mortgage which
have been sent for recording, and upon recordation the Purchaser or its
designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan to
the Purchaser, the Seller or the Servicer will retain the Mortgage File
or any part thereof with respect thereto not delivered to the Purchaser
or the Purchaser's designee in trust only for the purpose of servicing
and supervising the servicing of the Mortgage Loan. Immediately prior to
the transfer and assignment to the Purchaser on the Closing Date, the
Mortgage Loan, including the Mortgage Note and the Mortgage, were not
subject to an assignment or pledge, and the Seller had good and
marketable title to and was the sole owner thereof and had full right to
transfer and sell the Mortgage Loan to the Purchaser free and clear of
any encumbrance, equity, lien, pledge, charge, claim or security interest
and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the Mortgage Loan pursuant to this Agreement and following the sale of
the Mortgage Loan, the Purchaser will own such Mortgage Loan free and
clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest. The Seller intends to relinquish all
rights to possess,
control and monitor the Mortgage Loan, except for the purposes of
servicing the Mortgage Loan as set forth in this Agreement;
(xiii) Each Mortgage Loan that is not a Co-op Loan is covered by an
ALTA lender's title insurance policy or other generally acceptable form
of policy or insurance acceptable to FNMA or FHLMC, issued by a title
insurer acceptable to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject
to (1) the lien of non-delinquent current real property taxes and
assessments not yet due and payable, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to or
otherwise considered in the appraisal made for the originator of the
Mortgage Loan, or (B) which do not adversely affect the appraised value
of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of
the related Mortgaged Property) the Seller, its successors and assigns,
as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan. Where required by state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. The Seller, its successors and
assigns, are the sole insureds of such lender's title insurance policy,
such title insurance policy has been duly and validly endorsed to the
Purchaser or the assignment to the Purchaser of the Seller's interest
therein does not require the consent of or notification to the insurer
and such lender's title insurance policy is in full force and effect and
will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the
related Mortgage, including the Seller, has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy;
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and
no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event permitting acceleration; and neither the
Seller nor any prior mortgagee has waived any default, breach, violation
or event permitting acceleration;
(xv) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to or equal to the
lien of the related Mortgage;
(xvi) All improvements subject to the Mortgage which were considered
in determining the appraised value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of the Mortgaged
Property (and wholly within the project with respect to a condominium
unit) except for de minimus encroachments permitted by the FNMA Guide and
which have been noted on the appraisal or the title policy affirmatively
insures against loss or damage by reason of any violation, variation or
encroachment adverse circumstances which is either disclosed or would
have been disclosed by an accurate survey, and no improvements on
adjoining properties encroach upon the Mortgaged Property except
those which are insured against by the title insurance policy referred to
in clause (xiii) above or are acceptable under FNMA or FHLMC guidelines
and all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(xvii) The Mortgage contains the usual and enforceable provisions
for the acceleration of the payment of the unpaid principal amount of the
Mortgage Loan if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
(xviii) The Mortgaged Property is not subject to any material damage
by waste, fire, earthquake, windstorm, flood or other casualty. At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. To the best of the Seller's knowledge, there have not been any
condemnation proceedings with respect to the Mortgaged Property and there
are no such proceedings scheduled to commence at a future date;
(xix) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of
the benefits of the security provided thereby. To the Seller's knowledge,
there is no homestead or other exemption available to the Mortgagor which
would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage;
(xx) If the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified if required under applicable law to act as
such, has been properly designated and currently so serves and is named
in the Mortgage, and no fees or expenses, except as may be required by
local law, are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee's sale or
attempted sale after default by the Mortgagor;
(xxi) The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the final approval of the mortgage
loan application by a Qualified Appraiser, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan;
(xxii) All parties which have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (A) in
compliance with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and (B) (1)
organized under the laws of such state, or (2) qualified to do business
in such state, or (3) federal savings and loan associations or national
banks or a Federal Home Loan Bank or savings bank having principal
offices in such state or otherwise exempt from such qualification or
licensing, or (4) not doing business in such state;
(xxiii) The Mortgage Loan does not contain "graduated payment"
features; to the extent any Mortgage Loan contains any buydown provision,
such buydown funds have been
maintained and administered in accordance with, and such Mortgage Loan
otherwise complies with, FNMA/FHLMC requirements relating to buydown
loans;
(xxiv) The Mortgage Loans have an original term to maturity of not
more than 30 years, with interest payable in arrears on the first day of
each month. Each Mortgage Note requires a monthly payment which is
sufficient to fully amortize the original principal balance over the
original term thereof and to pay interest at the related Mortgage
Interest Rate;
(xxv) The assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(xxvi) As to Mortgage Loans that are not Co-op Loans and that are
not secured by an interest in a leasehold estate, the Mortgaged Property
is located in the state identified in Schedule I and consists of a single
parcel of real property with a detached single family residence erected
thereon, or a townhouse, or a two-to four-family dwelling, or an
individual condominium unit in a condominium project, or an individual
unit in a planned unit development or a de minimis planned unit
development, or a non-warrantable condominium, or a manufactured home, if
such manufactured home meets the FNMA and FHLMC manufactured housing
guidelines, provided, however, that no residence or dwelling is a single
parcel of real property with a cooperative housing corporation erected
thereon, or a mobile home. As of the date of origination, no portion of
the Mortgaged Property was used for commercial purposes, and since the
date of origination, to the best of Seller's knowledge, no portion of the
Mortgaged Property has been used for commercial purposes, except for
incidental uses which are in accordance with FNMA or FHLMC guidelines;
(xxvii) Principal payments on the Mortgage Loan commenced no more
than sixty (60) days after the funds were disbursed in connection with
the Mortgage Loan. The Mortgage Note is payable on the first day of each
month in equal monthly installments of principal and interest, with
interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of
not more than thirty years from commencement of amortization;
(xxviii) Certain DLJMC Mortgage Loans as specified on Schedule I may
contain a Prepayment Penalty in an amount specified in the related
Mortgage Note or Mortgage.
(xxix) As of the date of origination of the Mortgage Loan, the
Mortgage Property was lawfully occupied under applicable law, and all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities;
(xxx) If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development), or
stock in a cooperative housing corporation, such condominium, cooperative
or planned unit development project meets Seller's eligibility
requirements as set forth in Seller's underwriting guidelines;
(xxxi) To the best of Seller's knowledge, there is no pending action
or proceeding directly involving the Mortgaged Property in which
compliance with any environmental law, rule or regulation is an issue; to
the best of Seller's knowledge, there is no violation of any
environmental law, rule or regulation with respect to the Mortgaged
Property; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(xxxii) The Mortgagor has not notified the Seller, and the Seller
has no knowledge of any relief requested or allowed to the Mortgagor
under the Soldiers' and Sailors' Civil Relief Act of 1940;
(xxxiii) No Mortgage Loan was made in connection with the
construction or rehabilitation of a Mortgaged Property or facilitating
the trade-in or exchange of a Mortgaged Property unless (a) the Mortgage
Loan was identified as a construction-to-permanent mortgage loan on the
Mortgage Loan Schedule and (b) the Mortgage Loan has been fully
disbursed, all construction work is complete and a completion certificate
has been issued;
(xxxiv) No action has been taken or failed to be taken by Seller, on
or prior to the Closing Date which has resulted or will result in an
exclusion from, denial of, or defense to coverage under any Primary
Mortgage Insurance Policy (including, without limitation, any exclusions,
denials or defenses which would limit or reduce the availability of the
timely payment of the full amount of the loss otherwise due thereunder to
the insured) whether arising out of actions, representations, errors,
omissions, negligence, or fraud of the Seller, or for any other reason
under such coverage;
(xxxv) Each Mortgage Loan has been serviced in all material respects
in compliance with accepted servicing practices;
(xxxvi) With respect to each Co-op Loan, the related Mortgage is a
valid, enforceable and subsisting first security interest on the related
cooperative shares securing the related cooperative note, subject only to
(a) liens of the cooperative for unpaid assessments representing the
Mortgagor's pro rata share of the cooperative's payments for its blanket
mortgage, current and future real property taxes, insurance premiums,
maintenance fees and other assessments to which like collateral is
commonly subject and (b) other matters to which like collateral is
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by the Security Agreement. There are
no liens against or security interest in the cooperative shares relating
to each Co-op Loan (except for unpaid maintenance, assessments and other
amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Co-op Loan),
which have priority over the Seller's security interest in such
cooperative shares; and
(xxxvii) The Mortgage Loan was originated by a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to
sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a
federal or state authority.
SCHEDULE IIIB
Representations and Warranties of GreenPoint - GreenPoint Mortgage Loans
GreenPoint, in its capacity as Seller, hereby makes the
representations and warranties set forth in this Schedule IIIB to the
Depositor and the Trustee, as of the Closing Date, or if so specified herein,
as of the Cut-off Date or such other date as may be specified, with respect to
the GreenPoint Mortgage Loans identified on Schedule I hereto. Capitalized
terms used but not defined herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement dated as of February 1, 2002 (the
"Agreement") among Credit Suisse First Boston Mortgage Securities Corp., as
the depositor, DLJ Mortgage Capital, Inc., as seller, GreenPoint Mortgage
Funding, Inc., as a seller and a servicer, Washington Mutual Mortgage
Securities Corp., as a seller and a servicer, Olympus Servicing, L.P., as a
servicer and special servicer and JPMorgan Chase Bank, as trustee. Each
reference to a "Mortgage Loan" in this Schedule IIIB shall mean a GreenPoint
Mortgage Loan, and each reference to a "Mortgaged Property" shall mean a
Mortgaged Property related to a GreenPoint Mortgage Loan. Each reference to
the "Seller" in this Schedule IIIB shall mean GreenPoint, in its capacity as
seller of the GreenPoint Mortgage Loans.
(i) The information set forth in Schedule I, as it relates to the
GreenPoint Mortgage Loans, including any diskette or other related data tapes,
is complete, true and correct in all material respects as of the Cut-off Date;
(ii) With respect to a Mortgage Loan that is not a Co-op Loan, the
Mortgage creates a first lien or a first priority ownership interest in an
estate in fee simple in real property securing the related Mortgage Note. With
respect to a Mortgage Loan that is a Co-op Loan, the Mortgage creates a first
lien or a first priority ownership interest in the stock ownership and
leasehold rights associated with the cooperative unit securing the related
Mortgage Note;
(iii) All payments due prior to the Cut-off Date for the Mortgage
Loans have been made as of the Closing Date, with respect to each GreenPoint
Mortgage Loan, the Mortgage Loan is not delinquent in payment more than 30
days and has not been dishonored; there are no material defaults under the
terms of the Mortgage Loan; the Seller has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than
the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan; and
there has been no more than one delinquency during the preceding twelve-month
period, and such delinquency did not last more than 30 days;
(iv) There are no defaults by Seller in complying with the terms of
the Mortgage, and all taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay for every such escrowed item which
remains unpaid and which has been assessed but is not yet due and payable;
(v) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by law, or, necessary to protect the interest of the Trustee. No
instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, from the terms thereof
except in connection with an assumption agreement and which assumption
agreement is part of the Mortgage File and the terms of which are reflected in
Schedule I; the substance of any such waiver, alteration or modification has
been approved by the issuer of any related Primary Insurance Policy and title
insurance policy, to the extent required by the related policies;
(vi) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of the terms
of the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render the Mortgage Note or Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto; and the
Mortgagor was not a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated;
(vii) All buildings or other customarily insured improvements upon
the Mortgaged Property are insured by an insurer acceptable under the FNMA
Guides, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the FNMA Guides or by FHLMC, as well as all
additional requirements set forth in Section 3.09 of the Agreement. All such
standard hazard policies are in full force and effect and on the date of
origination contained a standard mortgagee clause naming the Seller and its
successors in interest and assigns as loss payee and such clause is still in
effect and all premiums due thereon have been paid. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered by a
flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration which policy conforms to FNMA and FHLMC
requirements, as well as all additional requirements set forth in Section 3.09
of the Agreement. Such policy was issued by an insurer acceptable under FNMA
or FHLMC guidelines. The Mortgage obligates the Mortgagor thereunder to
maintain all such insurance at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(viii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the Mortgage Loan have been complied with in all material
respects;
(ix) The Mortgage has not been satisfied, canceled or subordinated,
in whole or in part, or rescinded, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Seller has not waived the performance by the
Mortgagor of any action, if the Mortgagor's failure to perform such action
would cause the
Mortgage Loan to be in default, nor has the Seller waived any default
resulting from any action or inaction by the Mortgagor;
(x) The Mortgage is a valid, subsisting, enforceable and perfected
first lien on the Mortgaged Property, including for Mortgage Loans that are
not Co-op Loans, all buildings on the Mortgaged Property and all installations
and mechanical, electrical, plumbing, heating and air conditioning systems
affixed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing securing the Mortgage Note's
original principal balance. The Mortgage and the Mortgage Note do not contain
any evidence of any security interest or other interest or right thereto. Such
lien is free and clear of all adverse claims, liens and encumbrances having
priority over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording which are
acceptable to mortgage lending institutions generally and either (A) which are
referred to or otherwise considered in the appraisal made for the originator
of the Mortgage Loan, or (B) which do not adversely affect the appraised value
of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting, enforceable and perfected first
lien and first priority security interest on the property described therein,
and the Seller has the full right to sell and assign the same;
(xi) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject to
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors and the Seller has taken all action necessary to transfer
such rights of enforceability. All parties to the Mortgage Note and the
Mortgage had the legal capacity to enter into the Mortgage Loan and to execute
and deliver the Mortgage Note and the Mortgage. The Mortgage Note and the
Mortgage have been duly and properly executed by such parties. No fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of Seller or the
Mortgagor, or, on the part of any other party involved in the origination of
the Mortgage Loan. The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvements and as
to disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing the Mortgage Loan and
the recording of the Mortgage were paid or are in the process of being paid,
and the Mortgagor is not entitled to any refund of any amounts paid or due
under the Mortgage Note or Mortgage;
(xii) The Seller or its affiliate is the sole owner of record and
holder of the Mortgage Loan and the indebtedness evidenced by the Mortgage
Note, except for the assignments of mortgage which have been sent for
recording, and upon recordation the Purchaser or its designee will be the
owner of record of the Mortgage and the indebtedness evidenced by the Mortgage
Note, and upon the sale of the Mortgage Loan, the Seller will retain the
Mortgage
File or any part thereof with respect thereto not delivered for the purpose of
servicing and supervising the servicing of the Mortgage Loan. The Mortgage
Loan, including the Mortgage Note and the Mortgage, were not subject to an
assignment or pledge, and the Seller had good and marketable title to and was
the sole owner thereof and had full right to transfer and sell the Mortgage
Loan free and clear of any encumbrance, equity, lien, pledge, charge, claim or
security interest and has the full right and authority subject to no interest
or participation of, or agreement with, any other party, to sell and assign
the Mortgage Loan pursuant to the Agreement and following the sale of the
Mortgage Loan, the Trustee will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loans. After the Closing Date the Seller will
have no right to modify or alter the terms of the sale of such Mortgage Loans
and the Seller will have no obligation or right to repurchase the Mortgage
Loan or substitute another Mortgage Loan, except as provided in the Agreement;
(xiii) Each Mortgage Loan that is not a Co-op Loan is covered by an
ALTA lender's title insurance policy or other generally acceptable form of
policy or insurance acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to FNMA or FHLMC and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring (subject to the exceptions
contained in (j)(1), (2) and (3) above) the Seller, its successors and
assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan. Where required by state law or
regulation, the Mortgagor has been given the opportunity to choose the carrier
of the required mortgage title insurance. The Seller, its successors and
assigns, are the sole insureds of such lender's title insurance policy, such
title insurance policy has been duly and validly endorsed or the assignment of
the Seller's interest therein does not require the consent of or notification
to the insurer and such lender's title insurance policy is in full force and
effect and will be in full force and effect upon the consummation of the
transactions contemplated by the Agreement. No claims have been made under
such lender's title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy;
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
permitting acceleration; and neither the Seller nor any prior mortgagee has
waived any default, breach, violation or event permitting acceleration;
(xv) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that
under law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to or equal to the lien of the
related Mortgage;
(xvi) All improvements subject to the Mortgage which were considered
in determining the appraised value of the Mortgaged Property lie wholly within
the boundaries and building restriction lines of the Mortgaged Property (and
wholly within the project with respect to a condominium unit) and no
improvements on adjoining properties encroach upon the
Mortgaged Property except those which are insured against by the title
insurance policy referred to in clause (m) above and all improvements on the
property comply with all applicable zoning and subdivision laws and
ordinances;
(xvii) The Mortgage Loan was originated by or for the Seller. The
Mortgage Loan complies with all the terms, conditions and requirements of the
Seller's underwriting standards in effect at the time of origination of such
Mortgage Loan. The Mortgage Notes and Mortgages (exclusive of any riders) are
on forms generally acceptable to FNMA or FHLMC. The Seller is currently
selling loans to FNMA and/or FHLMC which are the same document forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage Loan
bears interest at the Mortgage Rate as set forth in Schedule I, and Monthly
Payments under the Mortgage Note are due and payable on the first day of each
month. The Mortgage contains the usual and enforceable provisions of the
originator at the time of origination for the acceleration of the payment of
the unpaid principal amount of the Mortgage Loan if the related Mortgaged
Property is sold without the prior consent of the mortgagee thereunder;
(xviii) The Mortgaged Property is not subject to any material damage
by waste, fire, earthquake, windstorm, flood or other casualty. At origination
of the Mortgage Loan there was, and there currently is, no proceeding pending
for the total or partial condemnation of the Mortgaged Property. There have
not been any condemnation proceedings with respect to the Mortgaged Property
and there are no such proceedings scheduled to commence at a future date;
(xix) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (1) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (2) otherwise by
judicial foreclosure. There is no homestead or other exemption available to
the Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage;
(xx) If the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified if required under applicable law to act as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses, except as may be required by local law, are
or will become payable by the Purchaser to the trustee under the deed of
trust, except in connection with a trustee's sale or attempted sale after
default by the Mortgagor;
(xxi) The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the final approval of the mortgage loan
application by a Qualified Appraiser, approved by the Seller, who had no
interest, direct or indirect, in the Mortgaged Property or in any loan made on
the security thereof, and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan, and the appraisal and appraiser both
satisfy the requirements of FNMA or FHLMC and Title XI of the Federal
Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated. The appraisal is in a form acceptable to FNMA or FHLMC and was
made by a Qualified Appraiser;
(xxii) All parties which have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (A) in
compliance with any and all applicable licensing requirements of the laws of
the state wherein the Mortgaged Property is located, and (B) (1) organized
under the laws of such state, or (2) qualified to do business in such state,
or (3) federal savings and loan associations or national banks or a Federal
Home Loan Bank or savings bank having principal offices in such state, or (4)
not doing business in such state;
(xxiii) The related Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to
above and such collateral does not serve as security for any other obligation;
(xxiv) The Mortgagor has received all disclosure materials required
by applicable law with respect to the making of such mortgage loans;
(xv) The Mortgage Loan does not contain "graduated payment"
features; to the extent any Mortgage Loan contains any buydown provision, such
buydown funds have been maintained and administered in accordance with, and
such Mortgage Loan otherwise complies with, FNMA/FHLMC requirements relating
to buydown loans;
(xxvi) The Mortgagor is not in bankruptcy and, the Mortgagor is not
insolvent or in bankruptcy and the Seller has no knowledge of any
circumstances or condition with respect to the Mortgage, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing that could
reasonably be expected to cause investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
materially adversely affect the value or marketability of the Mortgage Loan;
(xxvii) The Mortgage Loans have an original term to maturity of not
more than 30 years, with interest payable in arrears on the first day of each
month. Each Mortgage Note requires a monthly payment which is sufficient to
fully amortize the original principal balance over the original term thereof
and to pay interest at the related Mortgage Rate. No Mortgage Loan contains
terms or provisions which would result in negative amortization;
(xxviii) [Reserved];
(xxix) [Reserved];
(xxx) [Reserved];
(xxxi) [Reserved];
(xxxii) [Reserved];
(xxxiii) [Reserved];
(xxxiv) Except for Mortgage Loans underwritten in accordance with
the lender paid Mortgage Insurance Policy Program, if a Mortgage Loan has an
LTV greater than 85%, the excess of the principal balance of the Mortgage Loan
over 75% of the Appraised Value, with respect to a Refinanced Mortgage Loan,
or the lesser of the Appraised Value or the purchase price of the Mortgaged
Property, with respect to a purchase money Mortgage Loan, is and will be
insured as to payment defaults by a Mortgage Guaranty Insurance Policy issued
by a Qualified Insurer. All provisions of such Mortgage Guaranty Insurance
Policy have been and are being complied with, such policy is in full force and
effect, and all premiums due thereunder have been paid. No action, inaction,
or event has occurred and no state of facts exists that has, or will result in
the exclusion from, denial of, or defense to coverage. Any Mortgage Loan
subject to a Mortgage Guaranty Insurance Policy obligates the Mortgagor
thereunder to maintain the Mortgage Guaranty Insurance Policy and to pay all
premiums and charges in connection therewith. The mortgage interest rate for
the Mortgage Loan as set forth on Schedule I is net of any such insurance
premium;
(xxxv) The assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(xxxvi) As to Mortgage Loans that are not Co-op Loans and that are
not secured by an interest in a leasehold estate, the Mortgaged Property is
located in the state identified in Schedule I and consists of a single parcel
of real property with a detached single family residence erected thereon, or a
townhouse, or a two-to four-family dwelling, or an individual condominium unit
in a condominium project, or an individual unit in a planned unit development
or a de minimis planned unit development, provided, however, that no residence
or dwelling is a single parcel of real property with a cooperative housing
corporation erected thereon, or a mobile home. As of the date of origination,
no portion of the Mortgaged Property is used for commercial purposes, and
since the date or origination no portion of the Mortgaged Property is used for
commercial purposes;
(xxxvii) Principal payments on the Mortgage Loan commenced no more
than sixty (60) days after the funds were disbursed in connection with the
Mortgage Loan. The Mortgage Note is payable on the first day of each month in
equal monthly installments of principal and interest, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than thirty years from
commencement of amortization;
(xxxviii) [Reserved];
(xxxix) As of the date of origination of the Mortgage Loan, the
Mortgaged Property was lawfully occupied under applicable law, and all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made
or obtained from the appropriate authorities;
(xl) If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development), or stock
in a cooperative housing corporation, such condominium, cooperative or planned
unit development project meets Seller's eligibility requirements as set forth
in Seller's underwriting guidelines;
(xli) There is no pending action or proceeding directly involving
the Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule
or regulation with respect to the Mortgaged Property; and nothing further
remains to be done to satisfy in full all requirements of each such law, rule
or regulation constituting a prerequisite to use and enjoyment of said
property;
(xlii) The Mortgagor has not notified the Seller, and the Seller has
no knowledge of any relief requested or allowed to the Mortgagor under the
Soldiers' and Sailors' Civil Relief Act of 1940;
(xliii) No Mortgage Loan was made in connection with the
construction or rehabilitation of a Mortgaged Property or facilitating the
trade-in or exchange of a Mortgaged Property;
(xliiii) No action has been taken or failed to be taken by Seller on
or prior to the Closing Date which has resulted or will result in an exclusion
from, denial of, or defense to coverage under any Mortgage Guaranty Insurance
Policy (including, without limitation, any exclusions, denials or defenses
which would limit or reduce the availability of the timely payment of the full
amount of the loss otherwise due thereunder to the insured) whether arising
out of actions, representations, errors, omissions, negligence, or fraud of
the Seller, or for any other reason under such coverage;
(xlv) Each Mortgage Loan has been serviced in all material respects
in compliance with Accepted Servicing Practices;
(xlvi) With respect to each Co-op Loan, the related Mortgage is a
valid, enforceable and subsisting first security interest on the related
cooperative shares securing the related cooperative note, subject only to (a)
liens of the cooperative for unpaid assessments representing the Mortgagor's
pro rata share of the cooperative's payments for its blanket mortgage, current
and future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the related
security agreement. There are no liens against or security interest in the
cooperative shares relating to each Co-op Loan (except for unpaid maintenance,
assessments and other amounts owed to the related cooperative which
individually or in the aggregate will not have a material adverse effect on
such Co-op Loan), which have priority over the Seller's security interest in
such cooperative shares;
(xlvii) With respect to each Co-op Loan, a search for filings of
financing statements has been made by a company competent to make the same,
which company is acceptable to FNMA and qualified to do business in the
jurisdiction where the cooperative unit is
located, and such search has not found anything which would materially and
adversely affect the Co-op Loan;
(xlviii) With respect to each Co-op Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the
Internal Revenue Code, and is in material compliance with applicable federal,
state and local laws which, if not complied with, could have a material
adverse effect on the Mortgaged Property;
(il) With respect to each Co-op Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Co-op Lease;
(l) The Mortgage Loan was originated by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and 211 of
the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or similar institution which
is supervised and examined by a federal or state authority;
(li) With respect to any ground lease to which a Mortgaged Property
may be subject: (i) the Mortgagor is the owner of a valid and subsisting
leasehold interest under such ground lease: (ii) such ground lease is in full
force and effect, unmodified and not supplemented by any writing or otherwise;
(iii) all rent, additional rent and other charges reserved therein have been
fully paid to the extent payable as of the Closing Date; (iv) the Mortgagor
enjoys the quiet and peaceful possession of the leasehold estate, subject to
any sublease; (v) the Mortgagor is not in default under any of the terms of
such ground lease, and there are no circumstances which, with the passage of
time or the giving of notice, or both, would result in a default under such
ground lease; (vi) the lessor under such ground lease is not in default under
any of the terms or provisions of such ground lease on the part of the lessor
to be observed or performed; (vii) the lessor under such ground lease has
satisfied any repair or construction obligations due as of the Closing Date
pursuant to the terms of such ground lease; and (viii) the execution, delivery
and performance of the Mortgage do not require the consent (other than those
consents which have been obtained and are in full force and effect) under, and
will not contravene any provision of or cause a default under, such ground
lease; and
(lii) With respect to any broker fees collected and paid on any of
the loans, all broker fees have been properly assessed to the borrower and no
claims will arise as to broker fees that are double charged and for which the
borrower would be entitled to reimbursement.
SCHEDULE IIIC
Representations and Warranties of WMMSC - The WMMSC Mortgage Loans
Washington Mutual Mortgage Securities Corp., as Seller with respect
to the WMMSC Mortgage Loans hereby makes the representations and warranties
set forth in this Schedule IIIC to the Depositor and the Trustee, except as
otherwise expressly provided in this Schedule IIIC, as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule IIIC shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement,
dated as of February 1, 2002 (the "Agreement"), among Credit Suisse First
Boston Mortgage Securities Corp., as depositor (the "Depositor"), DLJ Mortgage
Capital, Inc., as a seller (a "Seller"), Washington Mutual Mortgage Securities
Corp., as a seller (in such capacity, a "Seller") and a servicer (in such
capacity, a "Servicer"), GreenPoint Mortgage Funding, Inc., as a seller (in
such capacity, a "Seller") and a servicer (in such capacity, a "Servicer"),
Olympus Servicing, L.P., as a servicer and special servicer (a "Servicer"),
and JPMorgan Chase Bank, as trustee (the "Trustee"). Each reference to a
"Mortgage Loan" in this Schedule IIIC shall mean a WMMSC Mortgage Loan, and
each reference to a "Mortgaged Property" shall mean a Mortgaged Property
related to a WMMSC Mortgage Loan. Each reference to the "Seller" in this
Schedule IIIC shall mean WMMSC, in its capacity as seller, of the WMMSC
Mortgage Loans.
(i) The information set forth in the Mortgage Loan Schedule with
respect to the WMMSC Mortgage Loans was true and correct in all material
respects at the date or dates respecting which such information is
furnished;
(ii) Each Mortgage is a valid and enforceable (subject to clause
(xvi) below) first lien on an unencumbered estate in fee simple or
leasehold estate in the related Mortgaged Property subject only to (a)
liens for current real property taxes and special assessments; (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording such Mortgage,
such exceptions appearing of record being acceptable to mortgage lending
institutions generally or specifically reflected in the appraisal
obtained in connection with the origination of the Mortgage Loan; (c)
exceptions set forth in the title insurance policy relating to such
Mortgage, such exceptions being acceptable to mortgage lending
institutions generally; and (d) other matters to which like properties
are commonly subject which do not materially interfere with the benefits
of the security intended to be provided by the Mortgage;
(iii) WMMSC had good title to, and was the sole owner of, each
Mortgage Loan free and clear of any encumbrance or lien, and immediately
upon the transfer and assignment herein contemplated, the Trustee shall
have good title to, and will be the sole legal owner of, each Mortgage
Loan, free and clear of any encumbrance or lien (other than any lien
under the Agreement);
(iv) As of the day prior to the Cut-off Date, all payments due on
each Mortgage Loan had been made and no Mortgage Loan had been delinquent
(i.e., was more than 30 days past due) more than once in the preceding 12
months and any such delinquency lasted for no more than 30 days;
(v) There is no late assessment for delinquent taxes outstanding
against any Mortgaged Property;
(vi) There is no offset, defense or counterclaim to any Mortgage
Note, including the obligation of the Mortgagor to pay the unpaid
principal or interest on such Mortgage Note;
(vii) Each Mortgaged Property is free of damage and in good repair,
ordinary wear and tear excepted;
(viii) Each Mortgage Loan at the time it was made complied with all
applicable state and federal laws, including, without limitation, usury,
equal credit opportunity, disclosure and recording laws;
(ix) Each Mortgage Loan was originated by a savings association,
savings bank, credit union, insurance company, or similar institution
which is supervised and examined by a federal or state authority or by a
mortgagee approved by the FHA and will be serviced by an institution
which meets the servicer eligibility requirements established by WMMSC;
(x) Each Mortgage Loan is covered by an ALTA form or CLTA form of
mortgagee title insurance policy or other form of policy of insurance
which, as of the origination date of such Mortgage Loan, was acceptable
to FNMA or FHLMC, and has been issued by, and is the valid and binding
obligation of, a title insurer which, as of the origination date of such
Mortgage Loan, was acceptable to FNMA or FHLMC and qualified to do
business in the state in which the related Mortgaged Property is located.
Such policy insures the originator of the Mortgage Loan, its successors
and assigns as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan subject to the exceptions set forth
in such policy. Such policy is in full force and effect and will be in
full force and effect and inure to the benefit of the Certificateholders
upon the consummation of the transactions contemplated by the Agreement
and no claims have been made under such policy, and no prior holder of
the related Mortgage, including WMMSC, has done, by act or omission,
anything which would impair the coverage of such policy;
(xi) Each Mortgage Loan which had a Loan-to-Value Ratio as of the
Closing Date in excess of 80% was covered by a Mortgage Guaranty
Insurance Policy or an FHA insurance policy or a VA guaranty, and such
policy or guaranty is valid and remains in full force and effect;
(xii) All policies of insurance required by the Agreement (except
for the Mortgage Loans specified in clause (xi) above as not having
Primary Insurance Policies) have been validly issued and remain in full
force and effect, including such policies covering WMMSC;
(xiii) Each insurer issuing a Mortgage Guaranty Insurance Policy is
a Qualified Insurer;
(xiv) Each Mortgage was documented by appropriate FNMA/FHLMC
mortgage instruments in effect at the time of origination, or other
instruments approved by WMMSC;
(xv) The Mortgaged Property securing each Mortgage is improved with
a one- to four-family dwelling unit, including units in a duplex,
condominium project, townhouse, a planned unit development or a de
minimis planned unit development;
(xvi) Each Mortgage and Mortgage Note is the legal, valid and
binding obligation of the maker thereof and is enforceable in accordance
with its terms, except only as such enforcement may be limited by laws
affecting the enforcement of creditors' rights generally and principles
of equity;
(xvii) As of the date of origination, as to Mortgaged Properties
which are units in condominiums or planned unit developments, all of such
units met FNMA or FHLMC requirements, are located in a condominium or
planned unit development projects which have received FNMA or FHLMC
approval, or are approvable by FNMA or FHLMC;
(xviii) Prior to origination or refinancing, an appraisal of each
Mortgaged Property was made by an appraiser on a form satisfactory to
FNMA or FHLMC;
(xix) The Mortgage Loans have been underwritten substantially in
accordance with the applicable underwriting standards of either WMMSC or
the originator of such Mortgage Loans, as applicable;
(xx) All of the Mortgage Loans have "due-on-sale" clauses; by the
terms of the Mortgage Notes, however, the due on sale provisions may not
be exercised at the time of a transfer if prohibited by law;
(xxi) With respect to any Mortgage Loan as to which an affidavit has
been delivered to the Trustee certifying that the original Mortgage Note
was permanently lost or destroyed and has not been replaced, if such
Mortgage Loan is subsequently in default, the enforcement of such
Mortgage Loan or of the related Mortgage by or on behalf of the Trustee
will not be materially adversely affected by the absence of the original
Mortgage Note; and
(xxii) Each Mortgage Loan constitutes a qualified mortgage under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1).
