EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
DLJ MORTGAGE CAPITAL, INC.,
Seller,
CHASE MANHATTAN MORTGAGE CORPORATION,
Master Servicer
CENDANT MORTGAGE CORPORATION,
Seller and Servicer
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
Servicer,
OLYMPUS SERVICING, L.P.,
Servicer and Special Servicer,
BANK ONE, NATIONAL ASSOCIATION,
Trustee
and
JPMORGAN CHASE BANK,
Trust Administrator
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2002
relating to
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2002-AR13
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Table of Contents
Page
----
ARTICLE I DEFINITIONS......................................................................................10
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES....................................52
SECTION 2.01 Conveyance of Trust Fund................................................................52
SECTION 2.02 Acceptance by the Trustee...............................................................55
SECTION 2.03 Representations and Warranties of the Sellers, Master Servicer and Servicers............57
SECTION 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans................60
SECTION 2.05 Delivery of Opinion of Counsel in Connection with Substitutions.........................60
SECTION 2.06 Issuance of Certificates................................................................60
SECTION 2.07 REMIC Provisions........................................................................61
SECTION 2.08 Covenants of the Master Servicer and each Servicer......................................66
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.................................................67
SECTION 3.01 Master Servicer and Servicers to Service Mortgage Loans.................................67
SECTION 3.02 Subservicing; Enforcement of the Obligations of Subservicers............................69
SECTION 3.03 Notification of Adjustments.............................................................70
SECTION 3.04 Trust Administrator to Act as Master Servicer or Servicer...............................71
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts; Certificate Account..................71
SECTION 3.06 Establishment of and Deposits to Escrow Accounts; Permitted Withdrawals from
Escrow Accounts; Payments of Taxes, Insurance and Other Charges.........................75
SECTION 3.07 Access to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections.............................................................................76
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and Certificate Account..............77
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment Insurance and Mortgage
Guaranty Insurance Policy; Claims; Restoration of Mortgaged Property....................79
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements...............................83
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans.........84
SECTION 3.12 Trustee and Trust Administrator to Cooperate; Release of Mortgage Files.................89
SECTION 3.13 Documents, Records and Funds in Possession of the Master Servicer or a Servicer
to be Held for the Trustee..............................................................90
SECTION 3.14 Master Servicing Fee and Servicing Fee..................................................90
SECTION 3.15 Access to Certain Documentation.........................................................91
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SECTION 3.16 Annual Statement as to Compliance.......................................................91
SECTION 3.17 Annual Independent Public Accountants' Servicing Statement; Financial Statements........92
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions Insurance.........................92
SECTION 3.19 Special Serviced Mortgage Loans.........................................................93
ARTICLE IV PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS...................................................94
SECTION 4.01 Priorities of Distribution..............................................................94
SECTION 4.02 Allocation of Losses...................................................................100
SECTION 4.03 Limited Purpose Surety Bond............................................................101
SECTION 4.04 Monthly Statements to Certificateholders...............................................101
SECTION 4.05 Servicer to Cooperate..................................................................103
SECTION 4.06 Cross-Collateralization; Adjustments to Available Funds................................103
SECTION 4.07 Basis Risk Reserve Fund................................................................104
ARTICLE V ADVANCES BY THE MASTER SERVICER AND SERVICERS...................................................106
SECTION 5.01 Advances by the Master Servicer and Servicers..........................................106
ARTICLE VI THE CERTIFICATES...............................................................................107
SECTION 6.01 The Certificates.......................................................................107
SECTION 6.02 Registration of Transfer and Exchange of Certificates..................................107
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates......................................113
SECTION 6.04 Persons Deemed Owners..................................................................113
SECTION 6.05 Access to List of Certificateholders' Names and Addresses..............................113
SECTION 6.06 Maintenance of Office or Agency........................................................114
SECTION 6.07 Book-Entry Certificates................................................................114
SECTION 6.08 Notices to Clearing Agency.............................................................115
SECTION 6.09 Definitive Certificates................................................................115
ARTICLE VII THE DEPOSITOR, THE SELLERS, THE MASTER SERVICER, THE SERVICERS AND THE SPECIAL SERVICER.......116
SECTION 7.01 Liabilities of the Sellers, the Depositor, the Master Servicer, the Servicers
and the Special Servicer...............................................................116
SECTION 7.02 Merger or Consolidation of the Sellers, the Depositor, the Master Servicer, the
Servicers or the Special Servicer......................................................116
SECTION 7.03 Limitation on Liability of the Sellers, the Depositor, the Master Servicer, the
Servicers, the Special Servicer and Others.............................................117
SECTION 7.04 Master Servicer and Servicer Not to Resign; Transfer of Servicing......................118
SECTION 7.05 Master Servicer, Seller and Servicers May Own Certificates.............................118
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TABLE OF CONTENTS
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ARTICLE VIII DEFAULT......................................................................................119
SECTION 8.01 Events of Default......................................................................119
SECTION 8.02 Master Servicer or Trust Administrator to Act; Appointment of Successor................120
SECTION 8.03 Notification to Certificateholders.....................................................122
SECTION 8.04 Waiver of Events of Default............................................................122
ARTICLE IX CONCERNING THE TRUSTEE.........................................................................124
SECTION 9.01 Duties of Trustee......................................................................124
SECTION 9.02 Certain Matters Affecting the Trustee..................................................125
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans..................................127
SECTION 9.04 Trustee May Own Certificates...........................................................127
SECTION 9.05 Trustee's Fees and Expenses............................................................127
SECTION 9.06 Eligibility Requirements for Trustee...................................................128
SECTION 9.07 Resignation and Removal of Trustee.....................................................128
SECTION 9.08 Successor Trustee......................................................................129
SECTION 9.09 Merger or Consolidation of Trustee.....................................................130
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee..........................................130
SECTION 9.11 Office of the Trustee..................................................................131
ARTICLE X CONCERNING THE TRUST ADMINISTRATOR..............................................................132
SECTION 10.01 Duties of Trust Administrator..........................................................132
SECTION 10.02 Certain Matters Affecting the Trust Administrator......................................134
SECTION 10.03 Trust Administrator Not Liable for Certificates or Mortgage Loans......................135
SECTION 10.04 Trust Administrator May Own Certificates...............................................136
SECTION 10.05 Trust Administrator's Fees and Expenses................................................136
SECTION 10.06 Eligibility Requirements for Trust Administrator.......................................137
SECTION 10.07 Resignation and Removal of Trust Administrator.........................................137
SECTION 10.08 Successor Trust Administrator..........................................................138
SECTION 10.09 Merger or Consolidation of Trust Administrator.........................................138
SECTION 10.10 Appointment of Co-Trust Administrator or Separate Trust Administrator..................139
SECTION 10.11 Office of the Trust Administrator......................................................140
SECTION 10.12 Tax Return.............................................................................140
SECTION 10.13 Filings................................................................................140
SECTION 10.14 Determination of Certificate Index.....................................................141
ARTICLE XI TERMINATION....................................................................................141
SECTION 11.01 Termination upon Liquidation or Purchase of all Mortgage Loans.........................141
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TABLE OF CONTENTS
(Continued)
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SECTION 11.02 Procedure Upon Optional Termination....................................................142
SECTION 11.03 Additional Termination Requirements....................................................143
ARTICLE XII MISCELLANEOUS PROVISIONS......................................................................145
SECTION 12.01 Amendment..............................................................................145
SECTION 12.02 Recordation of Agreement; Counterparts.................................................146
SECTION 12.03 Governing Law..........................................................................146
SECTION 12.04 Intention of Parties...................................................................147
SECTION 12.05 Notices................................................................................148
SECTION 12.06 Severability of Provisions.............................................................149
SECTION 12.07 Limitation on Rights of Certificateholders.............................................149
SECTION 12.08 Certificates Nonassessable and Fully Paid..............................................150
SECTION 12.09 Protection of Assets...................................................................150
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TABLE OF CONTENTS
(Continued)
Page
EXHIBITS
Exhibit A: Form of Class A Certificate...................................................................A-1
Exhibit B: Form of Class M Certificate...................................................................B-1
Exhibit C: Form of Group C-B Certificate.................................................................C-1
Exhibit D: Form of Class AR Certificate..................................................................D-1
Exhibit E: Form of Class III-X Certificate...............................................................E-1
Exhibit F: Form of Class V-X Certificate.................................................................F-1
Exhibit G: Servicer Information..........................................................................G-1
Exhibit H: Dividend Mortgage Loan Schedule...............................................................H-1
Exhibit I: Form of Initial Certification of Trustee......................................................I-1
Exhibit J: Form of Final Certification of Trustee........................................................J-1
Exhibit K: Form of Request for Release...................................................................K-1
Exhibit L: Form of Transferor Certificate................................................................L-1
Exhibit M-1: Form of Investment Letter...................................................................M-1-1
Exhibit M-2: Form of Rule 144A Letter....................................................................M-2-1
Exhibit N: Form of Investor Transfer Affidavit and Agreement.............................................N-1
Exhibit O: Form of Transfer Certificate..................................................................O-1
Exhibit P-1: Form of Escrow .............................................................................P-1-1
Exhibit P-2: Form of Escrow..............................................................................P-2-1
Exhibit Q-1: Form of Collection Account..................................................................Q-1-1
Exhibit Q-2: Form of Collection Account..................................................................Q-2-1
Exhibit R: Form of RMIC PMI Policy.......................................................................R-1
Exhibit S: Form of Assignment, Assumption and Recognition Agreement with MLCC............................S-1
SCHEDULES
Schedule I: Mortgage Loan Schedule........................................................................I-1
Schedule IIA: Representations and Warranties of DLJMC.....................................................IIA-1
Schedule IIB: Representations and Warranties of CMMC......................................................IIB-1
Schedule IIC: Representations and Warranties of Cendant...................................................IIC-1
Schedule IID: Representations and Warranties of WMMSC.....................................................IID-1
Schedule IIE: Representations and Warranties of Olympus...................................................IIE-1
Schedule IIIA: Representations and Warranties of DLJMC as to the Mortgage Loans...........................IIIA-1
Schedule IIIB: Representations and Warranties of Cendant as to the Mortgage Loans.........................IIIB-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of April 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"), CHASE MANHATTAN MORTGAGE CORPORATION ("CMMC"), a New Jersey
corporation, in its capacity as master servicer (the "Master Servicer"),
CENDANT MORTGAGE CORPORATION ("Cendant") a New Jersey corporation, in its
capacity as a servicer (a "Servicer") and in its capacity as a seller (a
"Seller"), WASHINGTON MUTUAL MORTGAGE SECURITIES CORP. ("WMMSC"), a Delaware
corporation, in its capacity as a servicer (in such capacity, a "Servicer"),
OLYMPUS SERVICING, L.P. ("Olympus"), a Delaware limited partnership, in its
capacity as a servicer (in such capacity, a "Servicer") and as special
servicer (in such capacity, the "Special Servicer"), BANK ONE, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee") and
JPMORGAN CHASE BANK, a New York banking corporation, as trust administrator
(the "Trust Administrator"). Capitalized terms used in this Agreement and not
otherwise defined will have the meanings assigned to them in Article I below.
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund for federal
income tax purposes will consist of three REMICs ("Subsidiary REMIC 1",
"Subsidiary REMIC 2" and the " Master REMIC"). Subsidiary REMIC 1 will consist
of all of the assets constituting the Trust Fund corresponding to Loan Group
I, Loan Group II, Loan Group III and Loan Group IV and will be evidenced by
the LT-I Interest, LT-I-Excess Interest, LT-II Interest, LT-II-Excess
Interest, LT-III-A Interest, LT-III-B Interest, and LT-IV Interest (the
"Subsidiary REMIC 1 Interests") which will be uncertificated and will
represent the "regular interests" in Subsidiary REMIC 1 and the R-1 Interest
as the single "residual interest" in Subsidiary REMIC 1.
Subsidiary REMIC 2 will consist of the Loan Group V Mortgage Loans
(exclusive of any entitlement to Dividend Returned Interest) and will be
evidenced by the LT-V-A Interest, LT-V-M-1 Interest, LT-V-M-2 Interest, LT-V-B
Interest, and LT-Accrual Interest, (collectively, the LT-V-A Interest,
LT-V-M-1 Interest, LT-V-M-2 Interest, and LT-V-B Interest, are referred to
herein as the "Subsidiary REMIC 2 Accretion Directed Classes" and together
with the LT-Accrual Interest, the "Subsidiary REMIC 2 Regular Interests") and
the R-2 Interest as the single "residual interest" in Subsidiary REMIC 2.
The Master REMIC will consist of the Subsidiary REMIC 1 and REMIC 2
Regular Interests and will be evidenced by the Class I-A Interest, Class I-AS
Interest, Class II-A Interest, Class II-AS Interest, Class III-A Interest,
Class III-X Interest, Class IV-A Interest, Class C-B-1 Interest, Class C-B-2
Interest, Class C-B-3 Interest, Class C-B-4 Interest, Class C-B-5 Interest,
Class C-B-6 Interest, Class V-A Interest, Class V-M-1 Interest, Class V-M-2
Interest, Class V-B Interest, and Class V-X (which will represent the "regular
interests" in the Master REMIC) and the R-3 Interest as the single "residual
interest" in the Master REMIC. The Class AR Certificates will represent
beneficial ownership of the X-0 Xxxxxxxx, X-0 Interest and the R-3 Interest.
The "latest possible maturity date" for federal income tax purposes of all
interests created hereby will be the Latest Possible Maturity Date.
1
Subsidiary REMIC 1:
The Subsidiary REMIC 1 Regular Interests, each of which is hereby
designated a REMIC regular interest for federal income tax purposes, shall
have the following principal balances, and pass-through rates of Certificates
in the manner set forth in the following table:
------------------------------ ------------------------------------ --------------------- --------------------
Subsidiary REMIC 1 Initial Pass Through Related Loan
Interests Balance Rate Group
--------- -------
------------------------------ ------------------------------------ --------------------- --------------------
LT-I(1) Group I Mortgage Loan Weighted I
Principal Balance average Net
Mortgage Rates
of the Group I
Mortgage Loans
less .05%
------------------------------ ------------------------------------ --------------------- --------------------
LT-I-Excess Interest Notional balance equal to Group .05% I
I Mortgage Loan Principal
Balance
------------------------------ ------------------------------------ --------------------- --------------------
LT-II(1) Group II Mortgage Loan Weighted average II
Principal Balance Net Mortgage Rates
of the Group II
Mortgage Loans less
.05%
------------------------------ ------------------------------------ --------------------- --------------------
LT-II-Excess Interest Notional balance equal to II
Group II Mortgage Loan .05%
Principal Balance
------------------------------ ------------------------------------ --------------------- --------------------
LT-III-A(1) Class III-A Principal Balance Weighted average III
Mortgage Loan Principal Balance Net Mortgage Rates
of the Group III
Mortgage Loans
------------------------------ ------------------------------------ --------------------- --------------------
LT-III-B(2) Group III Mortgage Loan Weighted average III
Principal Balance less LT-III-A Net Mortgage Rates
balance of the Group III
Mortgage Loans
------------------------------ ------------------------------------ --------------------- --------------------
LT-IV(1) Group IV Mortgage Loan Weighted IV
Principal Balance average of the
Net Mortgage
Rates of the
Group IV
Mortgage Loans
------------------------------ ------------------------------------ --------------------- --------------------
X-0 X/X X/X X/X
------------------------------ ------------------------------------ --------------------- --------------------
---------------
2
(1) On each Distribution Date, following the allocation of Realized
Losses and payments of principal, each of the Class LT-I Interest, Class LT-II
Interest and Class LT-IV Interest will have a principal balance equal to that
of its Related Loan Group, the Class LT-I-Excess Interest and Class
LT-II-Excess Interest will have notional balances equal to the principal
balance of its Related Loan Group and the Class LT-III-A Interest will have a
principal balance equal to that of the Class III-A Interests..
(2) On each Distribution Date, following the allocation of Realized
Losses and payments of principal, the Class LT-III-B Interest will have a
principal balance equal to that of the excess of the Related Loan Group
balance over that of the Class III-A Certificates.
Subsidiary REMIC 2:
The Subsidiary REMIC 2 Regular Interests, each of which is hereby
designated a REMIC regular interest for federal income tax purposes, shall
have the following principal balances, pass-through rates and Corresponding
Classes of Certificates in the manner set forth in the following table:
------------------------------ --------------------------------- ---------------------- ----------------------
Corresponding
REMIC Initial Pass Through Class of Master
Interests Balance Rate REMIC Interest
--------- -------
------------------------------ --------------------------------- ---------------------- ----------------------
LT-V-A 1/2 Corresponding REMIC 3 (1) V-A
Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LT-V-M-1 1/2 Corresponding REMIC 3 (1) V-M-1
Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LT-V-M-2 1/2 Corresponding REMIC 3 (1) V-M-2
Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LT-V-B 1/2 Corresponding REMIC 3 (1) V-B
Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LT-Accrual Interest 1/2 Mortgage Pool balance (1) N/a
plus 1/2
Overcollateralization Amount
on Closing Date
------------------------------ --------------------------------- ---------------------- ----------------------
X-0 X/x X/x X/x
------------------------------ --------------------------------- ---------------------- ----------------------
(1) A Rate equal to the Net Funds Cap.
On each Distribution Date, 50% of the increase in the Overcollateralization
Amount will be payable as a reduction of the principal balances of the
Subsidiary 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 LT-Accrual Interest. All payments of scheduled principal and prepayments
of principal generated by the Mortgage Loans shall be allocated 50% to the
LT-Accrual Interest, and 50% to the Subsidiary
3
REMIC 2 Accretion Directed Classes (principal payments shall be allocated
among such Subsidiary 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
Subsidiary 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
Subsidiary REMIC 2 Interest payable as principal on the Subsidiary 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 V-X Certificates that result in the reduction in the
Overcollateralization Amount shall be allocated to the LT-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 Subsidiary REMIC 2 Accretion Directed Classes is equal to 50%
of the principal balance of their Corresponding Class, and the Subsidiary
REMIC 2 Accrual Class is equal to 50% of the Aggregate Loan Group Balance of
Loan Group V 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 Interests, is hereby designated as a
"regular interest" in the Master REMIC, together with the minimum
denominations and integral multiples in excess thereof in which such Classes
shall be issuable (except that one Certificate of each Class of Certificates
may be issued in a different amount and, in addition, one Residual Certificate
representing the Tax Matters Person Certificate may be issued in a different
amount):
4
------------------------- ------------------------- -------------------- --------------------- --------------------
Integral
Class Multiples
Principal Pass-Through Minimum in Excess
Balance Rate (per annum) Denomination of Minimum
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-A $98,933,000.00 Variable(1) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-AS(17) (18) 0.05% N/A N/A
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-A $92,306,000.00 Variable(2) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-AS(17) (19) 0.05% N/A N/A
------------------------- ------------------------- -------------------- --------------------- --------------------
Class III-A $100,296,000.00 Variable(3) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class IV-A $30,251,000.00 Variable(4) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class V-A $178,597,000.00 Variable(5) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class AR (6) $100.00 Variable(7) (8) (8)
------------------------- ------------------------- -------------------- --------------------- --------------------
Class III-X (9) (10) $100,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class V-M-1 $7,125,000.00 Variable(11) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class V-M-2 $2,375,000.00 Variable(12) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class V-B $1,900,324.00 Variable(13) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-1 $5,853,000.00 Variable(14) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-2 $2,507,000.00 Variable(14) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-3 $1,672,000.00 Variable(14) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-4 $836,000.00 Variable(14) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-5 $835,000.00 Variable(14) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-6 $836,734.44 Variable(14) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class V-X (15) Variable(16) $100,000 $1
========================= ========================= ==================== ===================== ====================
---------------
(1) The initial Pass-Through Rate for the Class I-A Certificates is
5.971% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class I-A Certificates shall be a per annum rate equal
to the weighted average Net Mortgage Rates of the Mortgage Loans in
Loan Group I as of the second preceding Due Date minus 0.05%.
(2) The initial Pass-Through Rate for the Class II-A Certificates is
6.069% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class II-A Certificates shall be a per annum rate equal
to the weighted average Net Mortgage Rates of the Mortgage Loans in
Loan Group II as of the second preceding Due Date minus 0.05%.
(3) The initial Pass-Through Rate for the Class III-A Certificates is
approximately 5.754% per annum. After the first Distribution Date,
the Pass-Through Rate for the Class III-A Certificates shall be a per
annum rate equal to the weighted average Net Mortgage Rates of the
Mortgage Loans in Loan Group III as of the second preceding Due Date
minus (i) for each Distribution Date to and including the December
2008 Distribution Date, 0.38% and (ii) for each Distribution Date
thereafter, 0.25%.
(4) The initial Pass-Through Rate for the Class IV-A Certificates is
6.365% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-A Certificates shall be a per annum rate equal
to the weighted average Net Mortgage Rates of the Mortgage Loans in
Loan Group IV as of the second preceding Due Date.
(5) The initial Pass-Through Rate for the Class V-A Certificates is 2.23%
per annum. After the first Distribution Date, the Pass-Through Rate
for the Class V-A Certificates shall be
5
a per annum rate equal to the lesser of (a) the sum of the Certificate
Index and the applicable Certificate Margin for such Distribution Date
and (b) the applicable Net Funds Cap.
(6) The Class AR will represent 3 REMIC residual interests - the R-1
Interests (which is the residual interest of REMIC 1), the R-2
Interests (which is the residual interest of REMIC 2) and the R-3
Interests (which is the residual interest of REMIC 3).
(7) The initial Pass-Through Rate for the Class AR Certificates is 5.971%
per annum. After the first Distribution Date, the Pass-Through Rate
for the Class AR Certificates shall be a per annum rate equal to the
weighted average Net Mortgage Rates of the Mortgage Loans in Loan
Group I as of the second preceding Due Date minus 0.05%.
(8) The Class AR Certificates are issued in minimum Percentage Interests
of 20%.
(9) The Class III-X Certificates accrue interest on the related Class
Notional Amount.
(10) The Pass-Through Rate for the Class III-X Certificates for each
Distribution Date to and including the December 2008 Distribution Date
is 0.38% per annum. After the December 2008 Distribution Date, the per
annum Pass-Through Rate for the Class III-X Certificates will be 0.25%.
(11) The initial Pass-Through Rate for the Class V-M-1 Certificates is
2.84% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class V-M-1 Certificates shall be a per annum rate equal
to the lesser of (a) the sum of the Certificate Index and the
applicable Certificate Margin for such Distribution Date and (b) the
applicable Net Funds Cap.
(12) The initial Pass-Through Rate for the Class V-M-2 Certificates is
3.64% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class V-M-2 Certificates shall be a per annum rate equal
to the lesser of (a) the sum of the Certificate Index and the
applicable Certificate Margin for such Distribution Date and (b) the
applicable Net Funds Cap.
(13) The initial Pass-Through Rate for the Class V-B Certificates is 4.59%
per annum. After the first Distribution Date, the Pass-Through Rate
for the Class V-B Certificates shall be a per annum rate equal to the
lesser of (a) the sum of the Certificate Index and the applicable
Certificate Margin for such Distribution Date and (b) the applicable
Net Funds Cap.
(14) The initial Pass-Through Rate for each of the Class C-B-1, Class
C-B-2, Class C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6
Certificates is 6.087% per annum. After the first Distribution Date,
the Pass-Through Rate for each of the Class C-B-1, Class C-B-2, Class
C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6 Certificates shall be
a per annum rate equal to: the quotient, expressed as a percentage of
(a) the sum of (i) the product of (x) the Net WAC Rate of Loan Group
I for that Distribution Date and (y) the Subordinate Component
Balance for Loan Group I immediately prior to such Distribution Date,
(ii) the product of (x) the Net WAC Rate of Loan Group II for that
Distribution Date and (y) the Subordinate Component Balance for Loan
Group II immediately prior to such Distribution Date, (iii) the
product of (x) the Net WAC Rate of Loan Group III for such
Distribution Date and (y) the Subordinate Component Balance for Loan
Group III immediately prior to such Distribution Date, and (iv) the
product of (x) the Net WAC Rate of Loan Group IV for that
Distribution Date and (y) the Subordinate Component Balance for Loan
Group IV immediately prior to such Distribution Date, divided by (b)
6
the aggregate of the Subordinate Component Balances for Loan Group I,
Loan Group II, Loan Group III and Loan Group IV immediately prior to
such Distribution Date.
(15) The Class V-X Certificates accrue interest on the related Class
Notional Amount.
(16) The Pass-Through Rate of the Class V-X Certificates will be the
excess of (i) the Net Funds Cap over (ii) the product of (A) two and
(B) the weighted average Pass-Through Rate of the Subsidiary REMIC 2
Regular Interest with the Subsidiary REMIC 2 Accretion Directed
Classes capped at a rate equal the Pass-Through Rate on Corresponding
Master REMIC Certificate, and the Class LTB-Accrual Interest equal to
zero. Until the required amount of overcollateralization exists,
amounts accruing with respect to the Class V-X Certificates will be
distributed as principal payments to the Class V-A and V-M-1
Certificates and will be paid to the Class V-X Certificates (without
interest) when principal payments received from the Group V Mortgage
Loans are allowed to reduce overcollateralization.
(17) The Class I-AS and Class II-AS Interests will be uncertificated.
(18) The Class I-AS Interests will have a notional balance equal to the
principal balance of the Group I Mortgage Loans.
(19) The Class II-AS Interests will have a notional balance equal to the
principal balance of the Group II Mortgage Loans.
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 I-A, Class II-A, Class III-A, Class IV-A,
Class V-A and Class AR Certificates.
Class B Certificates:............................ The Class C-B-1, Class C-B-2, Class C-B-3, Class C-B-4,
Class C-B-5, Class C-B-6 and Class V-B Certificates.
Class M Certificates:............................ The Class V-M-1 and Class V-M-2 Certificates.
ERISA-Restricted Certificates:.................. Residual Certificates and Private Certificates; and any
Certificates that do not satisfy the applicable ratings
requirement under the Underwriter's Exemption.
Group I Certificates: ......................... The Class I-A and Class AR Certificates.
Group II Certificates: .......................... The Class II-A Certificates.
Group III Certificates: ........................ The Class III-A and Class III-X Certificates.
Group IV Certificates: .......................... The Class IV-A Certificates.
7
Group V Certificates: ........................... The Class V-A, Class V-M-1, Class V-M-2, Class V-B and
Class V-X Certificates.
Group C-B Certificates:.......................... The Class C-B-1, Class C-B-2, Class C-B-3, Class C-B-4,
Class C-B-5 and Class C-B-6 Certificates.
Notional Amount Certificates:.................... The Class III-X and Class V-X Certificates.
LIBOR Certificates:.............................. The Class V-A, Class V-M-1, Class V-M-2 and Class V-B
Certificates.
Offered Certificates:............................ All Classes of Certificates other than the Private
Certificates.
Private Certificates:............................ The Class C-B-4, Class C-B-5, Class C-B-6 and Class V-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 III-X Certificates.
Subordinate Certificates:........................ The Class M, Class B and Class V-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 $524,323,158.91.
8
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 each Seller will hereunder
absolutely assign and, as a precautionary matter grant a security interest, in
and to its rights, if any, in the related Mortgage Loans to the Trustee on
behalf of Certificateholders to ensure that the interest of the
Certificateholders hereunder in the Mortgage Loans is fully protected.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Sellers, the Master Servicer, the Servicers, the Special
Servicer, the Trustee and the Trust Administrator agree as follows:
9
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Accrual Period: For any interest bearing Class of Certificates other
than the LIBOR Certificates and any Distribution Date, the calendar month
immediately preceding the related Distribution Date, and with respect to the
LIBOR Certificates, the period beginning on the immediately preceding
Distribution Date (or the Closing Date, in the case of the first Accrual
Period) and ending on the day immediately preceding such Distribution Date.
Additional Collateral: (i) With respect to any Mortgage 100K Loan,
the Securities Account and the financial assets held therein subject to a
security interest pursuant to the related Mortgage 100K Pledge Agreement, or
(ii) with respect to any Parent Power(R) Mortgage Loan, the related Parent
Power(R) Agreement and collateral pledged pursuant thereto.
Additional Collateral Agreements: Each Mortgage 100K Pledge
Agreement, Parent Power(R) Guaranty and Security Agreement for Securities
Account and Control Agreement, as applicable, for each Additional Collateral
Mortgage Loan.
Additional Collateral Mortgage Loan: A Mortgage Loan that is
supported by Additional Collateral.
Additional Collateral Servicer: MLCC.
Additional Collateral Servicing Agreement: The Additional Collateral
Transfer and Servicing Agreement, dated as of November 1, 2001, between MLCC
and the Master Servicer.
Advance: The payment required to be made by a Servicer or the Master
Servicer, as applicable, with respect to any Distribution Date pursuant to
Section 5.01.
Adverse REMIC Event: As defined in Section 2.07(f).
Adjustment Date: With respect to each Mortgage Loan, each adjustment
date on which the Mortgage Rate thereon changes pursuant to the related
Mortgage Note. The first Adjustment Date following the Cut-off Date as to each
such Mortgage Loan is set forth in the Mortgage Loan Schedule.
10
Aggregate Loan Balance: As of any date of determination will be
equal to the aggregate of the Stated Principal Balances of the Mortgage Loans
as of the last day of the prior month.
Aggregate Loan Group Balance: As to any Loan Group and as of any
date of determination will be equal to the aggregate of the Stated Principal
Balances of the Mortgage Loans in that Loan Group as of the last day of the
related Collection Period.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans, other
than Servicing Fees and Master Servicing Fees, including but not limited to,
late charges, Prepayment Penalties, prepayment fees, fees received with
respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, optional insurance administrative fees
and all other incidental fees and charges.
Applied Loss Amount: As to any Distribution Date, with respect to
the Group V Certificates, the excess, if any, of (i) the aggregate Class
Principal Balances of the Group V Certificates (other than the related
Notional Amount Certificates), after giving effect to all Realized Losses with
respect to the Mortgage Loans in Loan Group V during the Collection Period for
such Distribution Date and payments of principal on such Distribution Date
over (ii) the Aggregate Loan Group Balance for Loan Group V for such
Distribution Date.
Appraised Value: The appraised value of the Mortgaged Property based
upon the appraisal made for the originator at the time of the origination of
the related Mortgage Loan or the sales price of the Mortgaged Property at the
time of such origination, whichever is less, or with respect to any Mortgage
Loan that represents a refinancing, the lower of the appraised value at
origination or the appraised value of the Mortgaged Property based upon the
appraisal made at the time of such refinancing.
Assignment and Assumption Agreement: That certain assignment and
assumption agreement dated as of April 1, 2002, by and between DLJ Mortgage
Capital, Inc., as assignor, and the Depositor, as assignee, relating to the
Mortgage Loans.
Available Distribution Amount: With respect to any Distribution Date
and each of Group I, Group II, Group III and Group IV, the sum of: (i) all
amounts in respect of Scheduled Payments (net of the related Expense Fees) due
on the Due Date in the month in which such Distribution Date occurs and
received prior to the related Determination Date on the related Mortgage
Loans, together with any Advances in respect thereof; (ii) all Insurance
Proceeds (to the extent not applied to the restoration of the Mortgaged
Property or released to the Mortgagor in accordance with the applicable
Servicer's Accepted Servicing Standards), all proceeds under the RMIC PMI
Policy and all Liquidation Proceeds received during the calendar month
preceding the month of that Distribution Date on the related Mortgage Loans,
in each case net of unreimbursed Liquidation Expenses incurred with respect to
such Mortgage Loans; (iii) all Principal Prepayments received during the
related Prepayment Period on the related Mortgage Loans, excluding Prepayment
Penalties and premiums; (iv) amounts received with respect to
11
such Distribution Date as the Substitution Adjustment Amount or Purchase Price
in respect of a Mortgage Loan in the related Loan Group repurchased by the
related Seller or a Servicer as of such Distribution Date, in the case of
clauses (i) through (iv) above reduced by amounts in reimbursement for Monthly
Advances previously made and other amounts as to which a Servicer or the
Master Servicer is entitled to be reimbursed pursuant to Section 3.08 in
respect of the related Mortgage Loans or otherwise, and (v) any amounts
payable as Compensating Interest Payments by a Servicer or the Master Servicer
with respect to the related Mortgage Loans on such Distribution Date. The
Available Distribution Amount shall also be increased by any Required Surety
Payment.
Bankruptcy Code: The United States Bankruptcy Code, as amended from
time to time (11 U.S.C. Sections 101 et seq.).
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Loan Group, Realized Losses on
the Mortgage Loans in that Loan Group incurred as a result of a Deficient
Valuation or Debt Service Reduction.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss
Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to the Group C-B Certificates since the Cut-off Date and (ii) any
permissible reductions in the Bankruptcy Loss Coverage Amount as evidenced by
a letter of each Rating Agency to the Trust Administrator to the effect that
any such reduction will not result in a downgrading, or otherwise adversely
affect, of the then current ratings assigned to such Classes of Certificates
rated by it.
Basis Risk Reserve Fund: The separate Eligible Account created and
initially maintained by the Trust Administrator pursuant to Section 4.07 in
the name of the Trust Administrator, as agent for the Trustee, for the benefit
of the Certificateholders and designated "Bank One, National Association in
trust for registered holders of Credit Suisse First Boston Mortgage Securities
Corp. Mortgage Pass-Through Certificates, Series 2002-AR13." Funds in the
Basis Risk Reserve Fund shall be held in trust for the Certificateholders for
the uses and purposes set forth in this Agreement.
Basis Risk Shortfall: For any Class of LIBOR Certificates and any
Distribution Date, the sum of (i) the excess, if any, of (a) the related
Current Interest calculated on the basis of the lesser of (x) the Certificate
Index plus the applicable Certificate Margin and (y) the Maximum Interest Rate
over (b) the related Current Interest for the applicable Distribution Date;
(ii) any Basis Risk Shortfall remaining unpaid from prior Distribution Dates;
and (iii) 30 days interest on the amount in clause (ii) calculated at a per
annum rate equal to the lesser of (x) the Certificate Index plus the
applicable Certificate Margin and (y) the Maximum Interest Rate.
Beneficial Holder: A Person holding a beneficial interest in any
Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate.
12
Book-Entry Certificates: As specified in the Preliminary Statement.
Book-Entry Form: Any Certificate held through the facilities of the
Depository.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in New York or the state in which the
office of the Master Servicer or any Servicer or the Corporate Trust Office of
the Trustee or Trust Administrator are located are authorized or obligated by
law or executive order to be closed.
Carryforward Interest: For any Class of LIBOR Certificates and 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) interest on
such amount for the related Accrual Period at the applicable Pass-Through
Rate.
Cash Remittance Date: With respect to any Distribution Date, the
Master Servicer and Olympus, 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. With respect to any Distribution
Date and Cendant, the 18th day of the calendar month in which such
Distribution Date occurs, or if such 18th day is not a Business Day, the
Business Day immediately preceding such 18th day. With respect to any
Distribution Date and WMMSC, by 12:00 noon New York City time on the Business
Day immediately preceding such Distribution Date.
Cendant: Cendant Mortgage Corporation, a New Jersey corporation, and
its successors and assigns.
Cendant Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which Cendant is the applicable Seller.
Cendant Serviced Mortgage Loans: The Mortgage Loans identified as
such on the Mortgage Loan Schedule for which Cendant is the applicable
Servicer.
Certificate: Any Certificates executed and authenticated by the
Trust Administrator on behalf of the Trustee for the benefit of the
Certificateholders in substantially the form or forms attached as Exhibits A
through F hereto.
Certificate Account: The separate Eligible Account created and
maintained with the Trust Administrator, or any other bank or trust company
acceptable to the Rating Agencies which is incorporated under the laws of the
United States or any state thereof pursuant to Section 3.05, which account
shall bear a designation clearly indicating that the funds deposited therein
are held in trust for the benefit of the Trust Administrator, as agent for the
Trustee, on behalf of the Certificateholders or any other account serving a
similar function acceptable to the Rating Agencies. Funds in the Certificate
Account may (i) be held uninvested without liability for interest or
compensation thereon or (ii) be invested at the direction of the Trust
Administrator in Eligible Investments and reinvestment earnings thereon (net
of investment losses) shall be
13
paid to the Trust Administrator. Funds deposited in the Certificate Account
(exclusive of the amounts permitted to be withdrawn pursuant to Section
3.08(b)) shall be held in trust for the Certificateholders.
Certificate Balance: With respect to any Certificate at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof minus
all distributions of principal and allocations of Realized Losses, including
Excess Losses or Applied Loss Amounts, as applicable, previously made or
allocated with respect thereto and, in the case of any Subordinate
Certificates, reduced by any such amounts allocated to such Class on prior
Distribution Dates pursuant to Section 4.02.
Certificate Group: Any of Certificate Group I, Certificate Group II,
Certificate Group III, Certificate Group IV or Certificate Group V, as
applicable.
Certificate Group I: Any of the Certificates with a Class
designation beginning with "I" and relating to Loan Group I.
Certificate Group II: Any of the Certificates with a Class
designation beginning with "II" and relating to Loan Group II.
Certificate Group III: Any of the Certificates with a Class
designation beginning with "III" and relating to Loan Group III.
Certificate Group IV: Any of the Certificates with a Class
designation beginning with "IV" and relating to Loan Group IV.
Certificate Group V: Any of the Certificates with a Class
designation beginning with "V" and relating to Loan Group V.
Certificate Group C-B: Any of the Certificates with a Class
designation beginning with "C-B" and relating to Loan Group I, Loan Group II,
Loan Group III and Loan Group IV.
Certificate Index: With respect to each Distribution Date and the
LIBOR Certificates, the rate for one month United States dollar deposits
quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the related
Interest Determination Date relating to each Class of LIBOR Certificates. If
such rate does not appear on such page (or such other page as may replace that
page on that service, or if such service is no longer offered, such other
service for displaying LIBOR or comparable rates as may be reasonably selected
by the Trust Administrator after consultation with DLJMC), the rate will be
the Reference Bank Rate. If no such quotations can be obtained and no
Reference Bank Rate is available, the Certificate Index will be the
Certificate Index applicable to the preceding Distribution Date. On the
Interest Determination Date immediately preceding each Distribution Date, the
Trust Administrator shall determine the Certificate Index for the Accrual
Period commencing on such Distribution Date and inform the Master Servicer and
each Servicer of such rate.
14
Certificate Margin: As to each Class of LIBOR Certificates, the
applicable amount set forth below:
Class Certificate Margin
(1) (2)
V-A 0.39% 0.78%
V-M-1 1.00% 1.50%
V-M-2 1.80% 2.30%
V-B 2.75% 3.25%
-----------
(1) Prior to the Optional Termination Date.
(2) After the Optional Termination Date.
Certificate Register: The register maintained pursuant to Section
6.02(a) hereof.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary Statement.
Class B Certificates: As specified in the Preliminary Statement.
Class III-X Notional Amount: With respect to any Distribution Date
and the Class III-X Certificates, an amount equal to the Class Principal
Balance of the Class III-A Certificates, immediately prior to that
Distribution Date.
Class V-B Principal Payment Amount: For any Distribution Date on or
after the Step-down Date and as long as a Trigger Event has not occurred with
respect to such Distribution Date, will be the amount, if any, by which (x)
the sum of (i) the Class Principal Balance of the Class V-A Certificates and
the aggregate Class Principal Balances of the Class V-M-1 and Class V-M-2
Certificates, in each case, after giving effect to payments on such
Distribution Date and (ii) the Class Principal Balance of the Class V-B
Certificates immediately prior to such Distribution Date exceeds (y) the
lesser of (A) the product of (i) 99.00% and (ii) the Aggregate Loan Group
Balance of Loan Group V for such Distribution Date and (B) the amount, if any,
by which (i) the Aggregate Loan Group Balance of Loan Group V for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Group Balance of
Loan Group V as of the Cut-off Date.
Class V-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 Class Principal Balance of the Class V-A Certificates,
after giving effect to payments on such Distribution Date and (ii) the Class
Principal Balance of the Class V-M-1 Certificates immediately prior to such
15
Distribution Date exceeds (y) the lesser of (A) the product of (i) 94.50% and
(ii) the Aggregate Loan Group Balance for Loan Group V for such Distribution
Date and (B) the amount, if any, by which (i) the Aggregate Loan Group Balance
for Loan Group V for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Group Balance of Loan Group V as of the Cut-off Date.
Class V-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 Class Principal Balance of the Class V-A Certificates
and the Class Principal Balance of the Class V-M-1 Certificates, in each case,
after giving effect to payments on such Distribution Date and (ii) the Class
Principal Balance of the Class V-M-2 Certificates immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 97.00% and
(ii) the Aggregate Loan Group Balance for Loan Group V for such Distribution
Date and (B) the amount, if any, by which (i) the Aggregate Loan Group Balance
for Loan Group V for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Group Balance of Loan Group V as of the Cut-off Date.
Class V-X Distributable Amount: With respect to any Distribution
Date and the Class V-X Certificates, the sum of (i) the amount of interest
accrued during the related Accrual Period at the related Pass-Through Rate on
the Class Notional Amount for such Distribution Date and (ii) the
Overcollateralization Release Amount, if any, for such Distribution Date.
Class V-X Notional Amount: With respect to any Distribution Date and
the Class V-X Certificates, an amount equal to the aggregate Stated Principal
Balances of the Mortgage Loans in Loan Group V as of the first day of the
related Collection Period.
Class Interest Shortfall: As to any Distribution Date and Class of
Group I Certificates, Group II Certificates, Group III Certificates and Group
IV Certificates, the amount by which the amount described in clause (i) of the
definition of Interest Distribution Amount for such Class, exceeds the amount
of interest actually distributed on such Class on such Distribution Date.
Class M Certificates: As specified in the Preliminary Statement.
Class Notional Amount: Either of the Class III-X Notional Amount or
the Class V-X Notional Amount, as applicable.
Class Principal Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest-bearing Group I Certificates, Group II Certificates, Group III
Certificates and Group IV Certificates, the amount by which the aggregate
Class Interest Shortfalls for such Class on prior Distribution Dates exceeds
the amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Interest Distribution Amount.
16
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, the nominee of which is CEDE & Co., as the
registered Holder of the Book-Entry Certificates. The Clearing Agency shall at
all times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York.
Closing Date: May 8, 2002.
Code: The Internal Revenue Code of 1986, as amended.
Collection Account: The accounts established and maintained by the
Master Servicer or a Servicer in accordance with Section 3.05.
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 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. For any Distribution Date and
Cendant Serviced Mortgage Loans, the lesser of (i) the aggregate Servicing Fee
payable to Cendant in respect of Cendant Serviced Mortgage Loans for such
Distribution Date and (ii) the aggregate Prepayment Interest Shortfall with
respect to the Cendant Serviced Mortgage Loans. 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 Master Serviced
Mortgage Loans, the lesser of (i) one twelfth (1/12) of 0.25% of the aggregate
Stated Principal Balance of the Master Serviced Mortgage Loans, as of the Due
Date in the month of such Distribution Date, and (ii) the aggregate Prepayment
Interest Shortfall with respect to the Master Serviced Mortgage Loans.
Control Agreement: With respect to each Mortgage 100K Loan, the
Xxxxxxx Xxxxx Pledged Collateral Account Control Agreement between the
guarantor or mortgagor, as applicable, the Additional Collateral Servicer and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, pursuant to which the
guarantor or mortgagor, as applicable, has granted a security interest in a
Securities Account.
Corporate Trust Office: With respect to the Trustee, the designated
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxx 00xx Xxxxxx
Xxxxx-0, Xxx Xxxx, Xxx Xxxx 00000-00000. With respect to the Trust
Administrator, the designated office of the Trust Administrator at which at
any particular time its
17
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-AR13, except for purposes of Section 6.06, such
term shall mean the office or agency of the Trust Administrator located at 00
Xxxxx Xxxxxx, 000 Xxxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Corresponding Classes of Certificates: With respect to each
subsidiary REMIC Regular Interest, any Class of Certificates appearing
opposite such subsidiary REMIC Regular Interest in the Preliminary Statement.
Credit Support Depletion Date: The first Distribution Date on which
the aggregate Class Principal Balances of the Group C-B Certificates has been
or will be reduced to zero.
Current Interest: For any Class of Group V Certificates other than
the Class V-X Certificates and Distribution Date, the amount of interest
accruing at the applicable Pass-Through Rate on the related Class Principal
Balance or Class Notional Amount, as applicable, of such Class during the
related Accrual Period; provided, that as to each Class of Group V
Certificates the Current Interest shall be reduced by a pro rata portion of
any Interest Shortfalls to the extent not covered by Monthly Excess Interest.
Curtailment: Any payment of principal on a Mortgage Loan, made by or
on behalf of the related Mortgagor, other than a Scheduled Payment, a prepaid
Scheduled Payment or a Payoff, which is applied to reduce the outstanding
Stated Principal Balance of the Mortgage Loan.
Custodial Agreement: An agreement, dated as of the date hereof,
among a custodian, the Trustee and the Trust Administrator, pursuant to which
the Trustee appoints such custodian to hold any of the documents or
instruments referred to in Section 2.01 of this Agreement as agent for the
Trustee.
Custodian: A custodian which is appointed pursuant to a Custodial
Agreement. Any Custodian so appointed shall act as agent on behalf of the
Trustee, and shall be compensated by the Trust Administrator or as otherwise
specified therein. The Trustee shall remain at all times responsible under the
terms of this Agreement, notwithstanding the fact that certain duties have
been assigned to a Custodian.
Cut-off Date: April 1, 2002.
Cut-off Date Pool Principal Balance: $524,323,158.91.
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
18
respect to WMMSC, the Data Remittance Date shall be no later than 12:00 noon,
five Business Days before the related Distribution Date.
Debt Service Reduction: With respect to a Mortgage Loan in Loan
Group I, Loan Group II, Loan Group III or Loan Group IV, a reduction by a
court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or any reduction that results in a permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Deficient Valuation: With respect to any Mortgage Loan in Loan Group
I, Loan Group II, Loan Group III or Loan Group IV, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the
then outstanding indebtedness under the Mortgage Loan, or that results in a
permanent forgiveness of principal, which valuation in either case results
from a proceeding under the Bankruptcy Code.
Deferred Amount: For any Class of Group V Subordinate Certificates
(other than the Class V-X Certificates) and Distribution Date, will equal the
amount by which (x) the aggregate of the Applied Loss Amounts previously
applied in reduction of the Class Principal Balance thereof exceeds (y) the
aggregate of amounts previously paid in reimbursement thereof.
Definitive Certificate: As defined in Section 6.07.
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Rate: 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 in Loan Group V 60 or more
days delinquent (including all foreclosures, bankruptcies and REO Properties)
as of the close of business on the last day of such month, and the denominator
of which is the Aggregate Loan Group Balance of Loan Group V as of the close
of business on the last day of such month.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate"
or the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Depositor: Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
Depository Agreement: The Letter of Representation dated as of the
Closing Date by and among DTC, the Depositor and the Trust Administrator for
the benefit of the Trustee.
19
Determination Date: With respect to each Distribution Date, the 10th
day of the calendar month in which such Distribution Date occurs or, if such
10th day is not a Business Day, the Business Day immediately succeeding such
Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trust Administrator based upon an Opinion of Counsel that
the holding of an Ownership Interest in a Class AR Certificate by such Person
may cause the REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for 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 May 28, 2002.
Dividend Mortgage Loan: Any Mortgage Loan, identified on Exhibit H
hereto, containing provisions generally entitling the Mortgagor thereunder to
receive Dividend Payments.
Dividend Payment: With respect to each Dividend Mortgage Loan,
payments made at the end of each of the first four years of the term of such
Dividend Mortgage Loan by the related Servicer to the related Mortgagor,
consisting of the twelve immediately preceding Dividend Retained Interest
Payments.
Dividend Retained Interest Payments: With respect to any Dividend
Mortgage Loans and Distribution Date, the amount retained by the applicable
Servicer from the Scheduled Payment due on the related Due Date, equal to 1/12
of the Dividend Retained Rate for that Due Date and the Stated Principal
Balance of that Mortgage Loan immediately prior to that Due Date.
Dividend Retained Rate: For any Dividend Mortgage Loan and Due Date,
the rate specified for such Mortgage Loan on Exhibit H hereto.
20
Dividend Returned Interest: With respect to any Dividend Mortgage
Loan, any related Dividend Payment that the related Mortgagor is not entitled
to receive pursuant to the terms of the related Mortgage Note.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation, and its
successors and assigns.
DLJMC Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which DLJMC is the applicable Seller.
DTC: The Depository Trust Company.
Due Date: With respect to each Mortgage Loan and any Distribution
Date, the date on which Scheduled Payments on such Mortgage Loan are due which
is either the first day of the month of such Distribution Date, or if
Scheduled Payments on such Mortgage Loan are due on a day other than the first
day of the month, the date in the calendar month immediately preceding the
Distribution Date on which such Scheduled Payments are due, exclusive of any
days of grace.
Eligible Account: Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short term debt obligations of
such holding company) have been rated by each Rating Agency in its highest
short-term rating category, or (iii) a segregated trust account or accounts
(which shall be a "special deposit account") maintained with the Trustee, the
Trust Administrator or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Trustee, the Trust Administrator and the Rating Agencies.
Eligible Accounts may bear interest.
Eligible Institution: An institution having the highest short-term
debt rating, and one of the two highest long-term debt ratings of the Rating
Agencies or the approval of the Rating Agencies.
Eligible Investments: Any one or more of the obligations and
securities listed below:
1. direct obligations of, and obligations fully guaranteed by, the
United States of America, or any agency or instrumentality of the
United States of America the 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;
21
2. federal funds, demand and time deposits in, certificates of deposits
of, or bankers' acceptances issued by, any depository institution or
trust company incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision
and examination by federal and/or state banking authorities, so long
as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt obligations of such
holding company) are rated in one of two of the highest ratings by
each of the Rating Agencies, and the long-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the long-term debt obligations of
such holding company) are rated in one of two of the highest
ratings, by each of the Rating Agencies;
3. repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered
into with a depository institution or trust company (acting as a
principal) rated A or higher by the Rating Agencies; provided,
however, that collateral transferred pursuant to such repurchase
obligation must be of the type described in clause (i) above and
must (A) be valued daily at current market price plus accrued
interest, (B) pursuant to such valuation, be equal, at all times, to
105% of the cash transferred by the Trustee or the Trust
Administrator in exchange for such collateral, and (C) be delivered
to the Trustee or the Trust Administrator or, if the Trustee or the
Trust Administrator, as applicable, is supplying the collateral, an
agent for the Trustee or the Trust Administrator, in such a manner
as to accomplish perfection of a security interest in the collateral
by possession of certificated securities;
4. securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of
America or any state thereof which has a long-term unsecured debt
rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
5. commercial paper having an original maturity of less than 365 days
and issued by an institution having a short-term unsecured debt
rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
6. a guaranteed investment contract approved by each of the Rating
Agencies and issued by an insurance company or other corporation
having a long-term unsecured debt rating in the highest available
rating category of each of the Rating Agencies at the time of such
investment;
7. money market funds (which may be 12b-1 funds as contemplated under
the rules promulgated by the Securities and Exchange Commission
under the Investment Company Act of 1940) having ratings in the
highest available rating category of Xxxxx'x and one of the two
highest available rating categories of S&P at the time
22
of such investment (any such money market funds which provide for
demand withdrawals being conclusively deemed to satisfy any maturity
requirements for Eligible Investments set forth herein) including
money market funds of the Master Servicer, a Servicer, the Trustee
or the Trust Administrator and any such funds that are managed by
the Master Servicer, a Servicer, the Trustee or the Trust
Administrator or their respective Affiliates or for the Master
Servicer, a Servicer, the Trustee or the Trust Administrator or any
Affiliate of such Person acts as advisor, as long as such money
market funds satisfy the criteria of this subparagraph (7); and
8. such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies, result in
the downgrading or withdrawal of the Ratings of the Certificates;
provided, however, that no such instrument shall be an Eligible
Investment if such instrument evidences either (i) a right to receive only
interest payments with respect to the obligations underlying such instrument,
or (ii) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of greater than 120% of
the yield to maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements (without regard
to the ratings requirements) of an Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The separate account or accounts created and
maintained by the Master Servicer or a Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, mortgage insurance premiums, fire and hazard
insurance premiums, and any other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or any
other related document.
Event of Default: As defined in Section 8.01 hereof.
Excess Loss: The amount of any (i) Fraud Loss in excess of the Fraud
Loss Coverage Amount on a Mortgage Loan in Loan Group I, Loan Group II, Loan
Group III or Loan Group IV realized after the Fraud Loss Coverage Termination
Date, (ii) Special Hazard Loss in excess of the Special Hazard Loss Coverage
Amount on a Mortgage Loan in Loan Group I, Loan Group II, Loan Group III or
Loan Group IV realized after the Special Hazard Coverage Termination Date or
(iii) Bankruptcy Loss in excess of the Bankruptcy Loss Coverage Amount on a
Mortgage Loan in Loan Group I, Loan Group II, Loan Group III or Loan Group IV
realized after the Bankruptcy Coverage Termination Date.
23
Expense Fee Rate: As to each Mortgage Loan, the sum of the Master
Servicing Fee, the related Servicing Fee Rate, the Trust Administrator Fee
Rate, any primary mortgage guaranty insurance fee rate, if applicable, the
RMIC PMI Rate, if applicable, and, with respect to each Dividend Mortgage
Loan, the applicable Dividend Retained Rate.
Expense Fees: As to each Mortgage Loan and Distribution Date, the
sum of the Master Servicing Fee, the related Servicing Fee, the Trust
Administrator Fee, and any primary mortgage guaranty insurance premium, if
applicable, any RMIC PMI Fee, if applicable, and, with respect to each
Dividend Mortgage Loan, any Dividend Retained Interest Payments, in each case
for such Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan in Loan Group I, Loan Group
II, Loan Group III or Loan Group IV as to which a Fraud Loss has occurred.
Fraud Loss Coverage Amount: The aggregate amount of Fraud Losses
that are allocated solely to the Group C-B Certificates as of the Closing
Date, $6,686,517, subject to reduction from time to time by the amount of
Fraud Losses allocated to the Group C-B Certificates. On each anniversary
prior to the fifth anniversary of the Cut-off Date, the Fraud Loss Coverage
Amount will be reduced as follows: on each of the first, second, third and
fourth anniversaries of the Cut-off Date, the Fraud Loss Coverage Amount will
be reduced to an amount equal to the lesser of (i) 1% of the aggregate Stated
Principal Balance of the Mortgage Loans in Loan Group I, Loan Group II, Loan
Group III and Loan Group IV and (ii) the excess of the Fraud Loss Coverage
Amount as of the preceding anniversary of the Cut-off Date over the cumulative
amount of Fraud Losses on the Mortgage Loans in Loan Group I, Loan Group II,
Loan Group III and Loan Group IV allocated to the Group C-B Certificates since
such preceding anniversary or the Cut-off Date, as the case may be; and (c) on
the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
applicable Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Liquidated Mortgage Loans in
Loan Group I, Loan Group II, Loan Group III and Loan Group IV as to which a
loss is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Mortgage Guaranty
Insurance Policy because of such fraud, dishonesty or misrepresentation.
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Group: When used with respect to the Mortgage Loans, any of Group I,
Group II, Group III, Group IV or Group V or with respect to the Certificates,
the Class or Classes of Certificates that relate to the corresponding Group or
Groups.
Group I: With respect to the Mortgage Loans, the pool of adjustable
rate Mortgage Loans identified in the related Mortgage Loan Schedule as having
been assigned to Group I or with respect to the Certificates, the Class I-A
and Class AR Certificates.
Group I Excess Interest Amount: For any Distribution Date, the
amount equal to the product of the Group I Excess Interest Rate and the Stated
Principal Balance of the Mortgage Loans in Loan Group I as of the second
preceding Due Date after giving effect to Scheduled Payments for such Due
Date, whether or not received, or for the initial Distribution Date, the
Cut-off Date.
Group I Excess Interest Rate: For any Distribution Date, a per annum
rate equal to 0.050%.
Group I Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group I which became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group I Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and (ii) the Senior Prepayment Percentage of the Liquidation Principal
with respect to such Mortgage Loan.
Group I Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Principal Balances of the Class I-A and Class AR Certificates
immediately prior to such Distribution Date and the denominator of which is
the aggregate of the Stated Principal Balances of the Mortgage Loans in Loan
Group I, as of the first day of the related Due Period; provided, however, in
no event will the Group I Senior Percentage exceed 100%.
Group I Senior Principal Distribution Amount: As to any Distribution
Date, the sum of (i) the Group I Senior Percentage of the Principal Payment
Amount for Loan Group I, (ii) the Senior Prepayment Percentage of the
Principal Prepayment Amount for Loan Group I, and (iii) the Group I Senior
Liquidation Amount.
Group I Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group I Senior Percentage.
Group II: With respect to the Mortgage Loans, the pool of adjustable
rate Mortgage Loans identified in the related Mortgage Loan Schedule as having
been assigned to Group II or with respect to the Certificates, the Class II-A
Certificates.
Group II Excess Interest Amount: For any Distribution Date, the
amount equal to the product of the Group II Excess Interest Rate and the
Stated Principal Balance of the Mortgage Loans in Loan Group II as of the
second preceding Due Date after giving effect to Scheduled Payments for such
Due Date, whether or not received, or for the initial Distribution Date, the
Cut-off Date.
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Group II Excess Interest Rate: For any Distribution Date, a per
annum rate equal to 0.050%.
Group II Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group II which became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group II Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and (ii) the Senior Prepayment Percentage of the Liquidation Principal
with respect to such Mortgage Loan.
Group II Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balance of the Class II-A Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate of the Stated
Principal Balances of the Mortgage Loans in Loan Group II, as of the first day
of the related Due Period; provided, however, in no event will the Group II
Senior Percentage exceed 100%.
Group II Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group II Senior Percentage of the
Principal Payment Amount for Loan Group II, (ii) the Senior Prepayment
Percentage of the Principal Prepayment Amount for Loan Group II, and (iii) the
Group II Senior Liquidation Amount.
Group II Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group II Senior Percentage.
Group III: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the related Mortgage Loan
Schedule as having been assigned to Group III or with respect to the
Certificates, the Class III-A and Class III-X Certificates.
Group III Senior Liquidation Amount: As to any Distribution Date,
the aggregate, for each Mortgage Loan in Loan Group III which became a
Liquidated Mortgage Loan during the related Prepayment Period, of the lesser
of (i) the Group III Senior Percentage of the Stated Principal Balance of such
Mortgage Loan and (ii) the Senior Prepayment Percentage of the Liquidation
Principal with respect to such Mortgage Loan.
Group III Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balance of the Class III-A Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate of the Stated
Principal Balances of the Mortgage Loans in Loan Group III, as of the first
day of the related Due Period; provided, however, in no event will the Group
III Senior Percentage exceed 100%.
Group III Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group III Senior Percentage of the
Principal Payment Amount for Loan Group III, (ii) the Senior Prepayment
Percentage of the Principal Prepayment Amount for Loan Group III, and (iii)
the Group III Senior Liquidation Amount.
26
Group III Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group III Senior Percentage.
Group IV: With respect to the Mortgage Loans, the pool of adjustable
rate Mortgage Loans identified in the related Mortgage Loan Schedule as having
been assigned to Group IV or with respect to the Certificates, the Class IV-A
Certificates.
Group IV Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group IV which became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group IV Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and (ii) the Senior Prepayment Percentage of the Liquidation Principal
with respect to such Mortgage Loan.
Group IV Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balance of the Class IV-A Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate of the Stated
Principal Balances of the Mortgage Loans in Loan Group IV, as of the first day
of the related Due Period; provided, however, in no event will the Group IV
Senior Percentage exceed 100%.
Group IV Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group IV Senior Percentage of the
Principal Payment Amount for Loan Group IV, (ii) the Senior Prepayment
Percentage of the Principal Prepayment Amount for Loan Group IV, and (IV) the
Group IV Senior Liquidation Amount.
Group IV Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group IV Senior Percentage.
Group V: With respect to the Mortgage Loans, the pool of adjustable
rate Mortgage Loans identified in the related Mortgage Loan Schedule as having
been assigned to Group V or with respect to the Certificates, the Group V
Certificates.
Group V Certificates: The Class V-A, Class V-M-1, Class V-M-2, Class
V-B Class V-B and Class V-X Certificates.
Group V Senior Certificates: The Class V-A Certificates.
Group V 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 V-M-1, Class V-M-2 and
Class V-B Certificates and the Overcollateralization Amount (which, for
purposes of this definition only, shall not be less than zero), in each case
after giving effect to payments on such Distribution Date (assuming no Trigger
Event has occurred), and the denominator of which is the Aggregate Loan Group
Balance for Loan Group V for such Distribution Date.
Group V 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
27
Distribution Date, will be the amount, if any, by which (x) the Class
Principal Balance of the Class V-A Certificates, immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 87.00% and
(ii) the Aggregate Loan Group Balance for Loan Group V for such Distribution
Date and (B) the amount, if any, by which (i) the Aggregate Loan Group Balance
for Loan Group V for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Group Balance of Loan Group V as of the Cut-off Date.
Group V Subordinate Certificates: The Class V-M-1, Class V-M-2,
Class V-B and Class V-X Certificates.
Group C-B Percentage: For any Distribution Date, the aggregate Class
Principal Balance of the Group C-B Certificates immediately prior to that
Distribution Date divided by the sum of the outstanding Aggregate Loan Group
Balance of the Mortgage Loans in Loan Group I, Loan Group II, Loan Group III
and Loan Group IV immediately prior to that Distribution Date.
Index: With respect to any Mortgage Loan and each related Adjustment
Date, the index as specified in the related Mortgage Note.
Indirect Participants: Entities, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly.
Initial Bankruptcy Loss Coverage Amount: $100,000.
Initial Class Principal Balance: As set forth in the Preliminary
Statement.
Insolvency Proceeding: As defined in Section 4.03(h).
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any Mortgage Guaranty Insurance Policy, the RMIC PMI Policy, any
standard hazard insurance policy, flood insurance policy or title insurance
policy, including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds of any primary mortgage guaranty
insurance policies, including, without limitation, the RMIC PMI Policy and any
other Insurance Policies with respect to the Mortgage Loans, to the extent
such proceeds are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the Master Servicer's
or a Servicer's normal servicing procedures.
Interest Determination Date: With respect to the LIBOR Certificates
and for each Accrual Period, the second LIBOR Business Day preceding the
commencement of such Accrual Period.
Interest Distribution Amount: With respect to any Distribution Date
and interest-bearing Class of Group I Certificates, Group II Certificates,
Group III Certificates and Group IV Certificates, the sum of (i) one month's
interest accrued during the related Accrual Period at the applicable
Pass-Through Rate for such Class on the related Class Principal Balance
28
or Class Notional Amount, as applicable, subject to reduction pursuant to
Section 4.01(I)(B), and (ii) any Class Unpaid Interest Amounts for such Class
and Distribution Date.
Interest Remittance Amount: For any Distribution Date and the
Mortgage Loans in Loan Group V, an amount equal to the sum of (1) all interest
collected (other than Payaheads) or advanced in respect of Scheduled Payments
on the Mortgage Loans in Loan Group V 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 Master Servicer, the
applicable Servicer and the Trust Administrator with respect to such Mortgage
Loans, to the extent allocable to interest, (2) all Compensating Interest
Payments paid by a Servicer or the Master Servicer with respect to the
Mortgage Loans in Loan Group V with respect to the related Prepayment Period,
(3) the portion of any Substitution Adjustment Amount or Purchase Price paid
with respect to such Mortgage Loans during the related Collection Period
allocable to interest, (4) all Net Liquidation Proceeds and any other
recoveries (net of unreimbursed Advances, Servicing Advances and expenses, to
the extent allocable to interest, and unpaid Expense Fees) collected with
respect to the Mortgage Loans in Loan Group V during the related Collection
Period, to the extent allocable to interest, (5) the sum of (a) Group I Excess
Interest Amount and (b) the Group II Excess Interest Amount for such
Distribution Date, (6) any Dividend Returned Interest received on the Mortgage
Loans in Loan Group V, and (7) any excess of monies in the Basis Risk Reserve
Fund over $5,000.
Interest Shortfall: For any Distribution Date and the Mortgage Loans
in Loan Group V, an amount equal to the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rate) on
Mortgage Loans in Loan Group V 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 in Loan Group V 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.
29
Limited Purpose Surety Bond: The Limited Purpose Surety Bond (Policy
No. AB0039BE), dated February 28, 1996 in respect to certain Additional
Collateral Mortgage Loans, issued by Ambac Assurance Corporation (f/k/a Ambac
Indemnity Corporation) for the benefit of certain beneficiaries, including the
Trustee for the benefit of the Certificateholders, but only to the extent that
such Limited Purpose Surety Bond covers any Additional Collateral Mortgage
Loans.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which the Master Servicer or a Servicer has determined (in accordance with
this Agreement) that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan, including the final
disposition of the related REO Property, whether from Insurance Proceeds,
Liquidation Proceeds or otherwise.
Liquidation Expenses: Customary and reasonable "out of pocket"
expenses incurred by the Master Servicer or a Servicer (or the related
Sub-Servicer) in connection with the liquidation of any defaulted Mortgage
Loan and not recovered by the related Servicer (or the related Sub-Servicer)
under a Mortgage Guaranty Insurance Policy for reasons other than such
Servicer's failure to comply with Section 3.09 hereof, such expenses
including, without limitation, legal fees and expenses, any unreimbursed
amount expended by the Master Servicer or a Servicer pursuant to Section 3.11
hereof respecting the related Mortgage and any related and unreimbursed
expenditures for real estate property taxes or for property restoration or
preservation to the extent not previously reimbursed under any hazard
insurance policy for reasons other than such Servicer's failure to comply with
Section 3.11 hereof.
Liquidation Principal: As to any Distribution Date and a Loan Group,
the principal portion of Liquidation Proceeds received with respect to each
Mortgage Loan in that Loan Group, but not in excess of the principal balance
of such Mortgage Loan, which became a Liquidated Mortgage Loan (but not in
excess of the principal balance thereof) during the preceding calendar month.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property related to a Mortgage Loan and any other proceeds
received in connection with an REO Property, plus, with respect to a defaulted
Mortgage Loan that is an Additional Collateral Mortgage Loan, the amount
realized on the related Additional Collateral with respect to such Mortgage
Loan in accordance with Section 3.11.
Loan Group: Any of Loan Group I, Loan Group II, Loan Group III, Loan
Group IV or Loan Group V, as applicable.
Loan Group I: All Mortgage Loans identified as Loan Group I Mortgage
Loans on the Mortgage Loan Schedule.
30
Loan Group II: All Mortgage Loans identified as Loan Group II
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group III: All Mortgage Loans identified as Loan Group III
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group IV: All Mortgage Loans identified as Loan Group IV
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group V: All Mortgage Loans identified as Loan Group V Mortgage
Loans on the Mortgage Loan Schedule.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the Appraised Value of the Mortgaged Property or, in the case of a
Qualified Substitute Mortgage Loan, is the appraised value of the Mortgaged
Property based upon an appraisal made within 180 days prior to the date of
substitution of such Qualified Substitute Mortgage Loan for a Deleted Mortgage
Loan. For the avoidance of doubt, the calculation of the Loan-to-Value Ratio
with respect to any Additional Collateral Loan excludes the value of all
related Additional Collateral.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Master REMIC: As described in the Preliminary Statement.
Master Serviced Mortgage Loans: The Mortgage Loans directly serviced
by an entity other than Cendant, WMMSC or Olympus.
Master Servicer: Chase Manhattan Mortgage Corporation, a New Jersey
corporation, its successors and assigns.
Master Servicing Employees: As defined in Section 3.18 hereof.
Master Servicing Fee: As to each Mortgage Loan other than a WMMSC
Serviced Mortgage Loan and any Distribution Date, an amount equal to one
month's interest at the Master Servicing Fee Rate on the Stated Principal
Balance of such Mortgage Loan calculated as of the first day of the related
Due Period, subject to reduction as provided in Section 3.14. For the
avoidance of doubt, there is no Master Servicing Fee with respect to the WMMSC
Serviced Mortgage Loans.
Master Servicing Fee Rate: As to each Mortgage Loan other than a
WMMSC Serviced Mortgage Loan, a per annum rate equal to 0.0025%. For the
avoidance of doubt, there is no Master Servicing Fee Rate with respect to the
WMMSC Serviced Mortgage Loans.
Maximum Interest Rate: With respect to the LIBOR Certificates and
any Distribution Date, an annual rate equal to the weighted average of the
Maximum Mortgage Rates of the Mortgage Loans in Loan Group V minus the Expense
Fee Rate.
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Maximum Mortgage Rate: With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
Minimum Mortgage Rate: With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
MLCC: Xxxxxxx Xxxxx Credit Corporation and its successors in
interest.
Monthly Excess Cashflow: For any Distribution Date, an amount equal
to the sum of the Monthly Excess Interest and Overcollateralization Release
Amount, if any, for such date.
Monthly Excess Interest: For any Distribution Date, the excess of
the Interest Remittance Amount after the application of items (i) through (iv)
in the distribution thereof, pursuant to Section 4.01(II)(a).
Moody's: Xxxxx'x Investors Service, Inc. or any successor thereto.
Mortgage: With respect to a Mortgage Loan, the mortgage, deed of
trust or other instrument creating a first lien on a fee simple or leasehold
estate in real property securing a Mortgage Note.
Mortgage 100K Loan: A Mortgage Loan secured by Additional Collateral
in the form of a security interest in the Securities Account and the financial
assets held therein and having a value, as of the date of origination of such
Mortgage Loan, of at least equal to the related Original Additional Collateral
Requirement.
Mortgage 100K Pledge Agreement: With respect to each Mortgage 100K
Loan, the Pledge Agreement for Securities Account between the related
mortgagor and the Additional Collateral Servicer pursuant to which such
mortgagor granted a security interest in the related securities and other
financial assets held therein.
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 Price: The price, calculated as set forth in
Section 11.01, to be paid in connection with the purchase of the Mortgage
Loans pursuant to an Optional Termination of the Trust Fund.
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Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the related Seller to reflect the addition of Qualified
Substitute Mortgage Loans and the purchase of Mortgage Loans pursuant to
Section 2.02 or 2.03) transferred to the Trustee as part of the Trust Fund and
from time to time subject to this Agreement, attached hereto as Schedule I,
setting forth the following information with respect to each Mortgage Loan and
applicable Servicer by Loan Group:
1. the Mortgage Loan identifying number;
2. the Mortgagor's name;
3. the street address of the Mortgaged Property including the state and
zip code;
4. a code indicating the type of Mortgaged Property and the occupancy
status.
5. the original months to maturity or the remaining months to maturity
from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule;
6. the Loan-to-Value Ratio at origination;
7. the Mortgage Rate as of the Cut-off Date;
8. the stated maturity date;
9. the amount of the Scheduled Payment as of the Cut-off Date;
10. the original principal amount of the Mortgage Loan;
11. the principal balance of the Mortgage Loan as of the close of
business on the Cut-off Date, after deduction of payments of
principal due on or before the Cut-off Date whether or not
collected;
12. a code indicating the purpose of the Mortgage Loan (i.e., purchase,
rate and term refinance, equity take-out refinance);
13. whether such Mortgage Loan has a Prepayment Penalty;
14. whether such Mortgage Loan is a RMIC PMI Mortgage Loan;
15. the Expense Fee Rate as of the Cut-off Date;
16. the related Servicing Fee Rate and the related Master Servicing Fee
Rate (which may be disclosed on the Mortgage Loan Schedule in two
parts identified as the servicing fee and master servicing fee or in
two parts identified as the "Lender Fee" and the "Mgmt Fee");
33
17. whether such Mortgage Loan is a DLJMC Mortgage Loan or a Cendant
Mortgage Loan;
18. whether such Mortgage Loan is a Cendant Serviced Mortgage Loan, an
Olympus Serviced Mortgage Loan, a Master Serviced Mortgage Loan or a
WMMSC Serviced Mortgage Loan;
19. the Index that is associated with such Mortgage Loan, if applicable;
20. the Gross Margin, if applicable;
21. the Periodic Rate Cap, if applicable;
22. the Minimum Mortgage Rate, if applicable;
23. the Maximum Mortgage Rate, if applicable;
24. the first Adjustment Date after the Cut-off Date, if applicable; and
25. whether the Mortgage Loan is an Additional Collateral Mortgage Loan
and the amount of the Original Additional Collateral Requirement.
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:
26. the number of Mortgage Loans;
27. 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
28. the weighted average Mortgage Rate of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note.
Mortgaged Property: The underlying real property securing a Mortgage
Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date and Loan
Group V, a fraction, expressed as a percentage, the numerator of which is
equal to the excess of (x) the Aggregate Loan Group Balance for the
immediately preceding Distribution Date for that Loan Group, multiplied by the
Net WAC Rate for such Loan Group over (y) the Interest Remittance Amount for
such Loan Group for such Distribution Date, and the denominator of which is an
amount equal to the Aggregate Loan Group Balance for the immediately preceding
Distribution
34
Date for that Loan Group, multiplied by the actual number of days elapsed in
the related Accrual Period divided by 360.
Net Funds Cap: For any Distribution Date and Loan Group V, will be a
per annum rate equal to (a) a fraction, expressed as a percentage, the
numerator of which is the product of (1) the Optimal Interest Remittance
Amount for such date and Loan Group V and (2) 12, and the denominator of which
is the applicable Aggregate Loan Group Balance of Loan Group V immediately
preceding such Distribution Date (or, in the case of the first Distribution
Date, the Aggregate Loan Group Balance of Loan Group V as of the Cut-off
Date), multiplied by (b) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual
Period.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the excess of the related Liquidation Proceeds over the sum of
Liquidation Expenses, Expense Fees and unreimbursed Advances and Servicing
Advances.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate for such Mortgage Loan less the
related Expense Fee Rate.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the Compensating Interest Payment for such
Distribution Date.
Net WAC Rate: As to any Distribution Date and Loan Group, a rate
equal to the weighted average of the Net Mortgage Rates on the Mortgage Loans
in such Loan Group as of the second preceding Due Date after giving effect to
payments due on such Due Date, whether or not received, weighted on the basis
of the Stated Principal Balances as of such date reduced by, in the case of
Group I and Group II, the Group I Excess Interest Rate and the Group II Excess
Interest Rate, respectively. In addition, for any purpose for which the Net
WAC Rate is calculated, the interest rate on the Mortgage Loans shall be
appropriately adjusted to account for the difference between any counting
convention used with respect to the Mortgage Loans and any counting convention
used with respect to a REMIC regular interest.
1933 Act: The Securities Act of 1933, as amended.
Nonrecoverable Advance: Any portion of an Advance or Servicing
Advance previously made or proposed to be made by the Master Servicer or a
Servicer that, in the good faith judgment of the Master Servicer or a
Servicer, will not be ultimately recoverable by the Master Servicer or a
Servicer from the related Mortgagor, related Liquidation Proceeds or
otherwise.
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
35
President, or other authorized officer, the Treasurer, the Secretary, or one
of the Assistant Treasurers or Assistant Secretaries of the Depositor, the
Sellers, the Master Servicer, the Servicers, the Special Servicer, a
Sub-Servicer, the Trustee or the Trust Administrator, as the case may be, and
delivered to the Depositor, the Sellers, the Master Servicer, the Special
Servicer, the Servicers, the Trustee or the Trust Administrator, as required
by this Agreement.
Olympus: Olympus Servicing, L.P., a Delaware limited partnership,
and its successors and assigns.
Olympus Serviced Mortgage Loans: The Mortgage Loans identified as
such on the Mortgage Loan Schedule for which Olympus is the applicable
Servicer, and if Olympus is the Special Servicer, any Special Serviced
Mortgage Loans.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor, the Master Servicer or a Servicer, reasonably acceptable to
the Trustee and the Trust Administrator. With respect to the definition of
Eligible Account in this Article I and Sections 2.05 and 7.04 hereof and any
opinion dealing with the qualification of each REMIC created hereunder or
compliance with the REMIC Provisions, such counsel must (i) in fact be
independent of the Depositor, the Master Servicer and such Servicer, (ii) not
have any direct financial interest in the Depositor, the Master Servicer or
such Servicer or in any affiliate of either of them and (iii) not be connected
with Depositor, the Master Servicer or such Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions.
Optimal Interest Remittance Amount: For any Distribution Date and
Loan Group V, the excess of (i) the product of (1) (x) the weighted average of
the Mortgage Rates of the Mortgage Loans in such Loan Group as of the first
day of the related Due Period less the weighted average Expense Fee Rate
divided by (y) 12 and (2) the applicable Aggregate Loan Group Balance for Loan
Group V for the immediately preceding Distribution Date, over (ii) any
expenses that reduce the Interest Remittance Amount that did not arise as a
result of a default or delinquency of the Mortgage Loans in Loan Group V.
Optional Termination: The purchase of the Mortgage Loans pursuant to
Section 11.01.
Optional Termination Date: The date fixed by a Terminating Entity
for the purchase of the Mortgage Loans pursuant to Section 11.01.
Original Additional Collateral Requirement: With respect to any
Additional Collateral Mortgage Loan, an amount equal to the Additional
Collateral required at the time of the origination of such Additional
Collateral Mortgage Loan in order to achieve an Effective Loan-to-Value Ratio
for such Additional Collateral Mortgage Loan, generally equal to seventy
percent (70%); for purposes of the Required Surety Payment, in no event shall
the Original Additional Collateral Requirement for an Additional Collateral
Mortgage Loan exceed thirty percent (30%) of its original principal balance.
OTS: The Office of Thrift Supervision.
36
Outsourcer: As defined in Section 3.02.
Overcollateralization Amount: For any Distribution Date, an amount
equal to the amount, if any, by which (x) the Aggregate Loan Group Balance for
Loan Group V for such Distribution Date exceeds (y) the aggregate Class
Principal Balance of the Group V Certificates after giving effect to payments
on such Distribution Date.
Overcollateralization Deficiency: For any Distribution Date, the
amount, if any, by which (x) the Targeted Overcollateralization Amount for
such Distribution Date exceeds (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after giving effect to the
reduction on such Distribution Date of the aggregate Class Principal Balance
of the Group V Certificates resulting from the payment of the Principal
Payment Amount on such Distribution Date but prior to allocation of any
Applied Loss Amount on the Group V Certificates on such Distribution Date.
Overcollateralization Release Amount: For any Distribution Date, an
amount equal to the lesser of (x) the related Principal Remittance Amount for
such Distribution Date and (y) the amount, if any, by which (1) the
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the aggregate of the related Principal
Remittance Amount for such date is applied on such date in reduction of the
aggregate of the Class Principal Balances of the Group V Certificates, exceeds
(2) the Targeted Overcollateralization Amount for such date.
Parent Power(R)Agreement: With respect to each Parent
Power(R)Mortgage Loan, a Parent Power(R) Guaranty and Security Agreement for
Securities Account.
Parent Power(R) Guaranty and Security Agreement for Securities
Account: With respect to a Parent Power(R) Mortgage Loan, an agreement between
the Additional Collateral Servicer and a guarantor on behalf of the mortgagor
under such Parent Power(R) Mortgage Loan pursuant to which such guarantor
guarantees the payment of certain losses under such Parent Power(R) Mortgage
Loan and has granted a security interest to the Additional Collateral Servicer
in certain marketable securities to collateralize such guaranty. The required
amount of such collateral is at least equal to the Original Additional
Collateral Requirement for such Parent Power(R) Mortgage Loan.
Parent Power(R) Mortgage Loan: A Mortgage Loan having at the time of
origination a Loan-to-Value Ratio generally in excess of the Master Servicer's
maximum acceptable Loan-to-Value Ratio for such Mortgage Loan as set forth in
the Underwriting Guide, which Mortgage Loan is supported by a Parent Power(R)
Agreement.
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
37
partnership, trust or estate or (c) any person holding a Class A Certificate
as nominee for another person.
Pass-Through Rate: For any interest-bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement. Interest on the Certificates other than the LIBOR
Certificates will be computed on the basis of a 360-day year comprised of
twelve 30-day months. Interest on the LIBOR Certificates will be computed on
the basis of a 360-day year and the actual number of days elapsed in the
related Accrual Period.
Payahead: Any Scheduled Payment intended by the related Mortgagor to
be applied in a Collection Period subsequent to the Collection Period in which
such payment was received.
Payoff: Any payment of principal on a Mortgage Loan equal to the
entire outstanding Stated Principal Balance of such Mortgage Loan, if received
in advance of the last scheduled Due Date for such Mortgage Loan and
accompanied by an amount of interest equal to accrued unpaid interest on the
Mortgage Loan to the date of such payment-in-full.
Payoff Earnings: For any Distribution Date with respect to a WMMSC
Serviced Mortgage Loan, on which Payoff was received by WMMSC during the
related Prepayment Period, the aggregate of the interest earned by WMMSC from
investment of each such Payoff from the date of receipt of such Payoff until
the Business Day immediately preceding the related Distribution Date (net of
investment losses).
Payoff Interest: For any Distribution Date with respect to each
WMMSC Serviced Mortgage Loan for which a Payoff was received on or after the
first calendar day of the month of such Distribution Date and before the 15th
calendar day of such month, an amount of interest thereon at the applicable
Net Mortgage Rate from the first day of 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 a 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.
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
38
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 Master Servicing Fee
Rate and the Servicing Fee Rate, on the outstanding principal balance of such
Mortgage Loan immediately prior to such prepayment and (ii) the amount of
interest actually received with respect to such Mortgage Loan in connection
with such Principal Prepayment.
Prepayment Penalty: With respect to any Mortgage Loan, any penalty
required to be paid if the Mortgagor prepays such Mortgage Loan as provided in
the related Mortgage Note or Mortgage.
Prepayment Period: With respect to each Distribution Date and each
Payoff with respect to a WMMSC Serviced Mortgage Loan, the related "Prepayment
Period" will commence on the 15th day of the month preceding the month in
which the related Distribution Date occurs (or, in the case of the first
Distribution Date, commencing on the Cut-off Date) and will end on the 14th
day of the month in which such Distribution Date occurs. With respect to each
Distribution Date and each Payoff with respect to any other Mortgage Loans and
all Curtailments, the related "Prepayment Period" will be the calendar month
preceding the month in which the related Distribution Date occurs.
Principal Payment Amount: For any Distribution Date and Loan Group
I, Loan Group II, Loan Group III or Loan Group IV, the sum of (i) the
principal portion of the Scheduled Payments on the Mortgage Loans in such Loan
Group due on the related Due Date, (ii) the principal portion of repurchase
proceeds received with respect to any Mortgage Loan in such Loan Group which
was repurchased as permitted or required by this Agreement during the related
Prepayment Period and (iii) any other unscheduled payments of principal which
were received on the Mortgage Loans in such Loan Group during the related
Prepayment Period, other than Principal Prepayments or Liquidation Principal.
For any Distribution Date and Loan Group V, an amount equal to the Principal
Remittance Amount for such date minus the Overcollateralization Release
Amount, if any, for such date.
Principal Prepayment: Any payment of principal on a Mortgage Loan
which constitutes a Payoff or Curtailment.
Principal Prepayment Amount: For any Distribution Date and Loan
Group I, Loan Group II, Loan Group III or Loan Group IV, the sum of all
Principal Prepayments relating to the Mortgage Loans in such Loan Group which
were received during the related Prepayment Period.
Principal Remittance Amount: For any Distribution Date and Loan
Group V, an amount equal to the sum of (1) all principal collected (other than
Payaheads) or advanced in respect of Scheduled Payments on the Mortgage Loans
in Loan Group V during the related Collection Period (less unreimbursed
Advances, Servicing Advances and other amounts due to the Servicers, the
Trustee, the Master Servicer and the Trust Administrator with respect to the
Mortgage Loans in Loan Group V, 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
39
principal balance of each Mortgage Loan that was repurchased by the Master
Servicer, a Seller, or a Servicer or purchased by Olympus, during the related
Collection Period, (4) the portion of any Substitution Adjustment Amount paid
with respect to any Deleted Mortgage Loans during the related Collection
Period allocable to principal and (5) all Net Liquidation Proceeds and any
other recoveries (net of unreimbursed Advances, Servicing Advances and other
expenses, to the extent allocable to principal) collected with respect to the
Mortgage Loans in Loan Group V during the related Collection Period, to the
extent allocable to principal.
Principal Transfer Amount: For any Distribution Date and each
Undercollateralized Group, the excess, if any, of the aggregate Class
Principal Balance of the Class A Certificates related to such
Undercollateralized Group over the aggregate Stated Principal Balance of the
Mortgage Loans in such Group.
Private Certificates: As set forth in the Preliminary Statement.
Pro Rata Allocation: With respect to Excess Losses relating to Loan
Group I, Loan Group II, Loan Group III and Loan Group IV, the allocation of
the principal portion of such losses to all Classes of Certificates (other
than the Notional Amount Certificates), pro rata according to their respective
Class Principal Balances in reduction thereof, and the allocation of the
interest portion of such losses to all Classes of Certificates, pro rata
according to the amount of interest accrued but unpaid on each such Class, in
reduction thereof, and then to such Classes pro rata according to their
respective Class Principal Balances in reduction thereof.
Pro Rata Share: As to any Distribution Date and the Class C-B-1,
Class C-B-2, Class C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6
Certificates, the portion of the Subordinate Principal Distribution Amount
allocable to such Class, equal to the product of the Subordinate Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Principal Balance of such Class and the denominator
of which is the aggregate of the Class Principal Balances of the Group C-B
Certificates.
Prospectus: The Prospectus, dated March 26, 2002, relating to the
offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the 1933 Act with respect to the offer and sale of the offered
certificates.
Prospectus Supplement: The Prospectus Supplement, dated May 7, 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
40
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,
if such Servicer is not the related 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 and the Trust Administrator an Officer's Certificate as to the
calculation of the Purchase Price.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by a
Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit K (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution
(or, in the case of a substitution of more than one mortgage loan for a
Deleted Mortgage Loan, an aggregate principal balance), not in excess of, and
not more than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (iv)
have a remaining term to maturity no greater than (and not more than one year
less than that of) the Deleted Mortgage Loan; (v) have a Maximum Mortgage Rate
and Minimum Mortgage Rate not less than the respective such rates for the
Deleted Mortgage Loan, have a Gross Margin equal to or greater than the
Deleted Mortgage Loan and have the same Index as the Deleted Mortgage Loan;
and (vi) comply with each representation and warranty set forth in Section
2.03(b).
Rating Agency: Xxxxx'x or S&P, or any successor to either of them.
Ratings: As of any date of determination, the ratings, if any, of
the Certificates as assigned by the Rating Agencies.
Realized Loss: With respect to any Mortgage Loan, (1) with respect
to each Liquidated Mortgage Loan, an amount (not less than zero or more than
the Stated Principal Balance of the Mortgage Loan) as of the date of such
liquidation, equal to (i) the Stated Principal Balance of the Liquidated
Mortgage Loan as of the date of such liquidation, plus (ii) interest at the
applicable Net Mortgage Rate from the related Due Date as to which interest
was last paid or advanced (and not reimbursed) to Certificateholders up to the
related Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Net Liquidation Proceeds, if any,
41
received during the month in which such liquidation occurred, to the extent
applied as recoveries of interest at the Net Mortgage Rate and to principal of
the Liquidated Mortgage Loan; (2) for any Mortgage Loan subject to a Deficient
Valuation, the excess of the Stated Principal Balance of that Mortgage Loan
over the principal amount as reduced in connection with the proceedings
resulting in the Deficient Valuation; or (3) for any Debt Service Reduction
Mortgage Loan, the present value of all monthly Debt Service Reductions on the
Mortgage Loan, assuming that the mortgagor pays each Scheduled Payment on the
applicable Due Date and that no Principal Prepayments are received on the
Mortgage Loan, discounted at the applicable Mortgage Rate.
Record Date: With respect to any Distribution Date and the
Certificates other than the LIBOR Certificates held in Book-Entry Form, the
close of business on the last Business Day of the month preceding the month in
which the applicable Distribution Date occurs. With respect to the LIBOR
Certificates that are not Physical Certificates and any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date; provided, however, that following the date on which Definitive
Certificates for a Class of LIBOR Certificates are available pursuant to
Section 5.02, the Record Date shall be the close of business on the last
Business Day of the calendar month immediately preceding the month of such
Distribution Date. The Record Date for the first Distribution Date shall be
May 9, 2002.
Reference Bank Rate: As to any Accrual Period relating to the LIBOR
Certificates as follows: the arithmetic mean (rounded upwards, if necessary,
to the nearest one sixteenth of a percent) of the offered rates for United
States dollar deposits for one month which are offered by the Reference Banks
as of 11:00 A.M., London time, on the Interest Determination Date prior to the
first day of such Accrual Period to prime banks in the London interbank market
for a period of one month in amounts approximately equal to the aggregate
Class Principal Balance of the LIBOR Certificates; provided that at least two
such Reference Banks provide such rate. If fewer than two offered rates
appear, the Reference Bank Rate will be the arithmetic mean of the rates
quoted by one or more major banks in New York City, selected by the Trust
Administrator after consultation with DLJMC, as of 11:00 A.M., New York City
time, on such date for loans in U.S. Dollars to leading European banks for a
period of one month in amounts approximately equal to the aggregate Class
Principal Balance of the LIBOR Certificates. If no such quotations can be
obtained, the Reference Bank Rate shall be the Reference Bank Rate applicable
to the preceding Accrual Period.
Reference Banks: Three major banks that are engaged in the London
interbank market, selected by the Trust Administrator after consultation with
DLJMC.
Registration Statement: That certain registration statement on Form
S-3, as amended (Registration No. 333-77054), 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.
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Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit", within the
meaning of Section 860D of the Code. Reference herein to REMIC refers to the
Master REMIC, REMIC 1 and REMIC 2, as the context requires.
REMIC Election: An election, for federal income tax purposes, to
treat certain assets as a REMIC.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time.
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, the excess of (i) the greater of (a) $5,000 and (b) solely
to the extent of any Dividend Returned Interest received by the Trust Fund,
the Overcollateralization Deficiency following the application of Monthly
Excess Cashflow 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, the greater of (a) $5,000 and (b) solely to the extent of
any Dividend Returned Interest received by the Trust Fund, the
Overcollateralization Deficiency following the application of Monthly Excess
Cashflow for such Distribution Date.
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.
Required Surety Payment: With respect to any Additional Collateral
Mortgage Loan that becomes a Liquidated Mortgage Loan, the lesser of (i) the
principal portion of the Realized Loss with respect to such Mortgage Loan and
(ii) the excess, if any, of (a) the Original Additional Collateral Requirement
with respect to such Mortgage Loan over (b) the net proceeds realized by the
Additional Collateral Servicer from the related Additional Collateral as set
forth in Section 3.11.
Residual Certificates: The Class AR Certificates.
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Responsible Officer: When used with respect to the Trustee or the
Trust Administrator, shall mean any officer within the corporate trust
department of the Trustee or the Trust Administrator, respectively, including
any Assistant Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer or any other officer of
the Trustee or the Trust Administrator customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
RMIC PMI Fee: As to each RMIC PMI Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the RMIC PMI Fee Rate on the
Stated Principal Balance of such RMIC PMI Mortgage Loan as of the Due Date in
the month of such Distribution Date (prior to giving effect to any Scheduled
Payment due on such RMIC PMI Mortgage Loan on such Due Date).
RMIC PMI Fee Rate: With respect to each RMIC PMI Mortgage Loan, the
per annum rate equal to the amount set forth on the Mortgage Loan Schedule.
RMIC PMI Mortgage Loan: Those Mortgage Loans identified on the
Mortgage Loan Schedule as to which the RMIC PMI Policy provides coverage.
RMIC PMI Policy: The mortgage guaranty insurance policy issued by
RMIC, the form of which is attached as Exhibit R.
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 May
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.
Securities Account: With respect to any Additional Collateral
Mortgage Loans, the account, together with the financial assets held therein,
that is the subject of the related Mortgage 100K Pledge Agreement.
Seller: DLJMC or Cendant, as applicable.
Senior Certificates: As specified in the Preliminary Statement.
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Senior Liquidation Amount: The Group I Senior Liquidation Amount,
Group II Senior Liquidation Amount, the Group III Senior Liquidation Amount or
the Group IV Senior Liquidation Amount, as applicable.
Senior Percentage: The Group I Senior Percentage, the Group II
Senior Percentage, the Group III Senior Percentage or the Group IV Senior
Percentage, as applicable.
Senior Prepayment Percentage: The Senior Prepayment Percentage for
any Distribution Date occurring during the five years beginning on the first
Distribution Date for each of Loan Group I, Loan Group II, Loan Group III and
Loan Group IV will equal 100%. The Senior Prepayment Percentage for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date for each such Loan Group will be as follows: for any
Distribution Date in the first year thereafter, the related Senior Percentage
plus 70% of the related Subordinate Percentage for such Distribution Date; for
any Distribution Date in the second year thereafter, the related Senior
Percentage plus 60% of the related Subordinate Percentage for such
Distribution Date; for any Distribution Date in the third year thereafter, the
related Senior Percentage plus 40% of the related Subordinate Percentage for
such Distribution Date; for any Distribution Date in the fourth year
thereafter, the related Senior Percentage plus 20% of the related Subordinate
Percentage for such Distribution Date; and for any Distribution Date
thereafter, the related Senior Percentage for such Distribution Date (unless
(i) on any of the foregoing Distribution Dates a Senior Percentage exceeds the
initial related Senior Percentage, in which case the Senior Prepayment
Percentage for each Group for that Distribution Date will once again equal
100%, (ii) if on or before the Distribution Date in May 2005, the Group C-B
Percentage is greater than or equal to twice the Group C-B Percentage as of
the Closing Date, in which case the Senior Prepayment Percentage for each
Group will equal the related Senior Percentage, plus 50% of the excess of 100%
over that percentage for that Distribution Date, or (iii) if after the
Distribution Date in May 2005, the Group C-B Percentage is greater than or
equal to twice the Group C-B Percentage as of the Closing Date, then the
Senior Prepayment Percentage for each Group for such Distribution Date will
equal the related Senior Percentage).
Notwithstanding the foregoing, the Senior Prepayment Percentage for
any of Loan Group I, Loan Group II, Loan Group III or Loan Group IV shall
equal 100% for any Distribution Date as to which (i) the outstanding principal
balance of the Mortgage Loans in a Loan Group, delinquent 60 days or more
(averaged over the preceding six month period), as a percentage of the related
aggregate Subordinate Component Balance as of such Distribution Date is equal
to or greater than 50% or (ii) cumulative Realized Losses for the Mortgage
Loans in such Loan Group exceed (a) with respect to the Distribution Date
prior to the third anniversary of the first Distribution Date, 20% of the
related aggregate Subordinate Component Balance as of the Closing Date (the
"Original Subordinate Principal Balance"), (b) with respect to the
Distribution Date on or after the third anniversary but prior to the sixth
anniversary of the first Distribution Date, 30% of the related Original
Subordinate Principal Balance, (c) with respect to the Distribution Date on or
after the sixth anniversary but prior to the seventh anniversary of the first
Distribution Date, 35% of the related Original Subordinate Principal Balance,
(d) with respect to the Distribution Date on or after the seventh anniversary
but prior to the eight anniversary of the first Distribution Date, 40% of the
related Original Subordinate Principal Balance, (e) with respect to the
Distribution Date on or after the eighth anniversary but prior to
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the ninth anniversary of the first Distribution Date, 45% of the related
Original Subordinate Principal Balance and (f) with respect to the
Distribution Date on or after the ninth anniversary of the first Distribution
Date, 50% of the Original Subordinate Principal Balance.
If on any Distribution Date the allocation to a Class of Senior
Certificates then entitled to distributions of principal payments in full and
partial principal prepayments and other amounts in the percentage required
above would reduce the outstanding Class Principal Balance of that Class below
zero, the distribution to that Class of Senior Certificates of the Senior
Prepayment Percentage of those amounts for such Distribution Date shall be
limited to the percentage necessary to reduce the related Class Principal
Balance to zero.
Senior Principal Distribution Amount: The Group I Senior Principal
Distribution Amount, the Group II Senior Principal Distribution Amount, the
Group III Senior Principal Distribution Amount or the Group IV Senior
Principal Distribution Amount, as applicable.
Servicers: Cendant, Olympus and WMMSC, and any successor in interest
thereto or any successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicer Mortgage File: All documents pertaining to a Mortgage Loan
not required to be included in the Trustee Mortgage File and held by the
Master Servicer or the related Servicer or any Sub-Servicer.
Servicing Advance: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by a Servicer or the
Master Servicer of its servicing obligations, including, but not limited to,
the cost (including reasonable attorneys' fees and disbursements) of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii)
compliance with the obligations under Section 3.11 and any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of any REO Property (including default management and similar
services, appraisal services and real estate broker services); (iv) any
expenses incurred by a Servicer or the Master Servicer in connection with
obtaining an environmental inspection or review pursuant to the second
paragraph of Section 3.11(a) and (v) compliance with the obligations under
Section 3.09.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount equal to one month's interest at the Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
of such Distribution Date (prior to giving effect to any Scheduled Payments
due on such Mortgage Loan on such Due Date), subject to reduction as provided
in Section 3.14.
Servicing Fee Rate: As to each Mortgage Loan, the per annum rate set
forth on the related Mortgage Loan Schedule.
Servicing Officer: Any officer of the Master Servicer or a Servicer
involved in, or responsible for, the administration and servicing of the
related Mortgage Loans whose name and specimen signature appear on a list of
servicing officers furnished to the Trustee and the
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Trust Administrator by the Master Servicer or by a Servicer on the Closing
Date pursuant to this Agreement, as such list may from time to time be amended
and delivered to the Trustee and Trust Administrator.
Special Event of Default: An Event of Default under Section 8.01(b)
which arises solely from the cumulative effect of a breach or breaches by
WMMSC of its agreements as set forth in clauses (i)(x) through (z), inclusive,
of the first paragraph of Section 2.07(g).
Special Hazard Loss: A Realized Loss (or portion thereof) with
respect to a Mortgage Loan arising from any direct physical loss or damage to
a Mortgaged Property which is not covered by a standard hazard maintenance
policy with extended coverage or by a flood insurance policy, if applicable
(or which would not have been covered by such a policy had such a policy been
maintained), which is caused by or results from any cause except: (i) wear and
tear, deterioration, rust or corrosion, mold, wet or dry rot, inherent vice or
latent defect, animals, birds, vermin, insects; (ii) settling, subsidence,
cracking, shrinkage, bulging or expansion of pavements, foundations, walls,
floors, roofs or ceilings; (iii) errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or part thereof ensues
and then only for the ensuing loss; (iv) nuclear or chemical reaction or
nuclear radiation or radioactive or chemical contamination, all whether
controlled or uncontrolled, and whether such loss be direct or indirect,
proximate or remote; (v) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an actual,
impending or expected attack (a) by any government of sovereign power, de jure
or de facto, or by any authority maintaining or using military, naval or air
forces, (b) by military, naval or air forces, or (c) by an agent of any such
government, power, authority or forces; (vi) any weapon of war employing
atomic fission or radioactive force whether in time of peace or war; or (vii)
insurrection, rebellion, revolution, civil war, usurped power or action taken
by governmental authority in hindering, combating or defending against such
occurrence, seizure or destruction under quarantine or customs regulations,
confiscation by order of any government or public authority, or risks of
contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the Group C-B
Certificates, as of the Closing Date, $4,073,842 subject in each case to
reduction from time to time, to be an amount equal on any Distribution Date to
the lesser of (a) the greatest of (i) 1% of the sum of the Aggregate Loan
Group Balances of the Group I, Group II, Group III and Group IV Mortgage
Loans, (ii) twice the principal balance of the largest Group I, Group II,
Group III or Group IV Mortgage Loan and (iii) the aggregate principal balances
of the Group I, Group II, Group III or Group IV Mortgage Loans secured by
Mortgaged Properties located in the single California postal zip code area
having the highest aggregate principal balance of any such zip code area and
(b) the Special Hazard Loss Coverage Amount as of the closing date less the
amount, if any, of losses attributable to Special Hazard Losses allocated to
the Group C-B Certificates since the Closing Date. All principal balances for
the purpose of this definition will be calculated as of the first day of the
month preceding such Distribution Date after giving effect to scheduled
installments of principal and interest on the Mortgage Loans then due, whether
or not paid.
Special Hazard Loss Coverage Termination Date: The date on which the
Special Hazard Loss Coverage Amount is reduced to zero.
47
Special Servicer: Olympus Servicing, L.P., and its successors and
permitted assigns.
Special Serviced Mortgage Loan: The Mortgage Loans for which the
Special Servicer acts as servicer pursuant to Section 3.19.
Standard Hazard Policy: Each standard hazard insurance policy or
replacement therefor referred to in Section 3.09.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to any previous
Curtailments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due
on such Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Stepdown Date: The date occurring on the later of (x) the
Distribution Date in May 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 in Loan Group
V during the related Collection Period but before giving effect to payments on
the Group V Certificates on such Distribution Date) is greater than or equal
to 13.00%.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Component Balance: For any of Loan Group I, Loan Group
II, Loan Group III or Loan Group IV as of any date of determination, the then
outstanding aggregate Stated Principal Balance of the Mortgage Loans in that
Loan Group minus the sum of the then outstanding aggregate Class Principal
Balance of the related Class of Class A Certificates and, in the case of Loan
Group I, the Class AR Certificates.
Subordinate Liquidation Amount: For any Distribution Date and any of
Loan Group I, Loan Group II, Loan Group III and Loan Group IV, the excess, if
any, of the aggregate Liquidation Principal of all Mortgage Loans in those
Loan Groups which became Liquidated Mortgage Loans during the related
Prepayment Period over the sum of the Group I Senior Liquidation Amount, the
Group II Senior Liquidation Amount, the Group III Senior Liquidation Amount
and the Group IV Senior Liquidation Amount for such Distribution Date.
Subordinate Percentage: As to any Distribution Date and Loan Group
I, Loan Group II, Loan Group III or Loan Group IV, the excess of 100% over the
related Senior Percentage for that Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
with respect to Loan Group I, Loan Group II, Loan Group III or Loan Group IV,
100% minus the
48
related Senior Prepayment Percentage for such Distribution Date; provided,
however, that if the aggregate Class Principal Balance of the Senior
Certificates related to such Loan Group has been reduced to zero, then the
Subordinate Prepayment Percentage for such Loan Group will equal 100%.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and the Subordinate Certificates and Loan Group I, Loan
Group II, Loan Group III and Loan Group IV will equal the sum of the following
amounts for each such Loan Group: (i) the related Subordinate Percentage of
the related Principal Payment Amount, (ii) the related Subordinate Prepayment
Percentage of the related Principal Prepayment Amount, and (iii) the
Subordinate Liquidation Amount.
Subordination Level: As to any Distribution Date and any Class of
Group C-B Certificates, the percentage obtained by dividing the sum of the
Class Principal Balances of all Classes of Group C-B Certificates which are
subordinate in right of payment to such Class by the sum of the Class
Principal Balances of the Group I, Group II, Group III, Group IV and Group C-B
Certificates, other than the Notional Amount Certificates, in each case
immediately prior to such Distribution Date.
Substitution Adjustment Amount: As defined in Section 2.03.
Sub-Servicer: Any other entity with respect to any Mortgage Loan
under any Sub-Servicing Agreement applicable to such Mortgage Loan and any
successors and assigns under such Sub-Servicing Agreement.
Sub-Servicing Agreement: Any servicing agreement between the Master
Servicer or a Servicer and a Sub-Servicer pursuant to which the Master
Servicer or a Servicer delegates any of its servicing responsibilities with
respect to any of the Mortgage Loans.
Subordinate Certificates: As specified in the Preliminary Statement.
Substitution Adjustment Amount: As defined in Section 2.04.
Targeted Overcollateralization Amount: For any Distribution Date
prior to the Stepdown Date, 0.50% of the Aggregate Loan Group Balance of Loan
Group V as of the Cut-off Date; with respect to any Distribution Date on or
after the Stepdown Date and with respect to which a Trigger Event has not
occurred, the greater of (a) 1.00% of the Aggregate Loan Group Balance of Loan
Group V for such Distribution Date, or (b) 0.50% of the Aggregate Loan Group
Balance of Loan Group V as of the Cut-off Date; with respect to any
Distribution Date on or after the Stepdown Date with respect to which a
Trigger Event has occurred and is continuing, the Targeted
Overcollateralization Amount for the Distribution Date immediately preceding
such Distribution Date.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation Section 1.860F-4(d) and
temporary Treasury regulation Section 301.6231(a)(7)-1T. Initially, the Tax
Matters Person shall be the Trust Administrator.
49
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).
Terminating Entity: Olympus, upon the exercise of such entity's
right to effect an Optional Termination pursuant to Section 11.01.
Transferring Servicer: As defined in Section 3.19 hereof.
Transferee Affidavit and Agreement: As defined in Section
6.02(g)(i)(B).
Trigger Event: A Trigger Event will occur for any Distribution Date
if the Rolling Three Month Delinquency Rate as of the last day of the related
Collection Period equals or exceeds the lesser of (i) 7.00% or (ii) 50.00% of
the Senior Enhancement Percentage for such Distribution Date.
Trust Administrator: JPMorgan Chase Bank, a New York banking
corporation, not in its individual capacity, but solely in its capacity as
trust administrator for the benefit of the Certificateholders under this
Agreement, and any successor thereto, as provided herein.
Trust Administrator Fee: As to each Mortgage Loan other than a WMMSC
Serviced Mortgage Loan and any Distribution Date, an amount equal to one
month's interest at the Trust Administrator Fee Rate on the State Principal
Balance of such Mortgage Loan calculated as of the first day of the related
Due Period, subject to reduction as provided in Section 3.14. For the
avoidance of doubt, there is no Trust Administrator Fee with respect to the
WMMSC Serviced Mortgage Loans.
Trust Administrator Fee Rate: As to each Mortgage Loan other than a
WMMSC Serviced Mortgage Loan, a per annum rate equal to 0.0025%. For the
avoidance of doubt, there is no Trust Administrator Fee Rate with respect to
the WMMSC Serviced Mortgage Loans.
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, including the RMIC PMI
Policy, (e) the Depositor's rights under the Assignment and Assumption
Agreement, (f) the Depositor's rights in respect of the Additional Collateral
and the Limited Purpose Surety Bond, including the assignment of the
Depositor's rights under the Additional Collateral Servicing Agreement, and
(g) 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).
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Trust Receipt and Initial Certification: As defined in Section
2.02(a).
Trustee: Bank One, National Association, a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and
any successor thereto, as provided herein.
Trustee Mortgage File: The mortgage documents listed in Section 2.01
hereof pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Trustee Mortgage File pursuant to this Agreement.
Undercollateralized Group: As defined in Section 4.06(b).
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58,
65 Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
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 III-X and
Class V-X Certificates shall be each allocated 1% of the Voting Interest.
Voting Interests shall be allocated among the Certificates within each such
Class (other than the Class V-X Certificates, which has only one certificate)
in proportion to their respective outstanding Class Principal Balances or
Notional Amounts. The Class AR Certificates shall have no Voting Rights.
WMMSC: Washington Mutual Mortgage Securities Corp., a Delaware
corporation, and its successors and assigns.
WMMSC Serviced Mortgage Loans: The Mortgage Loans identified as such
on the Mortgage Loan Schedule, for which WMMSC is the applicable Servicer. For
the avoidance of doubt, no WMMSC Serviced Mortgage Loan is master serviced by
the Master Servicer.
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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, including the RMIC
PMI Policy, (e) the Depositor's rights under the Assignment and Assumption
Agreement, (f) the interest in the Limited Purpose Surety Bond transferred to
the Trustee, and (g) all proceeds of the conversion, voluntary or involuntary,
of any of the foregoing into cash or other liquid property. In addition, on or
prior to the Closing Date, the Depositor shall cause RMIC to deliver the RMIC
PMI Policy to the Trustee.
In connection with the transactions contemplated by this Agreement,
Cendant and the Trustee shall enter into an Assignment, Assumption and
Recognition Agreement with MLCC, in the form of Exhibit S hereto, pursuant to
which Cendant shall assign to the Trustee, for the benefit of the
Certificateholders, all of its right, title and interest in and to the
Additional Collateral Servicing Agreement with respect to the Additional
Collateral Mortgage Loans, and the Trustee shall assume all of Cendant's
obligations under the Additional Collateral Servicing Agreement with respect
to the Additional Collateral Mortgage Loans from and after the date hereof.
(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 (other than Additional
Collateral) executed in connection with the Mortgage Note (if any);
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(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 such 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 such Seller forthwith after return from such recording
office) with evidence of recording thereon, if any;
(v) the original Assignment of Mortgage as appropriate, in
recordable form, for each Mortgage Loan 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);
(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); and
(viii) in addition, with respect to each Mortgage Loan that is
an Additional Collateral Mortgage Loan (as indicated on the Mortgage Loan
Schedule) (a) a copy of the related Mortgage 100K Pledge Agreement or
Parent Power Agreement, as applicable; and (b) a copy of the related
UCC-1, to the extent that MLCC was required to deliver such UCC-1 to
Cendant, and an original form UCC-3, if applicable, to the extent that
MLCC was required to deliver such UCC-3 to Cendant.
In the event the Depositor delivers to the Trustee or the Custodian
certified copies of any document or instrument set forth in 2.01(b) because of
a delay caused by the public recording office in returning any recorded
document, the Depositor shall deliver or cause to be delivered to the Trustee
or the Custodian, within 60 days of the Closing Date, an Officer's Certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Trustee or the Custodian due solely to
a delay caused by the public recording office, and (iii) state the amount of
time generally required by the applicable recording office to record and
return a document submitted for recordation.
In the event that in connection with any Mortgage Loan the Depositor
cannot deliver (a) the original recorded Mortgage, (b) all interim recorded
assignments or (c) the lender's title policy (together with all riders
thereto) satisfying the requirements set forth above, concurrently with the
execution and delivery hereof because such document or documents have not been
returned from the applicable public recording office in the case of clause (a)
or (b) above, or because the title policy has not been delivered to the
related Seller or the Depositor by
53
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, the
Trust Administrator and DLJMC, acceptable to the Rating Agencies, the
recordation of such assignment is not necessary to protect the Trustee's and
the Certificateholders' interest in the related Mortgage Loan.
If any original Mortgage Note referred to in Section 2.01(b)(i)
above cannot be located, the obligations of the Depositor to deliver such
documents shall be deemed to be satisfied upon delivery to the Trustee or the
Custodian of a photocopy of such Mortgage Note, if available, with a lost note
affidavit and indemnity. If any of the original Mortgage Notes for which a
lost note affidavit and indemnity was delivered to the Trustee or the
Custodian is subsequently located, such original Mortgage Note shall be
delivered to the Trustee or the Custodian within three Business Days.
(c) The Trustee is authorized to appoint any bank or trust company
approved by the Depositor as Custodian of the documents or instruments
referred to in this Section 2.01, and to enter into a Custodial Agreement for
such purpose and any documents delivered thereunder shall be delivered to the
Custodian and any Officer's Certificates delivered with respect thereto shall
be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that
the conveyance of the Mortgage Loans by the Depositor to the Trustee as
provided in this Section 2.01 be, and be construed as, a sale of the Mortgage
Loans by the Depositor to the Trustee. It is, further, not the intention of
the parties to this Agreement that such conveyance be deemed a pledge of the
Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties to this Agreement, the Mortgage Loans are held to be the
property of the Depositor, or if any for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans then (a)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code; (b) the
conveyance provided for in
54
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 I and declares that it holds and will hold such documents and the
other documents delivered to it constituting the Mortgage Files, and that it
holds or will hold such other assets as are included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it will maintain possession
of the Mortgage Notes in the State of Illinois or the State of Texas, unless
otherwise permitted by the Rating Agencies.
The Depositor hereby assigns to the Trustee its security interest in
and to any Additional Collateral, its right to receive amounts due or to
become due in respect of any Additional Collateral, all of its rights in each
Additional Collateral Agreement, and its rights as beneficiary under the
Limited Purpose Surety Bond in respect of any Additional Collateral Mortgage
Loans. With respect to any Additional Collateral Mortgage Loan, the Additional
Collateral Servicer shall cause to be filed in the appropriate recording
office a Form UCC-3 giving notice of the assignment of the related security
interest to the Trust Fund and shall thereafter cause the timely filing of all
necessary continuation statements with regard to such financing statements.
The Trustee or the Custodian agrees to execute and deliver on the
Closing Date to the Depositor, the Master Servicer, each Seller, each Servicer
and the Trust Administrator a Trust Receipt and Initial Certification in the
form annexed hereto as Exhibit I. Based on its
55
review and examination, and only as to the documents identified in such Trust
Receipt and Initial Certification, the Trustee or the Custodian acknowledges
that such documents appear regular on their face and relate to such Mortgage
Loan. The Trustee or the Custodian shall be under no duty or obligation to
inspect, review or examine said documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
Not later than 90 days after the Closing Date, the Trustee or the
Custodian shall deliver to the Depositor, the Master Servicer, each Seller and
Servicer and the Trust Administrator a Trust Receipt and Final Certification
in the form annexed hereto as Exhibit J, with any applicable exceptions noted
thereon.
Subject to the provisions of Section 2.01 and subject to any
exceptions noted on the exception report described in the next paragraph
below, the Trustee acknowledges receipt of the documents referred to in
Section 2.01 above and declares that it holds and will hold such documents and
the other documents delivered to it constituting the Mortgage File, and that
it holds or will hold all such assets and such other assets included in the
definition of the Trust Fund and the rights of Cendant with respect to any
Additional Collateral and the Limited Purpose Surety Bond assigned to the
Trustee in trust for the exclusive use and benefit of all present and future
Certificateholders.
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.
With respect to each Mortgage Loan for which it is the Seller, each
Seller shall promptly correct or cure such defect within 90 days from the date
it was so notified of such defect and, if such Seller does not correct or cure
such defect within such period, such Seller shall either (a) substitute for
the related Mortgage Loan a Qualified Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03, or (b) purchase such Mortgage Loan from the Trustee
or the Custodian within 90 days from the date that 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
56
hereunder has not been returned by the appropriate recording office or (b) as
to which there is a dispute as to location or status of such Mortgage Loan.
Such notice shall be delivered every 90 days thereafter until the related
Mortgage Loan is returned to the Trustee. Any such substitution pursuant to
(a) above or purchase pursuant to (b) above shall not be effected prior to the
delivery to the Trustee and the Trust Administrator of the Opinion of Counsel
required by Section 2.05 hereof, if any, and any substitution pursuant to (a)
above shall not be effected prior to the additional delivery to the Trustee or
the Trust Administrator of a Request for Release substantially in the form of
Exhibit K. No substitution is permitted to be made in any calendar month after
the Determination Date for such month. The Purchase Price for any such
Mortgage Loan shall be deposited by the 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 K 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 Trust Administrator, the Depositor
and any Certificateholder against the Sellers.
SECTION 2.03 Representations and Warranties of the Sellers, Master
Servicer and Servicers.
(a) Each of DLJMC, in its capacity as Seller, CMMC, in its capacity
as Master Servicer, Cendant, in its capacity as Seller and Servicer, WMMSC, in
its capacity as Servicer, and Olympus, in its capacity as Servicer and Special
Servicer, hereby makes the representations and warranties applicable to it set
forth in Schedule IIA, IIB, IIC, IID or IIE as applicable hereto, and by this
reference incorporated herein, to the Depositor, the Trustee and the Trust
Administrator, as of the Closing Date, or if so specified therein, as of the
Cut-off Date or such other date as may be specified. In addition, each of
Cendant, in its capacity as Servicer and Olympus, in its capacity as Servicer
and Special Servicer, makes the representations and warranties applicable to
it set forth in Schedule IIC or IIE, as applicable hereto, and by this
reference incorporated herein, to the Master Servicer as of the Closing Date,
or if so specified therein, as of the Cut-off Date or such other date as may
be specified.
(b) Each of DLJMC, in its capacity as Seller, and Cendant, in its
capacity as Seller hereby makes the representations and warranties set forth
in Schedule IIIA or IIIB applicable to the DLJMC Mortgage Loans and the
Cendant Mortgage Loans, respectively, and by this reference incorporated
herein, to the Depositor, the Trustee and the Trust Administrator, as of the
Closing Date, or if so specified therein, as of the Cut-off Date or such other
date as may be specified. In addition, solely with respect to each
representation and warranty made by Cendant with respect to the Cendant
Mortgage Loans that is made as of April 26, 2002, DLJMC hereby represents and
warrants to and for the benefit of the Trustee and the Trust Administrator as
of the date hereof that nothing has occurred since April 26, 2002 to cause any
of such representations
57
and warranties to be untrue as of the date hereof with respect to the Cendant
Mortgage Loans. DLJMC hereby agrees that, in the event that a breach of the
representation in the preceding sentence occurred after April 26, 2002 but
prior to the Closing Date, DLJMC shall abide by the repurchase and
substitution provisions set forth in this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Each Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made by it pursuant to Section
2.03(b) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan sold by such Seller to the Trust, it
shall cure such breach in all material respects, and if such breach is not so
cured, shall, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Qualified
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below; provided, however, that any such substitution pursuant to (i) above
shall not be effected prior to the delivery to the Trustee and the Trust
Administrator of the Opinion of Counsel required by Section 2.05 hereof, if
any, and any such substitution pursuant to (i) above shall not be effected
prior to the additional delivery to the Trustee or the Trust Administrator of
a Request for Release substantially in the form of Exhibit K relating to the
Deleted Mortgage Loan and the Mortgage File for any such Qualified Substitute
Mortgage Loan. The related Seller shall promptly reimburse the Trustee, the
Trust Administrator, the Special Servicer and the related Servicer (if such
Servicer is not the Seller of such Mortgage Loan) for any actual out-of-pocket
expenses reasonably incurred by the Trustee, the Trust Administrator, the
Special Servicer and the related Servicer (if such Servicer is not the Seller
of such Mortgage Loan) 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 any
of the Depositor, the Master Servicer, any Seller, any Servicer, the Special
Servicer, the Trustee or the Trust Administrator that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan or the interests of
the Certificateholders therein, notwithstanding the related 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 such
Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any
58
Deleted Mortgage Loan for such month and thereafter the related Seller shall
be entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The related Seller shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Qualified Substitute Mortgage Loan
or Loans and the related Seller shall deliver the amended Mortgage Loan
Schedule to the Trustee, the Servicers and the Trust Administrator. Upon such
substitution, the Qualified Substitute Mortgage Loan or Loans shall be subject
to the terms of this Agreement in all respects, and the related Seller shall
be deemed to have made with respect to such Qualified Substitute Mortgage Loan
or Loans, as of the date of substitution, the representations and warranties
made pursuant to Section 2.03(b) with respect to such Mortgage Loan. Upon any
such substitution and the deposit to the Collection Account of the amount
required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee or the Custodian, as
applicable, shall release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to such Seller and
shall execute and deliver at the related Seller's direction such instruments
of transfer or assignment prepared by such Seller, in each case without
recourse, as shall be necessary to vest title in such Seller, or its designee,
the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant
to this Section 2.03.
For any month in which a Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master
Servicer, or WMMSC if such Deleted Mortgage Loan is a WMMSC Serviced Mortgage
Loan, shall determine the amount (if any) by which the aggregate principal
balance of all such Qualified Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of the scheduled principal portion
of the monthly payments due in the month of substitution). The amount of such
shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be deposited in the Collection Account by the related Seller on or
before the Business Day immediately preceding the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be repurchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Collection Account on or
before the Business Day immediately preceding the Distribution Date in the
month following the month during which such Seller became obligated hereunder
to repurchase or replace such Mortgage Loan and upon such deposit of the
Purchase Price, the delivery of the Opinion of Counsel if required by Section
2.05 and receipt of a Request for Release in the form of Exhibit K hereto, the
Trustee, the Trust Administrator or the Custodian, as applicable, shall
release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment prepared
by such Person, in each case without recourse, as shall be necessary to
transfer title from the Trustee. It is understood and agreed that the
obligation under this Agreement of any Person to cure, repurchase or
substitute any Mortgage Loan as to which a breach has occurred and is
continuing shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Trustee or the
Trust Administrator on their behalf.
59
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee,
the Trust Administrator or the Custodian for the benefit of the
Certificateholders.
Notwithstanding the foregoing, the substitution of a Deleted
Mortgage Loan that is a WMMSC Serviced Mortgage Loan or the repurchase of a
Mortgage Loan that is a WMMSC Serviced Mortgage Loan by a Seller shall be
subject to, and shall in no way adversely affect, the right of WMMSC to
continue servicing and collecting its Servicing Fee for such Deleted Mortgage
Loan or Mortgage Loan as, applicable.
SECTION 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans that, as of the Closing Date, assuming good
title has been conveyed to the Depositor, the Depositor had good title to the
Mortgage Loans and Mortgage Notes, and did not encumber the Mortgage Loans
during its period of ownership thereof, other than as contemplated by the
Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the Mortgage Files to
the Trustee.
SECTION 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 shall be made more than 90 days after
the Closing Date unless the related Seller delivers to the Trustee and the
Trust Administrator an Opinion of Counsel, which Opinion of Counsel shall not
be at the expense of any of the Trustee, the Trust Administrator or the Trust
Fund, addressed to the Trustee and the Trust Administrator, to the effect that
such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause each REMIC created hereunder to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
SECTION 2.06 Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
together with the assignment to it of all other assets included in the Trust
Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trust Administrator,
pursuant to the written request of the Depositor executed by an officer of the
Depositor, has executed the Certificates and caused them to be authenticated
and delivered to or upon the order of the Depositor in authorized
denominations which evidence ownership of the Trust Fund. The rights of the
Holders of such Certificates to receive distributions from the Trust Fund and
all ownership interests of the Holders of the Certificates in such
distributions shall be as set forth in this Agreement.
60
SECTION 2.07 REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trust
Administrator to treat the Trust Fund (exclusive of any entitlement to
Dividend Returned Interest pursuant to Section 4.01(II) herein) as three
separate REMICs (the "REMIC") under the Code and, if necessary, under
applicable state law. Each such election will be made on Form 1066 or other
appropriate federal tax or information return (including Form 8811) or any
appropriate state return (x) for the taxable year ending on the last day of
the calendar year in which the Certificates are issued and (y) for the taxable
year ending on the last day of the calendar year in which Certificates are
first sold to a third party. The Closing Date is hereby designated as the
"startup day" of each REMIC created hereunder within the meaning of Section
860G(a)(9) of the Code. The "regular interests" (within the meaning of Section
860G of the Code) in the Master REMIC shall consist of the Regular
Certificates (exclusive of any entitlement to Dividend Returned Interest
pursuant to Section 4.01(II) herein) and the Class AR Certificates shall
represent the beneficial ownership of the "residual interest" in each REMIC
created hereunder. Neither the Depositor nor the Trust Administrator nor the
Trustee shall permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in any REMIC other than the Certificates. The Trust
Administrator shall separately account for Dividend Returned Interest as an
obligation of the related Servicer to pay contingent interest to the Group V
Certificates.
(b) The Trust Administrator on behalf of the Holders of the Class AR
Certificates, shall act as agent for the Class AR Certificateholder as the
"tax matters person" (within the meaning of the REMIC Provisions) for each
REMIC created hereunder, in the manner provided under Treasury regulations
section 1.860F-4(d) and temporary Treasury regulations section
301.6231(a)(7)-1T. By its acceptance of a Class AR Certificate, each Holder
thereof shall have agreed to such appointment and shall have consented to the
appointment of the Trust Administrator as its agent to act on behalf of each
REMIC created hereunder pursuant to the specific duties outlined herein.
(c) A Holder of the Class AR Certificates, by the purchase of such
Certificates, shall be deemed to have agreed to timely pay, upon demand by the
Trust Administrator, the amount of any minimum California state franchise
taxes due with respect to each REMIC created hereunder under Sections 23151(a)
and 23153(a) of the California Revenue and Taxation Code. Notwithstanding the
foregoing, the Trust Administrator shall be authorized to retain the amount of
such tax from amounts otherwise distributable to such Holder in the event such
Holder does not promptly pay such amount upon demand by the Trust
Administrator. In the event that any other federal, state or local tax is
imposed, including without limitation taxes imposed on a "prohibited
transaction" of a REMIC as defined in Section 860F of the Code, such tax shall
be charged against amounts otherwise available for distribution to the
applicable Holder of a Class AR Certificate and then against amounts otherwise
available for distribution to the Holders of Regular Certificates in
accordance with the provisions set forth in Section 4.01. The Trust
Administrator or the Trustee shall promptly deposit in the Certificate Account
any amount of "prohibited transaction" tax that
61
results from a breach of the Trust Administrator's or the Trustee's duties,
respectively, under this Agreement. The Master Servicer or the related
Servicer shall promptly deposit in the Certificate Account any amount of
"prohibited transaction" tax that results from a breach of the Master
Servicer's or such Servicer's duties, respectively, under this Agreement.
(d) The Trust Administrator shall act as attorney-in-fact and as
agent on behalf of the tax matters person of each REMIC created hereunder and
in such capacity the Trust Administrator shall: (i) prepare, sign and file, or
cause to be prepared, signed and filed, federal and state tax returns using a
calendar year as the taxable year for each REMIC created hereunder when and as
required by the REMIC Provisions and other applicable federal income tax laws
as the direct representative of each such REMIC in compliance with the Code
and shall provide copies of such returns as required by the Code; (ii) make an
election, on behalf of each REMIC created hereunder, to be treated as a REMIC
on the federal tax return of such REMIC for its first taxable year, in
accordance with the REMIC Provisions; and (iii) prepare and forward, or cause
to be prepared and forwarded, to the Certificateholders and to any
governmental taxing authority all information reports as and when required to
be provided to them in accordance with the REMIC Provisions. The expenses of
preparing and filing such returns shall be borne by the Trust Administrator.
The Depositor, the Master Servicer and the related Servicer shall provide on a
prompt and timely basis to the Trust Administrator or its designee such
information with respect to each REMIC created hereunder as is in their
possession and reasonably required or requested by the Trust Administrator to
enable it to perform its obligations under this subsection.
In its capacity as attorney-in-fact and as agent on behalf of the
tax matters person, the Trust Administrator shall also: (A) act on behalf of
each REMIC created hereunder in relation to any tax matter or controversy
involving the Trust Fund, (B) represent the Trust Fund in any administrative
or judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto and (C) cause to be paid solely from the
sources provided herein the amount of any taxes imposed on each REMIC created
hereunder when and as the same shall be due and payable (but such obligation
shall not prevent the Trust Administrator or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Trust Administrator from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings).
(e) The Trust Administrator shall provide (i) to any transferor of a
Class AR Certificate such information as is necessary for the application of
any tax relating to the transfer of a Class AR Certificate to any Person who
is not a permitted transferee, (ii) to the Certificateholders such information
or reports as are required by the Code or the REMIC Provisions including
reports relating to interest, original issue discount and market discount or
premium and (iii) to the Internal Revenue Service the name, title, address and
telephone number of the person who will serve as the representative of each
REMIC created hereunder.
(f) The Trustee, to the extent directed by the Trust Administrator, the
Depositor and the Holder of the Class AR Certificates shall take any action or
cause the Trust Fund to take any action necessary to create or maintain the
status of each REMIC created hereunder as a REMIC under the REMIC Provisions
and shall assist each other as necessary to create or maintain such status.
Neither the Trustee, to the extent directed by the Trust Administrator, nor
the Holder of the Class AR Certificates shall take any action, cause the Trust
Fund to take any action or fail to take (or fail to cause the Trust Fund to
take) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of each REMIC created
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hereunder as a REMIC or (ii) result in the imposition of a tax upon a REMIC
(including, but not limited to, the tax on prohibited transactions as defined
in Code Section 860F(a)(2) and the tax on prohibited contributions set forth
in Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee and the Trust Administrator have received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such status or result in
the imposition of such a tax.
The Trustee and the Trust Administrator shall not take or fail to
take any action (whether or not authorized hereunder) as to which the Master
Servicer, a Servicer or the Depositor has advised it in writing that it has
received an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. In addition, prior to taking any action
with respect to a REMIC or their assets, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Trustee and the Trust Administrator will consult with
the Master Servicer, the Servicers and the Depositor or their designees, in
writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC created hereunder and the Trustee and
the Trust Administrator shall not take any such action or cause that REMIC to
take any such action as to which the Master Servicer, any Servicer or the
Depositor has advised it in writing that an Adverse REMIC Event could occur.
In addition, prior to taking any action with respect to any REMIC
created hereunder or the assets therein, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Holder of the Class AR Certificates will consult with
the Trust Administrator or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
REMIC created hereunder, and no such Person shall take any action or cause the
Trust Fund to take any such action as to which the Trustee or the Trust
Administrator has advised it in writing that an Adverse REMIC Event could
occur. The Trustee and the Trust Administrator may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take action not permitted by this Agreement.
At all times as may be required by the Code, the Trust Administrator
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of
each REMIC created hereunder 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
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mortgages" or "permitted investments", (y) Section 3.01 of this Agreement to
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 or (z) Section 3.11(c) of this Agreement to not cause any REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or to subject any REMIC created hereunder to
the imposition of any federal, state or local income taxes on the income
earned from such Mortgaged Property under Section 860G(c) of the Code of
otherwise, (ii) to the Master Servicer, if such tax arises out of or results
from a breach by the Master Servicer of any of its obligations under this
Agreement or if the Master Servicer has in its sole discretion determined to
indemnify the Trust Fund against such tax, (iii) to the Trust Administrator,
if such tax arises out of or results from a breach by the Trust Administrator
of any of its obligations under this Article II, (iv) to the Trustee, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article II, or (v) otherwise against amounts on deposit
in the Collection Account as provided by Section 3.08 and on the Distribution
Date(s) following such reimbursement the aggregate of such taxes shall be
allocated in reduction of the Interest Distribution Amount on each Class
entitled thereto in the same manner as if such taxes constituted a Prepayment
Interest Shortfall.
In accordance with Section 2.07(c), the related Servicer, the Master
Servicer, the Trust Administrator or the Trustee, as applicable, shall
promptly deposit in the Certificate Account or Collection Account, as
applicable, 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 Master Servicer or the related Servicer to
promptly deposit in the Certificate Account or Collection Account, as
applicable, any amount of such tax shall be an Event of Default, as provided
in Section 8.01(b). However, in the case of WMMSC, the prompt deposit of any
such amount in the Certificate Account shall cure any Special Event of Default
unless notice of such Special Event of Default is accompanied by an Opinion of
Counsel, at the expense of WMMSC, to the effect that the cumulative effect of
WMMSC's breach or breaches, notwithstanding the deposit of the amounts of any
such tax, shall have given rise to a substantial risk that any REMIC created
hereunder would fail to continue to qualify as a REMIC.
(h) The Trust Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC created hereunder on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(i) Following the Startup Day, none of any Servicer, the Trustee or the
Trust Administrator shall accept any contributions of assets to any REMIC
created hereunder unless (subject to Section 2.05) such Servicer, the Trustee
or the Trust Administrator shall have received an Opinion of Counsel (at the
expense of the party seeking to make such contribution) to the effect that the
inclusion of such assets in a REMIC will not cause that REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding, or
subject that REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
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(j) None of any Servicer, the Trustee or the Trust Administrator shall
(subject to Section 2.05) enter into any arrangement by which a REMIC will
receive a fee or other compensation for services nor permit such REMIC to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in
Section 860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the Trust Administrator
shall prepare and file with the Internal Revenue Service Form 8811,
"Information Return for Real Estate Mortgage Investment Conduits (REMIC) and
Issuers of Collateralized Debt Obligations" for each REMIC created hereunder.
(l) None of the Trustee, the Trust Administrator, the Master Servicer
or any Servicer shall sell, dispose of or substitute for any of the Mortgage
Loans (except in connection with (i) the default, imminent default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition
or sale of a Mortgaged Property acquired by deed in lieu of foreclosure, (ii)
the bankruptcy of any REMIC created hereunder, (iii) the termination of any
REMIC created hereunder pursuant to Article X of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement)
nor acquire any assets for a REMIC, nor sell or dispose of any investments in
the Collection Account or the Certificate Account for gain nor accept any
contributions to a REMIC after the Closing Date (a) unless it has received an
Opinion of Counsel that such sale, disposition, substitution or acquisition
will not affect adversely the status of any REMIC created hereunder as a REMIC
or (b) unless the Master Servicer or such Servicer has determined in its sole
discretion to indemnify the Trust Fund against such tax.
(m) In order to enable the Trustee and the Trust Administrator to
perform their duties as set forth herein, the Depositor shall provide, or
cause to be provided to the Trustee and the Trust Administrator, within ten
days after the Closing Date, all information or data that the Trustee and the
Trust Administrator determine to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans and the Trustee and the Trust
Administrator shall be entitled to rely upon any and all such information and
data in the performance of its duties set forth herein. Thereafter, the Master
Servicer, or with respect to the WMMSC Serviced Mortgage Loans, WMMSC, 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 Serviced Mortgage Loans) that the Trustee or the
Trust Administrator may from time to time reasonably request in order to
enable the Trustee and the Trust Administrator to perform their duties as set
forth herein and the Trustee and the Trust Administrator shall be entitled to
rely upon any and all such information and data in the performance of its
duties set forth herein. DLJMC shall indemnify the Trustee and the Trust
Administrator and hold it harmless for any loss, liability, damage, claim or
expense of the Trustee and the Trust Administrator arising from any failure of
the Depositor to provide, or to cause to be provided, accurate information or
data to the Trustee and the Trust Administrator on a timely basis. The Master
Servicer shall indemnify the Trustee and the Trust Administrator and hold it
harmless for any loss, liability, damage, claim or expense of the Trustee and
the Trust Administrator arising from any failure of the Master Servicer to
provide, or to cause to be provided, accurate information or data required to
be provided by the Master
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Servicer to the Trustee and the Trust Administrator on a timely basis;
provided, however, that if any Servicer (other than WMMSC) shall fail to
provide such information to the Master Servicer upon timely request for such
information by the Master Servicer, that Servicer shall indemnify the Master
Servicer, the Trustee and the Trust Administrator and hold it harmless for any
loss, liability, damage, claim or expense of the Master Servicer, the Trustee
and the Trust Administrator arising from any failure of that Servicer to
provide, or to cause to be provided, the information referred to above on a
timely basis. WMMSC shall indemnify the Trustee and the Trust Administrator
and hold each of them 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 and the Trust
Administrator arising from any failure of WMMSC to provide, or to cause to be
provided, the loan level information or data regarding the WMMSC Serviced
Mortgage Loans reasonably requested by the Trustee or Trust Administrator, 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 and co-trust
administrator appointed pursuant to this Agreement.
(n) The Trust Administrator shall treat the Basis Risk Reserve Fund as
an outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
that is owned by the Class V-X Certificateholders and that is not an asset of
any REMIC created hereunder . The Trust Administrator shall account for the
rights of the Class V-A, Class V-M-1, Class V-M-2 and Class V-B
Certificateholders to receive payments from the Basis Risk Reserve Fund as
rights in an interest rate cap contract written by the Class V-X
Certificateholders in favor of the Class V-A, Class V-M-1, Class V-M-2 and
Class V-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 V-A, Class V-M-1, Class V-M-2 and Class
V-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 V-X Certificate shall represent an obligation under
an interest rate cap contract. For purposes of determining the issue price of
Master REMIC regular interests, the Trust Administrator shall assume that the
interest rate cap contract has a value of $5,000.
SECTION 2.08 Covenants of the Master Servicer and each Servicer.
The Master Servicer and each Servicer, severally and not jointly,
hereby covenants to the Depositor, the Trustee and the Trust Administrator as
follows:
(a) Such Servicer or the Master Servicer shall comply in the
performance of its obligations under this Agreement with all reasonable rules
and requirements of the insurer under each Mortgage Guaranty Insurance Policy
and the RMIC PMI Policy; and
(b) No written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor, the Trustee or the Trust Administrator and
prepared by the Master Servicer or such Servicer pursuant to this Agreement
will contain any untrue statement of a material fact.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 Master Servicer and Servicers to Service Mortgage Loans.
For and on behalf of the Certificateholders, as independent
contractors of the Trustee, the Master Servicer and each Servicer, severally
and not jointly, shall service and administer the Mortgage Loans in accordance
with the terms of this Agreement and with Accepted Servicing Practices. The
obligations of each of Cendant, Olympus and WMMSC hereunder to service and
administer the Mortgage Loans shall be limited to the Cendant Serviced
Mortgage Loans, Olympus Serviced Mortgage Loans and 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 Cendant Serviced Mortgage Loans (and the related proceeds thereof and
related REO Properties), in the case of Cendant, 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. The obligations of the Master Servicer to
master service and administer the Mortgage Loans shall be limited to the
Master Serviced Mortgage Loans, the Cendant Serviced Mortgage Loans, the
Olympus Serviced Mortgage Loans and the Special Serviced Mortgage Loans.
Notwithstanding anything to the contrary contained in this Agreement, the
Master Servicer shall have no obligations to master service or administer the
WMMSC Serviced Mortgage Loans. In connection with such servicing and
administration, the Master Servicer and each Servicer shall have full power
and authority, acting alone and/or through Subservicers as provided in Section
3.02 hereof, to do or cause to be done any and all things that it may deem
necessary or desirable in connection with such servicing and administration,
including but not limited to, the power and authority, subject to the terms
hereof (i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds, and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan; provided that
neither the Master Servicer nor a Servicer shall take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee, the Trust Administrator or the Certificateholders
under this Agreement. The Master Servicer and each Servicer shall represent
and protect the interests of the Trust Fund in the same manner as it protects
its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan, and shall not make or
permit any modification, waiver or amendment of any Mortgage Loan which would
cause any REMIC created hereunder to fail to qualify as a REMIC or result in
the imposition of any tax under Section 860F(a) or Section 860G(d) of the
Code. Without limiting the generality of the foregoing, the Master Servicer
and each Servicer, in its own name or in the name of the Depositor and the
Trustee, is hereby authorized and empowered by the Depositor, the Trustee
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and the Trust Administrator, when the Master Servicer or such Servicer
believes it appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Trust Administrator, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans, and with respect
to the Mortgaged Properties held for the benefit of the Certificateholders.
The Master Servicer and each Servicer shall prepare and deliver to the
Depositor and/or the Trustee and/or the Trust Administrator such documents
requiring execution and delivery by either or both of them as are necessary or
appropriate to enable the Master Servicer or such Servicer to service and
administer the Mortgage Loans to the extent that the Master Servicer or such
Servicer is not permitted to execute and deliver such documents pursuant to
the preceding sentence. Upon receipt of such documents, the Depositor and/or
the Trustee or the Trust Administrator shall execute such documents and
deliver them to the Master Servicer or such Servicer.
Notwithstanding any other provision of this Agreement or the
Additional Collateral Servicing Agreement to the contrary, except as provided
below, neither the Master Servicer nor Cendant shall have any duty or
obligation to service and administer the Additional Collateral and neither the
Master Servicer nor Cendant shall be deemed to be the Additional Collateral
Servicer, unless and until MLCC's obligations to administer the Additional
Collateral under the Additional Collateral Servicing Agreement have been
terminated with respect to the Additional Collateral Mortgage Loans, in which
case, Cendant shall be bound to service and administer the Additional
Collateral and the Limited Purpose Surety Bond in accordance with the
provisions of this Agreement and the related Additional Collateral Agreements
from the date of such termination. The Trust Administrator, as assignee of the
Additional Collateral Servicing Agreement, shall enforce the obligations of
MLCC to service and administer the Additional Collateral as provided in the
Additional Collateral Servicing Agreement, and shall take appropriate action
thereunder if MLCC fails to substantially comply with its obligations to
administer the Additional Collateral. In the event the Trustee receives an
indemnification payment from MLCC under Section 3 of the Additional Collateral
Servicing Agreement that is attributable to losses resulting from MLCC's
failure to administer the Additional Collateral in accordance with the terms
of the Additional Collateral Servicing Agreement in connection with Additional
Collateral Mortgage Loans, the Trustee shall deposit such amount in the
Collection Account.
In accordance with the standards of the preceding paragraph and
unless determined in good faith to be a Nonrecoverable Advance, the Master
Servicer and each Servicer shall advance or cause to be advanced funds as
necessary for the purpose of effecting the payment of taxes and assessments on
the Mortgaged Properties, which advances constitute Servicing Advances and
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.06, and further as provided in Section 3.08.
The costs incurred by the Master Servicer or a Servicer, if any, in effecting
the timely payments of taxes and assessments on the Mortgaged Properties and
related insurance premiums shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the Stated Principal
Balances of the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
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The Master Servicer and each Servicer hereby acknowledges that, to
the extent the Master Servicer or such Servicer has previously serviced some
or all of the Mortgage Loans pursuant to another servicing agreement, the
provisions contained in this Agreement shall supersede the provisions
contained in such other servicing agreement from and after the Closing Date.
Notwithstanding anything in this Agreement to the contrary, the
purchase of any WMMSC Serviced Mortgage Loan by any Person shall be subject to
the rights of WMMSC to continue servicing such WMMSC Serviced Mortgage Loan
for the same Servicing Fee substantially in accordance with the terms of this
Agreement.
SECTION 3.02 Subservicing; Enforcement of the Obligations of Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer on behalf of
the Master Servicer or the related Servicer in accordance with the servicing
provisions of this Agreement, provided that the Subservicer is a FNMA-approved
lender or a FHLMC seller/servicer in good standing. The Master Servicer and
each Servicer may perform any of its servicing responsibilities hereunder or
may cause the Subservicer to perform any such servicing responsibilities on
its behalf, but the use by the Master Servicer or such Servicer of the
Subservicer shall not release the Master Servicer or such Servicer from any of
its obligations hereunder and the Master Servicer or such Servicer shall
remain responsible hereunder for all acts and omissions of the Subservicer as
fully as if such acts and omissions were those of such Master Servicer or
Servicer. The Master Servicer and each Servicer shall pay all fees and
expenses of any Subservicer engaged by the Master Servicer or such Servicer
from its own funds.
Notwithstanding the foregoing, the Master Servicer and each Servicer
shall be entitled to outsource one or more separate servicing functions to a
Person (each, an "Outsourcer") that does not meet the eligibility requirements
for a Subservicer, so long as such outsourcing does not constitute the
delegation of the Master Servicer's or such Servicer's obligation to perform
all or substantially all of the servicing of the related Mortgage Loans to
such Outsourcer. In such event, the use by the Master Servicer or a Servicer
of any such Outsourcer shall not release the Master Servicer or the related
Servicer from any of its obligations hereunder and the Master Servicer or such
Servicer shall remain responsible hereunder for all acts and omissions of such
Outsourcer as fully as if such acts and omissions were those of the Master
Servicer or such Servicer, and the Master Servicer or such Servicer shall pay
all fees and expenses of the Outsourcer from such Master Servicer or
Servicer's own funds.
(b) At the cost and expense of the Master Servicer or a Servicer,
without any right of reimbursement from the Depositor, the Trustee, the Trust
Administrator or the applicable Collection Account, the Master Servicer or
such Servicer shall be entitled to terminate the rights and responsibilities
of its Subservicer and arrange for any servicing responsibilities to be
performed by a successor Subservicer meeting the requirements set forth in
Section 3.02(a), provided, however, that nothing contained herein shall be
deemed to prevent or prohibit the Master Servicer or such Servicer, at the
Master Servicer's or such Servicer's option, from electing to service the
related Mortgage Loans itself. In the event that the Master Servicer or a
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Servicer's responsibilities and duties under this Agreement are terminated
pursuant to Section 8.01, and if requested to do so by the Trustee or Trust
Administrator, the Master Servicer or such Servicer shall, at its own cost and
expense terminate the rights and responsibilities of its Subservicer as soon
as is reasonably possible. The Master Servicer and each Servicer shall pay all
fees, expenses or penalties necessary in order to terminate the rights and
responsibilities of its Subservicer from such Master Servicer or Servicer's
own funds without any right of reimbursement from the Depositor, Trustee,
Trust Administrator, or the applicable Collection Account.
(c) Notwithstanding any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or a Servicer and its
Subservicer, the Master Servicer or a Servicer and its Outsourcer, or any
reference herein to actions taken through the Subservicer, the Outsourcer, or
otherwise, neither the Master Servicer nor the related Servicer shall be
relieved of its obligations to the Depositor, Trustee, the Trust Administrator
or Certificateholders and shall be obligated to the same extent and under the
same terms and conditions as if it alone were servicing and administering the
related Mortgage Loans. The Master Servicer and each Servicer shall be
entitled to enter into an agreement with its Subservicer and Outsourcer for
indemnification of the Master Servicer or such Servicer or Outsourcer, as
applicable, by such Subservicer and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
For purposes of this Agreement, the Master Servicer or a Servicer
shall be deemed to have received any collections, recoveries or payments with
respect to the related Mortgage Loans that are received by a related
Subservicer regardless of whether such payments are remitted by the
Subservicer to the Master Servicer or such Servicer.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving a Subservicer shall be deemed to be
between the Subservicer, and the Master Servicer or the related Servicer
alone, and the Depositor, the Trustee, the Trust Administrator and the other
Servicers and the Special Servicer shall have no obligations, duties or
liabilities with respect to a Subservicer including no obligation, duty or
liability of the Depositor, Trustee, the Trust Administrator, the Special
Servicer or other Servicers to pay a Subservicer's fees and expenses.
SECTION 3.03 Notification of Adjustments.
With respect to each Mortgage Loan, the Master Servicer or the
related Servicer shall adjust the Mortgage Rate on the related Adjustment Date
in compliance with the requirements of applicable law and the related Mortgage
and Mortgage Note. The Master Servicer or the related Servicer shall execute
and deliver any and all necessary notices required under applicable law and
the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Rate adjustments. Upon the discovery by the Master Servicer or the related
Servicer or the receipt of notice from the Trust Administrator that the Master
Servicer or such Servicer has failed to adjust a Mortgage Rate in accordance
with the terms of the related Mortgage Note, the Master Servicer or such
Servicer shall immediately deposit in the Certificate Account from its own
funds the amount of any interest loss or deferral caused the Trust
Administrator thereby.
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SECTION 3.04 Trust Administrator to Act as Master Servicer or Servicer.
In the event that (A) the Master Servicer shall for any reason no
longer be Master Servicer hereunder or (B) any Servicer shall for any reason
no longer be a Servicer hereunder and, with respect to any Servicer other than
WMMSC, the Master Servicer shall for any reason no longer be Master Servicer
hereunder (including, in each case, by reason of an Event of Default), the
Trust Administrator or its successor shall thereupon assume all of the rights
and obligations of the Master Servicer or such Servicer hereunder arising
thereafter (except that the Trust Administrator shall not be (i) liable for
losses of the Master Servicer or such Servicer pursuant to Section 3.09 hereof
or any acts or omissions of the related predecessor of the Master Servicer or
such Servicer hereunder, (ii) obligated to make Advances if it is prohibited
from doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03 hereof or (iv) deemed to have made any representations and warranties of
the Master Servicer or such Servicer hereunder). Any such assumption shall be
subject to Section 8.02 hereof.
The Master Servicer and each Servicer shall, upon request of the
Trust Administrator, but at the expense of the Master Servicer or such
Servicer, deliver to the assuming party all documents and records relating to
each Subservicing Agreement or substitute Subservicing Agreement and the
Mortgage Loans then being serviced thereunder and hereunder by the Master
Servicer or such Servicer and an accounting of amounts collected or held by it
and otherwise use its best efforts to effect the orderly and efficient
transfer of the Subservicing Agreement or substitute Subservicing Agreement to
the assuming party.
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account.
(a) Continuously from the date hereof until the principal and interest
on all Mortgage Loans have been paid in full or such Mortgage Loans have
become Liquidated Mortgage Loans, the Master Servicer and each Servicer shall
proceed in accordance with Accepted Servicing Practices to collect all
payments due under each of the related Mortgage Loans when the same shall
become due and payable to the extent consistent with this Agreement and the
terms and provisions of any related Mortgage Guaranty Insurance Policy and
shall take special care with respect to Mortgage Loans for which the Master
Servicer or a Servicer collects escrow payments in ascertaining and estimating
Escrow Payments and all other charges that will become due and payable with
respect to the Mortgage Loans and the Mortgaged Properties, to the end that
the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable. Consistent with the
foregoing, in connection with Mortgage Loans which it is directly servicing,
the Master Servicer or each Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) extend the Due Dates for payments
due on a Mortgage Note for a period not greater than 180 days; provided,
however, that neither the Master Servicer nor such Servicer can extend the
maturity of any such Mortgage Loan past the date on which the final payment is
due on the latest maturing Mortgage Loan as of the Cut-off Date. In the event
of any such arrangement, the Master Servicer, other than with respect to the
WMMSC Serviced Mortgage Loans, or the related Servicer shall make Advances on
the related Mortgage Loan in
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accordance with the provisions of Section 5.01 during the scheduled period in
accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements. Neither the Master
Servicer nor any Servicer shall be required to institute or join in litigation
with respect to collection of any payment (whether under a Mortgage, Mortgage
Note or otherwise or against any public or governmental authority with respect
to a taking or condemnation) if it reasonably believes that enforcing the
provision of the Mortgage or other instrument pursuant to which such payment
is required is prohibited by applicable law.
(b) The Master Servicer and each Servicer shall segregate and hold all
funds collected and received pursuant to a Mortgage Loan separate and apart
from any of its own funds and general assets and shall establish and maintain
one or more Collection Accounts, in the form of time deposit or demand
accounts, titled "[[Master] Servicer's name], in trust for the Holders of
Credit Suisse First Boston Mortgage Securities Corp., Mortgage-Backed
Pass-Through Certificates, Series 2002-AR13" or, if established and maintained
by a Subservicer on behalf of the Master Servicer or a Servicer,
"[Subservicer's name], in trust for [[Master]Servicer's name]" or
"[Subservicer's name], as agent, trustee and/or bailee of principal and
interest custodial account for [[Master] Servicer's name], its successors and
assigns, for various owners of interest in [Servicer's name] mortgage-backed
pools. In the event that a Subservicer employs a subservicer, the Collection
Account shall be titled "[name of Subservicer's subservicer], in trust for
[Subservicer's name]." Each Collection Account shall be an Eligible Account
acceptable to the Depositor, the Trust Administrator and Trustee. Funds
deposited in a Collection Account may be drawn on by the Master Servicer or
the related Servicer in accordance with Section 3.08. Any funds deposited in a
Collection Account (other than an account established by WMMSC) shall either
be invested in Eligible Investments or at all times be fully insured to the
full extent permitted under applicable law. The creation of any Collection
Account (other than an account established by WMMSC) shall be evidenced by a
certification in the form of Exhibit Q-1 hereto, in the case of an account
established with such Master Servicer or Servicer, or by a letter agreement in
the form of Exhibit Q-2 hereto, in the case of an account held by a depository
other than the related Master Servicer or Servicer. A copy of such
certification or letter agreement shall be furnished to the Depositor and
Trustee. Notwithstanding the foregoing, one of the Collection Accounts
established by WMMSC shall be an Investment Account.
(c) The Master Servicer and each Servicer shall deposit in the
applicable Collection Account on a daily basis, unless otherwise indicated,
and retain therein, the following collections remitted by Subservicers or
payments received by the Master Servicer or such Servicer and payments made by
the Master Servicer or such Servicer subsequent to the Cut-off Date, other
than payments of principal and interest due on or before the Cut-off Date:
(i) all payments on account of principal on the related
Mortgage Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the related
Mortgage Loans adjusted to the per annum rate equal to the Mortgage Rate
reduced by the sum of the related Expense Fee Rate, as applicable;
(iii) all Liquidation Proceeds on the related Mortgage Loans;
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(iv) all Insurance Proceeds on the related Mortgage Loans
including amounts required to be deposited pursuant to Section 3.09
(other than proceeds to be held in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 3.09);
(v) all Advances made by the Master Servicer or such Servicer
pursuant to Section 5.01;
(vi) no later than the withdrawal from the Collection Account
pursuant to Section 3.08(a)(viii) each month, the applicable amount of
the Compensating Interest Payment for the Master Servicer or such
Servicer (or if such Servicer, other than WMMSC, defaults in such
obligation, the Master Servicer) for the related Prepayment Period. The
aggregate of such deposits shall be made from the Master Servicer's or
such Servicer's own funds, without reimbursement therefor.
(vii) any amounts required to be deposited by the Master
Servicer or such Servicer in respect of net monthly income from REO
Property pursuant to Section 3.11;
(viii) any (x) amounts realized by MLCC or (y) Required Surety
Payments received by the Trustee or the related Servicer in respect of
any Additional Collateral; and
(ix) 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 the
Master Servicer or such Servicer into such Collection Account. In addition,
notwithstanding the provisions of this Section 3.05, the Master Servicer and
each Servicer may deduct from amounts received by it, prior to deposit to the
applicable Collection Account, any portion of any Scheduled Payment
representing the Master Servicing Fee or the applicable Servicing Fee and any
amount representing the RMIC PMI Fee paid by the Master Servicer or such
Servicer with respect to any RMIC PMI Mortgage Loan. In the event that the
Master Servicer or a Servicer shall remit any amount not required to be
remitted, it may at any time withdraw or direct the institution maintaining
the related Collection Account to withdraw such amount from such Collection
Account, any provision herein to the contrary notwithstanding. Such withdrawal
or direction may be accomplished by delivering written notice thereof to the
Trustee or such other institution maintaining such Collection Account which
describes the amounts deposited in error in such Collection Account. The
Master Servicer and each Servicer shall maintain adequate records with respect
to all withdrawals made by it pursuant to this Section. All funds deposited in
a Collection Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.08(a).
(d) On or prior to the Closing Date, the Trust Administrator shall
establish and maintain, on behalf of the Certificateholders, the Certificate
Account. The Trust Administrator shall, promptly upon receipt, deposit in the
Certificate Account and retain therein the following:
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(i) the aggregate amount remitted by the Master Servicer and
WMMSC to the Trust Administrator pursuant to Section 3.08(a)(viii);
(ii) any amount deposited by the Trust Administrator pursuant
to Section 3.05(e) in connection with any losses on Eligible Investments;
and
(iii) any other amounts deposited hereunder which are required
to be deposited in the Certificate Account.
In the event that the Master Servicer or WMMSC shall remit to the
Trust Administrator any amount not required to be remitted, the Master
Servicer or WMMSC, as applicable, may at any time direct the Trust
Administrator to withdraw such amount from the Certificate Account, any
provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering an Officer's Certificate to the Trust Administrator
which describes the amounts deposited in error in the Certificate Account. All
funds deposited in the Certificate Account shall be held by the Trust
Administrator in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section
3.08(b). In no event shall the Trust Administrator incur liability for
withdrawals from the Certificate Account at the direction of the Master
Servicer or WMMSC.
(e) Each institution at which a Collection Account or the Certificate
Account is maintained shall either hold such funds on deposit uninvested or
shall invest the funds therein as directed in writing by the Master Servicer
or the related Servicer or the Trust Administrator, respectively, in Eligible
Investments, which shall mature not later than (i) in the case of a Collection
Account, the Cash Remittance Date, and (ii) in the case of the Certificate
Account, the Business Day immediately preceding the Distribution Date, or on
the Distribution Date, with respect to Eligible Investments invested with an
affiliate of the Trust Administrator, and, in each case, shall not be sold or
disposed of prior to its maturity. All income and gain net of any losses
realized from any such balances or investment of funds on deposit in a
Collection Account shall be for the benefit of the Master Servicer or the
related Servicer as servicing compensation and shall be remitted to it monthly
as provided herein. The amount of any realized losses in a Collection Account
incurred in any such account in respect of any such investments shall promptly
be deposited by the Master Servicer or the related Servicer in the related
Collection Account. Neither the Trustee nor the Trust Administrator shall be
liable for the amount of any loss incurred in respect of any investment or
lack of investment of funds held in a Collection Account and made in
accordance with this Section 3.05. All income and gain net of any losses
realized from any such investment of funds on deposit in the Certificate
Account shall be for the benefit of the Trust Administrator as compensation
and shall be remitted to it monthly as provided herein. The amount of any
realized losses in the Certificate Account incurred in any such account in
respect of any such investments shall promptly be deposited by the Trust
Administrator in the Certificate Account.
(f) The Master Servicer and each Servicer shall give notice to the
Trustee, the Trust Administrator, each related Seller, each Rating Agency, and
the Depositor of any proposed change of the location of the related Collection
Account prior to any change thereof. The Trust Administrator shall give notice
to the Master Servicer and each Servicer, each Seller, each
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Rating Agency, the Trustee and the Depositor of any proposed change of the
location of the Certificate Account prior to any change thereof.
(g) The Master Servicer and each Servicer shall remit all Dividend
Returned Interest to the Trust Administrator for deposit to the Certificate
Account.
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-AR13", 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-AR13" or, if established and maintained by a Subservicer on behalf of the
Master Servicer or a Servicer, "[Subservicer's name], in trust for [[Master]
Servicer's name]" or "[Subservicer's name], as agent, trustee and/or bailee of
taxes and insurance custodial account for [[Master] Servicer's name], its
successors and assigns, for various owners of interest in [[Master] Servicer's
name] mortgage-backed pools. In the event that a Subservicer employs a
subservicer, the Escrow Accounts shall be titled "[name of Subservicer's
subservicer] in trust for [Subservicer's name]. The Escrow Accounts shall be
Eligible Accounts. Funds deposited in the Escrow Account may be drawn on by
the Master Servicer or the related Servicer in accordance with Section
3.06(d). Except with respect to WMMSC, the creation of any Escrow Account
shall be evidenced by a certification in the form of Exhibit P-1 hereto, in
the case of an account established with the Master Servicer or a Servicer, or
by a letter agreement in the form of Exhibit P-2 hereto, in the case of an
account held by a depository other than the Master Servicer or a Servicer. A
copy of such certification shall be furnished to the Depositor, the Trust
Administrator and the Trustee.
(b) Each Servicer shall deposit or cause to be deposited in its Escrow
Account or Accounts on a daily basis within two Business Days of receipt and
retain therein:
(i) all Escrow Payments collected on account of the related
Mortgage Loans, for the purpose of effecting timely payment of any such
items as required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds which are to
be applied to the restoration or repair of any Mortgaged Property.
(c) The Master Servicer and 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
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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 Master Servicer and related Servicer only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums, condominium
charges, fire and hazard insurance premiums or other items constituting
Escrow Payments for the related Mortgage;
(ii) to reimburse the Master Servicer or such Servicer for any
Servicing Advances made by the Master Servicer or such Servicer with
respect to a related Mortgage Loan, but only from amounts received on the
related Mortgage Loan which represent late collections of Escrow Payments
thereunder;
(iii) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Mortgage
Loan;
(iv) for transfer to the related Collection Account to reduce
the principal balance of the related Mortgage Loan in accordance with the
terms of the related Mortgage and Mortgage Note;
(v) for application to restore or repair of the related
Mortgaged Property in accordance with the procedures outlined in Section
3.09(e);
(vi) to pay to the related Servicer, or any Mortgagor to the
extent required by law, any interest paid on the funds deposited in such
Escrow Account; and
(vii) to clear and terminate such Escrow Account on the
termination of this Agreement.
(e) With respect to each Mortgage Loan, the applicable Servicer shall
maintain accurate records reflecting the status of ground rents and taxes and
any other item which may become a lien senior to the lien of the related
Mortgage and the status of Mortgage Guaranty Insurance Policy premiums, and
fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) and shall
effect or cause to be effected payment thereof prior to the applicable penalty
or termination date.
SECTION 3.07 Access to Certain Documentation and Information Regarding the
Mortgage Loans; Inspections.
(a) The Master Servicer and each Servicer shall afford the Depositor,
the Trustee and the Trust Administrator reasonable access to all records and
documentation regarding the Mortgage Loans and all accounts, insurance
information and other matters relating to this Agreement, such access being
afforded without charge, but only upon reasonable written request
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and during normal business hours at the office designated by the Master
Servicer or such Servicer. In addition, each Servicer other than WMMSC shall
afford the Master Servicer reasonable access to all records and documentation
regarding the Mortgage Loans and all accounts, insurance information and other
matters relating to this Agreement, such access being afforded without charge,
but only upon reasonable written request and during normal business hours at
the office designated by such Servicer. In addition, each Servicer shall
provide to the Special Servicer reasonable access to all records and
documentation regarding the Mortgage Loans serviced by it that become Special
Serviced Mortgage Loans.
(b) The Master Servicer and each Servicer, separately with respect to
the Mortgage Loans each directly services, shall inspect the related Mortgaged
Properties as often as deemed necessary by the Master Servicer or such
Servicer in such party's sole discretion, to assure itself that the value of
such Mortgaged Property is being preserved. In addition, if any Mortgage Loan
is more than 60 days delinquent, the Master Servicer or such Servicer, as
applicable, shall conduct subsequent inspections in accordance with Accepted
Servicing Practices or as may be required by the primary mortgage guaranty
insurer. The Master Servicer and each Servicer shall keep a written or
electronic report of each such inspection.
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and
Certificate Account.
(a) The Master Servicer and each Servicer may from time to time make
withdrawals from the related Collection Account for the following purposes:
(i) to pay to the Master Servicer or such Servicer (to the
extent not previously retained by the Master Servicer or such Servicer)
the servicing compensation to which it is entitled pursuant to Section
3.14, and to pay to the Master Servicer or such Servicer, as additional
servicing compensation, earnings on or investment income with respect to
funds in or credited to such Collection Account;
(ii) to reimburse the Master Servicer or such Servicer for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made (including without
limitation, late recoveries of payments, Liquidation Proceeds and
Insurance Proceeds to the extent received by the Master Servicer or such
Servicer);
(iii) to reimburse the Master Servicer or such Servicer for any
Nonrecoverable Advance previously made or any amount expended pursuant to
Section 3.11(a);
(iv) to reimburse the Master Servicer or such Servicer for (A)
unreimbursed Servicing Advances, the Master Servicer's or such Servicer's
right to reimbursement pursuant to this clause (A) with respect to any
Mortgage Loan being limited to amounts received on such Mortgage Loan
which represent late payments of principal and/or interest (including,
without limitation, Liquidation Proceeds and Insurance Proceeds with
respect to such Mortgage Loan) respecting which any such advance was made
and (B) for unpaid Master Servicing Fees or Servicing Fees as provided in
Section 3.11 hereof;
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(v) to pay to the purchaser, with respect to each Mortgage Loan
or property acquired in respect thereof that has been purchased pursuant
to Section 2.02, 2.03 or 3.11, all amounts received thereon after the
date of such purchase;
(vi) to make any payments required to be made pursuant to
Section 2.07(g);
(vii) to withdraw any amount deposited in such Collection
Account and not required to be deposited therein;
(viii) on the Cash Remittance Date, to withdraw an amount equal
to the portion of (a) with respect to the Group I Mortgage Loans, Group
II Mortgage Loans, Group III Mortgage Loans and Group IV Mortgage Loans,
the Available Distribution Amount and (b) with respect to the Group V
Mortgage Loans, the Interest Remittance Amount and Principal Remittance
Amount, in each case applicable to the Mortgage Loans serviced by such
Servicer, other than WMMSC, for such Distribution Date and remit such
amount to the Master Servicer who will remit the aggregate of such
amounts to the Trust Administrator for deposit in the Certificate
Account, or in the case of WMMSC, an amount equal to the portion of (a)
with respect to the Group I Mortgage Loans, Group II Mortgage Loans,
Group III Mortgage Loans and Group IV Mortgage Loans, the Available
Distribution Amount and (b) with respect to the Group V Mortgage Loans,
the Interest Remittance Amount and Principal Remittance Amount, in each
case applicable to the Mortgage Loans serviced by WMMSC who will remit
the aggregate of such amounts to the Trust Administrator for deposit in
the Certificate Account
(ix) with respect to each Mortgage Loan covered by the RMIC PMI
Policy or any other lender paid Mortgage Guarantee Insurance Policy, to
effect timely payment of the RMIC PMI Fee or the related premiums on such
other Mortgage Guarantee Insurance Policy, as applicable, pursuant to
Section 3.09(c); provided, however, that such premiums have been received
on such Mortgage Loans; and
(x) to clear and terminate such Collection Account upon
termination of this Agreement pursuant to Section 11.01 hereof.
The Master Servicer and each Servicer shall keep and maintain
separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the
purpose of justifying any withdrawal from the related Collection Account
pursuant to such subclauses (i), (ii), (iv), (v) and (ix). Prior to making any
withdrawal from a Collection Account pursuant to subclause (iii) of a
Nonrecoverable Advance, the Master Servicer or the related Servicer shall
deliver to the Trust Administrator a certificate of a Servicing Officer
indicating the amount of any previous Advance or Servicing Advance determined
by the Master Servicer or such Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans(s), and their respective portions of
such Nonrecoverable Advance.
(b) The Trust Administrator shall withdraw funds from the Certificate
Account for distributions to Certificateholders, in the manner specified in
this Agreement (and to withhold from the amounts so withdrawn, the amount of
any taxes that it is authorized to withhold
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pursuant to Section 2.07). In addition, the Trust Administrator may from time
to time make withdrawals from the Certificate Account for the following
purposes:
(i) to pay to itself any investment income earned for the
related Distribution Date;
(ii) [reserved];
(iii) to withdraw and return to the Master Servicer or the
applicable Servicer for deposit to the applicable Collection Account any
amount deposited in the Certificate Account and not required to be
deposited therein; and
(iv) to clear and terminate the Certificate Account upon
termination of the Agreement pursuant to Section 11.01 hereof.
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment
Insurance and Mortgage Guaranty Insurance Policy; Claims;
Restoration of Mortgaged Property.
(a) The Master Servicer and each Servicer shall cause to be maintained
for each Mortgage Loan hazard insurance such that all buildings upon the
Mortgaged Property are insured by a generally acceptable insurer rated either:
"V" or better in the current Best's Key Rating Guide ("Best's") or acceptable
to FNMA or FHLMC against loss by fire, hazards of extended coverage and such
other hazards as are customary in the area where the Mortgaged Property is
located, in an amount which is at least equal to the lesser of (i) the
replacement value of the improvements securing such Mortgage Loan and (ii) the
greater of (A) the outstanding principal balance of the Mortgage Loan and (B)
an amount such that the proceeds of such policy shall be sufficient to prevent
the Mortgagor and/or the mortgagee from becoming a co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), the Master Servicer or the related
Servicer shall cause a flood insurance policy to be maintained with respect to
such Mortgage Loan. Such policy shall meet the requirements of the current
guidelines of the Federal Insurance Administration and be in an amount
representing coverage equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid principal balance of the mortgage if
replacement cost coverage is not available for the type of building insured)
and (ii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended.
If a Mortgage is secured by a unit in a condominium project, the
Master Servicer or the related Servicer shall verify that the coverage
required of the owner's association, including hazard, flood, liability, and
fidelity coverage, is being maintained in accordance with the requirements of
the Master Servicer or the related Servicer for mortgage loans that it
services on its own account.
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The Master Servicer and each Servicer shall cause to be maintained
on each Mortgaged Property such other additional special hazard insurance as
may be required pursuant to such applicable laws and regulations as shall at
any time be in force and as shall require such additional insurance, or
pursuant to the requirements of any Mortgage Guaranty Insurance Policy
insurer, or as may be required to conform with Accepted Servicing Practices to
the extent permitted by the Mortgage Note, the Mortgage or applicable law
provided that the Master Servicer or the related Servicer shall not be
required to bear the cost of such insurance.
All policies required hereunder shall name the Master Servicer or
the related Servicer as loss payee and shall be endorsed with standard or
union mortgagee clauses, without contribution, which shall provide for prior
written notice of any cancellation, reduction in amount or material change in
coverage.
Neither the Master Servicer nor any Servicer shall interfere with
the Mortgagor's freedom of choice at the origination of such Mortgage Loan in
selecting either his insurance carrier or agent, provided, however, that the
Master Servicer or such Servicer shall not accept any such insurance policies
from insurance companies unless such companies are rated: B:III or better in
Best's or acceptable to FNMA or FHLMC and are licensed to do business in the
jurisdiction in which the Mortgaged Property is located. The Master Servicer
or the related Servicer shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 3.05, any amounts collected by the Master
Servicer or a Servicer under any such policies (other than amounts to be
deposited in the related Escrow Account and applied to the restoration or
repair of the related Mortgaged Property, or property acquired in liquidation
of the Mortgage Loan, or to be released to the Mortgagor, in accordance with
such Servicer's normal servicing procedures) shall be deposited in the related
Collection Account (subject to withdrawal pursuant to Section 3.08(a)).
Any cost incurred by the Master Servicer or a Servicer in
maintaining any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the Trust
Administrator for their benefit, be added to the principal balance of the
Mortgage Loan, notwithstanding that the terms of the Mortgage Loan so permit.
Such costs shall constitute a Servicing Advance and will be reimbursable to
the Master Servicer or the related 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 the Master Servicer or a Servicer shall obtain
and maintain a blanket policy insuring against losses arising from fire and
hazards covered under extended coverage on all of the related Mortgage Loans,
then, to the extent such policy provides coverage in an amount equal to the
amount required pursuant to Section 3.09(a) and otherwise complies with all
other requirements of Section 3.09(a), it shall conclusively be deemed to have
satisfied its obligations as set forth in Section 3.09(a). Any amounts
collected by the Master Servicer or a Servicer under any such policy relating
to a Mortgage Loan shall be deposited in the related Collection Account
subject to withdrawal pursuant to Section 3.08(a). Such policy may contain
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a deductible clause, in which case, in the event that there shall not have
been maintained on the related Mortgaged Property a policy complying with
Section 3.09(a), and there shall have been a loss which would have been
covered by such policy, the Master Servicer or the related Servicer shall
deposit in the related Collection Account at the time of such loss the amount
not otherwise payable under the blanket policy because of such deductible
clause, such amount to be deposited from such Servicer's funds, without
reimbursement therefor. Upon request of the Trust Administrator, the Master
Servicer or a Servicer shall cause to be delivered to the Trust Administrator
a certified true copy of such policy and a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without 30 days' prior written notice to the Trust Administrator. In
connection with its activities as Servicer of the related Mortgage Loans, the
Master Servicer or such Servicer agrees to present, on behalf of itself, the
Depositor, and the Trust Administrator for the benefit of the
Certificateholders, claims under any such blanket policy.
(c) With respect to each Mortgage Loan with a Loan-to-Value Ratio in
excess of 80% which the related Seller represented to be covered by a Mortgage
Guaranty Insurance Policy as of the Cut-off Date, the Master Servicer or the
related Servicer shall, without any cost to the Depositor or Trust
Administrator, maintain or cause the Mortgagor to maintain in full force and
effect a Mortgage Guaranty Insurance Policy insuring that portion of the
Mortgage Loan in excess of 75% of value, and shall pay or shall cause the
Mortgagor to pay, the premium thereon on a timely basis, until the
loan-to-value ratio of such Mortgage Loan is reduced to 80%, based on either
(i) a current appraisal of the Mortgaged Property or (ii) the appraisal of the
Mortgaged Property obtained at the time the Mortgage Loan was originated. In
the event that such Mortgage Guaranty Insurance Policy shall be terminated,
the Master Servicer or the related Servicer shall obtain from another
Qualified Insurer a comparable replacement policy, with a total coverage equal
to the remaining coverage of such terminated Mortgage Guaranty Insurance
Policy. If the insurer shall cease to be a Qualified Insurer, the Master
Servicer or the related Servicer shall determine whether recoveries under the
Mortgage Guaranty Insurance Policy are jeopardized for reasons related to the
financial condition of such insurer, it being understood that the Master
Servicer or such Servicer shall in no event have any responsibility or
liability for any failure to recover under the Mortgage Guaranty Insurance
Policy for such reason. If the Master Servicer or the related Servicer
determines that recoveries are so jeopardized, it shall notify the Mortgagor,
if required, and obtain from another Qualified Insurer a replacement insurance
policy. The Master Servicer or the related Servicer shall not take any action
which would result in noncoverage under any applicable Mortgage Guaranty
Insurance Policy of any loss which, but for the actions of the Master Servicer
or 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, the Master Servicer and each Servicer shall promptly
notify the insurer under the related Mortgage Guaranty Insurance Policy, if
any, of such assumption or substitution of liability in accordance with the
terms of such Mortgage Guaranty Insurance Policy and shall take all actions
which may be required by such insurer as a condition to the continuation of
coverage under such Mortgage Guaranty Insurance Policy provided that such
required actions are in compliance with all applicable law. If such Mortgage
Guaranty Insurance Policy is terminated as a result of such assumption or
substitution of liability, the Master Servicer or the related Servicer shall
obtain a replacement Mortgage Guaranty Insurance Policy as provided above;
provided that under
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applicable law and the terms of the related Mortgage Note and Mortgage the
cost of such policy may be charged to the successor Mortgagor.
With respect to the RMIC PMI Mortgage Loans, the RMIC Policy shall
be maintained by the Trustee for the life of such RMIC PMI Mortgage Loans,
unless otherwise prohibited by law. The Master Servicer and the applicable
Servicer shall submit all claims required to be made under the RMIC Policy in
a timely fashion and shall otherwise comply with the terms of the RMIC Policy.
The Master Servicer and each Servicer shall deposit all amounts received under
the RMIC Policy into the Collection Account. The RMIC PMI Fee shall be paid to
RMIC by the Master Servicer or the related Servicer from amounts in the
related Collection Account in accordance with Section 3.08(a)(ix).
With respect to each Mortgage Loan covered by a lender paid Mortgage
Guaranty Insurance Policy, the Master Servicer and the applicable Servicer
agrees to effect timely payment of the premiums on such Mortgage Guaranty
Insurance Policy from amounts on deposit in the Collection Account with
respect to such Mortgage Loan. If amounts on deposit in the Collection Account
with respect to such Mortgage Loan are not sufficient to pay the premiums on
such Mortgage Guaranty Insurance Policy, the Master Servicer and the
applicable Servicer agrees to effect timely payment of such premiums, and such
costs shall be recoverable by the Master Servicer or the applicable Servicer
from the related Liquidation Proceeds or otherwise as a Servicing Advance
pursuant to Section 3.08(a). With respect to each Mortgage Loan covered by a
Mortgage Guaranty Insurance Policy that is not lender paid, the Master
Servicer and the applicable Servicer agrees to effect timely payment of the
premiums on such Mortgage Guaranty Insurance Policy, and such costs not
otherwise recoverable from the Mortgagor shall be recoverable by the Master
Servicer or such Servicer from the related Liquidation Proceeds or otherwise
as a Servicing Advance pursuant to Section 3.08(a).
(d) In connection with its activities as servicer, the Master Servicer
and each Servicer agrees to prepare and present, on behalf of itself, the
Depositor, the Trustee, the Trust Administrator and the Certificateholders,
claims to the insurer under any Mortgage Guaranty Insurance Policy in a timely
fashion in accordance with the terms of such Mortgage Guaranty Insurance
Policy and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Mortgage Guaranty Insurance Policy
respecting defaulted Mortgage Loans. Pursuant to Section 3.05, any amounts
collected by the Master Servicer or a Servicer under any Mortgage Guaranty
Insurance Policy shall be deposited in the related Collection Account, subject
to withdrawal pursuant to Section 3.08.
(e) Neither the Master Servicer nor a Servicer need obtain the approval
of the Trustee or the Trust Administrator prior to releasing any Insurance
Proceeds to the Mortgagor to be applied to the restoration or repair of the
Mortgaged Property if such release is in accordance with Accepted Servicing
Practices. At a minimum, the Master Servicer and each Servicer shall comply
with the following conditions in connection with any such release of Insurance
Proceeds:
(i) the Master Servicer or such Servicer shall receive
satisfactory independent verification of completion of repairs and
issuance of any required approvals with respect thereto;
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(ii) the Master Servicer or such Servicer shall take all steps
necessary to preserve the priority of the lien of the Mortgage,
including, but not limited to requiring waivers with respect to
mechanics' and materialmen's liens; and
(iii) pending repairs or restoration, the Master Servicer or
such Servicer shall place the Insurance Proceeds in the related Escrow
Account.
(f) If the Trust Administrator is named as an additional loss payee,
the Master Servicer or the related Servicer is hereby empowered to endorse any
loss draft issued in respect of such a claim in the name of the Trustee or the
Trust Administrator.
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements.
(a) The Master Servicer and each Servicer shall use its best efforts to
enforce any "due-on-sale" provision contained in any related Mortgage or
Mortgage Note and to deny assumption by the person to whom the Mortgaged
Property has been or is about to be sold whether by absolute conveyance or by
contract of sale, and whether or not the Mortgagor remains liable on the
Mortgage and the Mortgage Note. When the Mortgaged Property has been conveyed
by the Mortgagor, the Master Servicer or the related Servicer shall, to the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Master Servicer or such Servicer shall
not exercise such rights if prohibited by law from doing so or if the exercise
of such rights would impair or threaten to impair any recovery under the
related Mortgage Guaranty Insurance Policy or the Limited Purpose Surety Bond,
if any.
(b) If the Master Servicer or a Servicer reasonably believes it is
unable under applicable law to enforce such "due-on-sale" clause, the Master
Servicer or such Servicer shall enter into (i) an assumption and modification
agreement with the person to whom such property has been conveyed, pursuant to
which such person becomes liable under the Mortgage Note and the original
Mortgagor remains liable thereon or (ii) in the event the Master Servicer or
such Servicer is unable under applicable law to require that the original
Mortgagor remain liable under the Mortgage Note, a substitution of liability
agreement with the purchaser of the Mortgaged Property pursuant to which the
original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Notwithstanding the foregoing, the Master Servicer or a
Servicer shall not be deemed to be in default under this Section by reason of
any transfer or assumption which the Master Servicer or such Servicer
reasonably believes it is restricted by law from preventing, for any reason
whatsoever. In connection with any such assumption, no material term of the
Mortgage Note, including without limitation, the Mortgage Rate borne by the
related Mortgage Note, the term of the Mortgage Loan or the outstanding
principal amount of the Mortgage Loan shall be changed.
(c) To the extent that any Mortgage Loan is assumable, the Master
Servicer or the related Servicer shall inquire diligently into the
creditworthiness of the proposed transferee, and shall use the underwriting
criteria for approving the credit of the proposed transferee which are used by
FNMA with respect to underwriting mortgage loans of the same type as the
Mortgage Loans. If the credit of the proposed transferee does not meet such
underwriting criteria, the Master Servicer or the related Servicer diligently
shall, to the extent permitted by the
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Mortgage or the Mortgage Note and by applicable law, accelerate the maturity
of the Mortgage Loan.
(d) Subject to the Master Servicer's and each Servicer's duty to
enforce any due-on-sale clause to the extent set forth in this Section 3.10,
in any case in which a Mortgaged Property has been conveyed to a Person by a
Mortgagor, and such Person is to enter into an assumption agreement or
modification agreement or supplement to the Mortgage Note or Mortgage that
requires the signature of the Trustee, or if an instrument of release signed
by the Trustee is required releasing the Mortgagor from liability on the
Mortgage Loan, the Master Servicer or such Servicer shall prepare and deliver
or cause to be prepared and delivered to the Trustee for signature and shall
direct, in writing, the Trustee to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed and such modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
as are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. In connection with
any such assumption, no material term of the Mortgage Note may be changed.
Together with each such substitution, assumption or other agreement or
instrument delivered to the Trustee for execution by it, the Master Servicer
or the related Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer or the related Servicer shall
notify the Trustee that any such substitution or assumption agreement has been
completed by forwarding to the Trustee the original of such substitution or
assumption agreement, which in the case of the original shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Master Servicer or a
Servicer for entering into an assumption or substitution of liability
agreement will be retained by the Master Servicer or such Servicer as
additional servicing compensation.
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
(a) The Master Servicer and each Servicer shall use reasonable efforts
to foreclose upon or otherwise comparably convert the ownership of properties
securing such of the related Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for
collection of delinquent payments. In connection with such foreclosure or
other conversion, the Master Servicer and each Servicer shall take such action
as (i) the Master Servicer or such Servicer would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (ii) shall be consistent with Accepted Servicing Practices,
(iii) the Master Servicer or such Servicer shall determine consistently with
Accepted Servicing Practices to be in the best interest of the Trustee and
Certificateholders, and (iv) is consistent with the requirements of the
insurer under any Required Insurance Policy; provided, however, that the
Master Servicer or such Servicer shall not be required to expend its own funds
in connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the related Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds. Any
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funds expended by the Master Servicer or any Servicer pursuant to this Section
3.11(a) shall be reimbursable in full pursuant to Section 3.08(a)(iii). The
Master Servicer or the related Servicer shall be responsible for all other
costs and expenses incurred by it in any such proceedings; provided, however,
that it shall be entitled to reimbursement thereof from the Liquidation
Proceeds with respect to the related Mortgaged Property or otherwise as a
Servicing Advance in accordance with Section 3.08(a).
Notwithstanding anything to the contrary contained in this
Agreement, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Master Servicer or the related Servicer has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Trust Administrator
otherwise requests, an environmental inspection or review of such Mortgaged
Property conducted by a qualified inspector shall be arranged for by the
Master Servicer or such Servicer. Upon completion of the inspection, the
Master Servicer or the related Servicer shall promptly provide the Trust
Administrator with a written report of environmental inspection.
In the event the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
the Master Servicer or the related Servicer shall not proceed with foreclosure
or acceptance of a deed in lieu of foreclosure if the estimated costs of the
environmental clean up, as estimated in the environmental inspection report,
together with the Servicing Advances and Advances made by the Master Servicer
or such Servicer and the estimated costs of foreclosure or acceptance of a
deed in lieu of foreclosure exceeds the estimated value of the Mortgaged
Property. If however, the aggregate of such clean up and foreclosure costs,
Advances and Servicing Advances are less than or equal to the estimated value
of the Mortgaged Property, then the Master Servicer or the related Servicer
may, in its reasonable judgment and in accordance with Accepted Servicing
Practices, choose to proceed with foreclosure or acceptance of a deed in lieu
of foreclosure and the Master Servicer or such Servicer shall be reimbursed
for all reasonable costs associated with such foreclosure or acceptance of a
deed in lieu of foreclosure and any related environmental clean up costs, as
applicable, from the related Liquidation Proceeds, or if the Liquidation
Proceeds are insufficient to reimburse fully the Master Servicer or such
Servicer, the Master Servicer or such Servicer shall be entitled to be
reimbursed from amounts in the related Collection Account pursuant to Section
3.08(a) hereof. In the event the Master Servicer or the related Servicer does
not proceed with foreclosure or acceptance of a deed in lieu of foreclosure
pursuant to the first sentence of this paragraph, the Master Servicer or such
Servicer shall be reimbursed for all Advances and Servicing Advances made with
respect to the related Mortgaged Property from the related Collection Account
pursuant to Section 3.08(a) hereof, and the Master Servicer or such Servicer
shall have no further obligation to service such Mortgage Loan under the
provisions of this Agreement.
(b) With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trust Administrator for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trust Administrator's name shall be placed on the title to such REO Property
solely as the Trust Administrator hereunder and not in its individual
capacity. The Master Servicer or the related Servicer shall ensure that the
title to such REO Property references this Agreement and the Trust
Administrator's capacity hereunder. Pursuant
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to its efforts to sell such REO Property, the Master Servicer or the related
Servicer shall in accordance with Accepted Servicing Practices manage,
conserve, protect and operate each REO Property for the purpose of its prompt
disposition and sale. The Master Servicer or the related Servicer, either
itself or through an agent selected by the Master Servicer or such Servicer,
shall manage, conserve, protect and operate the REO Property in the same
manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. Upon request, the Master
Servicer or the related Servicer shall furnish to the Trust Administrator on
or before each Distribution Date a statement with respect to any REO Property
covering the operation of such REO Property for the previous calendar month
and the Master Servicer's or such Servicer's efforts in connection with the
sale of such REO Property and any rental of such REO Property incidental to
the sale thereof for the previous calendar month. That statement shall be
accompanied by such other information as the Trust Administrator shall
reasonably request and which is necessary to enable the Trust Administrator to
comply with the reporting requirements of the REMIC Provisions. The net
monthly rental income, if any, from such REO Property shall be deposited in
the related Collection Account no later than the close of business on each
Determination Date. The Master Servicer or the related Servicer shall perform
the tax reporting and withholding required by Sections 1445 and 6050J of the
Code with respect to foreclosures and abandonments, the tax reporting required
by Section 6050H of the Code with respect to the receipt of mortgage interest
from individuals and any tax reporting required by Section 6050P of the Code
with respect to the cancellation of indebtedness by certain financial
entities, by preparing such tax and information returns as may be required, in
the form required, and delivering the same to the Trust Administrator for
filing.
To the extent consistent with Accepted Servicing Practices, the
Master Servicer or the related Servicer shall also maintain on each REO
Property fire and hazard insurance with extended coverage in an amount which
is equal to the outstanding principal balance of the related Mortgage Loan (as
reduced by any amount applied as a reduction of principal at the time of
acquisition of the REO Property), liability insurance and, to the extent
required and available under the Flood Disaster Protection Act of 1973, as
amended, flood insurance in the amount required above.
(c) In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer or the related Servicer shall dispose of
such Mortgaged Property prior to three years after the end of the calendar
year of its acquisition by the Trust Fund unless (i) the Trustee and the Trust
Administrator shall have been supplied with an Opinion of Counsel to the
effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to such three-year period will not result in the imposition of
taxes on "prohibited transactions" of any REMIC hereunder as defined in
section 860F of the Code or cause any REMIC hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the
Trust Fund may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) or (ii) the Master Servicer
or 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
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Agreement, no Mortgaged Property acquired by the Trust Fund shall be rented
(or allowed to continue to be rented) or otherwise used for the production of
income by or on behalf of the Trust Fund in such a manner or pursuant to any
terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of section 860G(a)(8) of the Code or
(ii) subject any REMIC hereunder to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the Master Servicer or the
related Servicer has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of
a deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer or the related Servicer will cause
compliance with the provisions of Treasury Regulation Section 1.1445-2(d)(3)
(or any successor thereto) necessary to assure that no withholding tax
obligation arises with respect to the proceeds of such foreclosure except to
the extent, if any, that proceeds of such foreclosure are required to be
remitted to the obligors on such Mortgage Loan.
(d) The decision of the Master Servicer or a Servicer to foreclose on a
defaulted Mortgage Loan shall be subject to a determination by the Master
Servicer or such Servicer that the proceeds of such foreclosure would exceed
the costs and expenses of bringing such a proceeding. The income earned from
the management of any REO Properties, net of reimbursement to the Master
Servicer or such Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of applicable accrued
and unpaid Master Servicing Fees or Servicing Fees, and unreimbursed Advances
and Servicing Advances, shall be applied to the payment of principal of and
interest on the related defaulted Mortgage Loans (with interest accruing as
though such Mortgage Loans were still current) and all such income shall be
deemed, for all purposes in this Agreement, to be payments on account of
principal and interest on the related Mortgage Notes and shall be deposited
into the related Collection Account. To the extent the net income received
during any calendar month is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Rate on the
related Mortgage Loan for such calendar month, such excess shall be considered
to be a partial prepayment of principal of the related Mortgage Loan.
(e) The proceeds from any liquidation of a Mortgage Loan, as well as
any income from an REO Property, will be applied in the following order of
priority: first, to reimburse the Master Servicer or the related Servicer for
any related unreimbursed Servicing Advances and Servicing Fees; second, to
reimburse the Master Servicer or such Servicer for any unreimbursed Advances;
third, to reimburse the related Collection Account for any Nonrecoverable
Advances (or portions thereof) that were previously withdrawn by the Master
Servicer or such Servicer pursuant to Section 3.08(a)(iii) that related to
such Mortgage Loan; fourth, to accrued and unpaid interest (to the extent no
Advance has been made for such amount or any such Advance has been reimbursed)
on the Mortgage Loan or related REO Property, at the per annum rate equal to
the related Mortgage Rate reduced by the related Master Servicing Fee Rate or
Servicing Fee Rate, the RMIC PMI Rate, if applicable, and any primary mortgage
guaranty insurance fee rate, if applicable, to the Due Date occurring in the
month in which such amounts are required to be
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distributed; and fifth, as a recovery of principal of the Mortgage Loan.
Excess Proceeds, if any, from the liquidation of a Liquidated Mortgage Loan
will be retained by the Master Servicer or the related Servicer as additional
servicing compensation pursuant to Section 3.14.
(f) The Master Servicer and each Servicer of the Mortgage Loans may
(but is not obligated to) enter into a special servicing agreement with an
unaffiliated holder of a 100% Percentage Interest of the most junior class of
Subordinate Certificates, subject to each Rating Agency's acknowledgment that
the Ratings of the Certificates in effect immediately prior to the entering
into such agreement would not be qualified, downgraded or withdrawn and the
Certificates would not be placed on credit review status (except for possible
upgrading) as a result of such agreement. Any such agreement may contain
provisions whereby such Holder may (i) instruct the Master Servicer or the
related Servicer to commence or delay foreclosure proceedings with respect to
delinquent Mortgage Loans and will contain provisions for the deposit of cash
with the Master Servicer or such Servicer by the holder that would be
available for distribution to Certificateholders if Liquidation Proceeds are
less than they otherwise may have been had the Master Servicer or such
Servicer acted in accordance with its normal procedures, (ii) purchase
delinquent Mortgage Loans from the Trust Fund immediately prior to the
commencement of foreclosure proceedings at a price equal to the aggregate
outstanding Principal Balance of such Mortgage Loans plus accrued interest
thereon at the applicable Mortgage Rate through the last day of the month in
which such Mortgage Loan is purchased, and/or (iii) assume all of the
servicing rights and obligations with respect to delinquent Mortgage Loans so
long as such Holder (A) meets the requirements for a Subservicer set forth in
Section 3.02(a), (B) will service such Mortgage Loans in accordance with this
Agreement and (C) the Master Servicer or the related 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).
(h) In addition to the foregoing, the Trust Administrator, as assignee
of the Additional Collateral Servicing Agreement, shall enforce the
obligations of the Additional Collateral Servicer to use its best reasonable
efforts to realize upon any Additional Collateral for such of the Additional
Collateral Mortgage Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.11; provided that pursuant to the Additional Collateral
Servicing Agreement, the Additional Collateral Servicer shall not, on behalf
of the Trustee, obtain title to any such Additional Collateral as a result of
or in lieu of the disposition thereof or otherwise; and provided further that
(i) the Additional Collateral Servicer, pursuant to the Additional Collateral
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Servicing Agreement, shall not proceed with respect to such Additional
Collateral in any manner that would impair the ability to recover against the
related Mortgaged Property, and (ii) the Master Servicer or the related
Servicer, as applicable, shall proceed with any acquisition of REO Property in
a manner that preserves the ability to apply the proceeds of such Additional
Collateral against amounts owed under the defaulted Mortgage Loan. Any
proceeds realized from such Additional Collateral (other than amounts to be
released to the Mortgagor or the related guarantor in accordance with
procedures that the Master Servicer or the related Servicer, as applicable,
would follow in servicing loans held for its own account, subject to the terms
and conditions of the related Mortgage and Mortgage Note and to the terms and
conditions of any security agreement, guarantee agreement, mortgage or other
agreement governing the disposition of the proceeds of such Additional
Collateral) shall be deposited in the Certificate Account, subject to
withdrawal pursuant to Section 3.08; provided, that such proceeds shall not be
so deposited if the Required Surety Payment in respect of such Additional
Collateral Mortgage Loan has been deposited in the Collection Account (except
to the extent of any such proceeds taken into account in calculating the
amount of the Required Surety Payment). Any other payment received by the
related Seller in respect of such Additional Collateral shall be deposited in
the Certificate Account subject to withdrawal pursuant to Section 3.08.
SECTION 3.12 Trustee and Trust Administrator to Cooperate; Release of
Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer or a Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer or such
Servicer will immediately notify the Trustee, or the Custodian on its behalf,
by delivering, or causing to be delivered a "Request for Release"
substantially in the form of Exhibit K. Upon receipt of such request, the
Trustee, or the Custodian on its behalf, shall within three Business Days
release the related Mortgage File to the Master Servicer or the related
Servicer, and the Trustee shall within three Business Days of the Master
Servicer's or such Servicer's direction execute and deliver to the Master
Servicer or such Servicer the request for reconveyance, deed of reconveyance
or release or satisfaction of mortgage or such instrument releasing the lien
of the Mortgage in each case provided by the Master Servicer or such Servicer,
together with the Mortgage Note with written evidence of cancellation thereon.
Expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor. From time to time
and as shall be appropriate for the servicing or foreclosure of any Mortgage
Loan, including for such purpose, collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy, or for the
purposes of effecting a partial release of any Mortgaged Property from the
lien of the Mortgage or the making of any corrections to the Mortgage Note or
the Mortgage or any of the other documents included in the Mortgage File, the
Trustee, or the Custodian on its behalf within three Business Days of delivery
to the Trustee, or the Custodian on its behalf of a Request for Release in the
form of Exhibit K signed by a Servicing Officer, release the Mortgage File to
the Master Servicer or the related Servicer. Subject to the further
limitations set forth below, the Master Servicer or the related Servicer shall
cause the Mortgage File or documents so released to be returned to the
Trustee, or the Custodian on its behalf, when the need therefor by the Master
Servicer or such Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the related Collection
Account, in which case the Master
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Servicer or such Servicer shall deliver to the Trustee, or the Custodian on
its behalf, a Request for Release in the form of Exhibit K, signed by a
Servicing Officer.
If the Master Servicer or a Servicer at any time seeks to initiate a
foreclosure proceeding in respect of any Mortgaged Property as authorized by
this Agreement, the Master Servicer or such Servicer shall deliver or cause to
be delivered to the Trustee, for signature, as appropriate, any court
pleadings, requests for trustee's sale or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
SECTION 3.13 Documents, Records and Funds in Possession of the Master
Servicer or a Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer and each Servicer shall transmit to the Trustee, or the Custodian on
its behalf, as required by this Agreement all documents and instruments in
respect of a Mortgage Loan coming into the possession of the Master Servicer
or the related Servicer from time to time required to be delivered to the
Trustee, or the Custodian on its behalf, pursuant to the terms hereof and
shall account fully to the Trust Administrator for any funds received by the
Master Servicer or such Servicer or which otherwise are collected by the
Master Servicer or such Servicer as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or
held by, or under the control of, the Master Servicer or a Servicer in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including but not limited to, any funds
on deposit in a Collection Account, shall be held by the Master Servicer or
the related Servicer for and on behalf of the Trustee or the Trust
Administrator and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer and each Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the related
Collection Account, Certificate Account or any related Escrow Account, or any
funds that otherwise are or may become due or payable to the Trustee or the
Trust Administrator for the benefit of the Certificateholders, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Mortgage File or any funds collected on, or in connection
with, a Mortgage Loan, except, however, that the Master Servicer or such
Servicer shall be entitled to set off against and deduct from any such funds
any amounts that are properly due and payable to the Master Servicer or such
Servicer under this Agreement.
SECTION 3.14 Master Servicing Fee and Servicing Fee.
(a) As compensation for its services hereunder, the Master Servicer and
each Servicer shall be entitled to withdraw from the applicable Collection
Account or to retain from interest payments on the related Mortgage Loans
(which have been remitted to the Master Servicer by the applicable Servicer,
other than WMMSC, in the case of the Master Servicer), the amount of the
Master Servicing Fee or its Servicing Fee, respectively, for each Mortgage
Loan serviced by it, less any amounts in respect of the Master Servicing Fee
or its Servicing Fee, as applicable,
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payable by the Master Servicer or such Servicer pursuant to Section
3.05(c)(vi). The Master Servicing Fee and the Servicing Fee are limited to,
and payable solely from, the interest portion of such Scheduled Payments
collected by the Master Servicer or the related Servicer or as otherwise
provided in Section 3.08(a). In connection with the servicing of any Special
Serviced Mortgage Loan, the Special Servicer shall receive the Servicing Fee
for such Special Serviced Mortgage Loan as its compensation and Ancillary
Income with respect to Special Serviced Mortgage Loans.
(b) Additional servicing compensation in the form of Ancillary Income
shall be retained by the Master Servicer or the related Servicer. The Master
Servicer and each Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including the
payment of any expenses incurred in connection with any Subservicing Agreement
entered into pursuant to Section 3.02 and the payment of any premiums for
insurance required pursuant to Section 3.18) and shall not be entitled to
reimbursement thereof except as specifically provided for in this Agreement.
SECTION 3.15 Access to Certain Documentation.
The Master Servicer and each Servicer shall provide to the OTS and
the FDIC and to comparable regulatory authorities supervising Holders of
Subordinate Certificates and the examiners and supervisory agents of the OTS,
the FDIC and such other authorities, access to the documentation regarding the
related Mortgage Loans required by applicable regulations of the OTS and the
FDIC. Such access shall be afforded without charge, but only upon reasonable
and prior written request and during normal business hours at the offices
designated by the Master Servicer or such Servicer. Nothing in this Section
shall limit the obligation of the Master Servicer or any Servicer to observe
any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Master Servicer or such Servicer to provide
access as provided in this Section as a result of such obligation shall not
constitute a breach of this Section. Nothing in this Section 3.15 shall
require the Master Servicer or any Servicer to collect, create, collate or
otherwise generate any information that it does not generate in its usual
course of business.
SECTION 3.16 Annual Statement as to Compliance.
The Master Servicer and each Servicer shall deliver to the
Depositor, the Rating Agencies, the Trustee and the Trust Administrator, and
each Servicer shall deliver to the Master Servicer, on or before 120 days
after the end of the Master Servicer's and 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 the Master Servicer
or such Servicer during the preceding calendar year and of the performance of
the Master Servicer or such Servicer under this Agreement has been made under
such officer's supervision, and (ii) to the best of such officer's knowledge,
based on such review, the Master Servicer or such Servicer has fulfilled all
its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and the action
being taken by the Master Servicer or such Servicer to cure such default.
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SECTION 3.17 Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
On or before 120 days after the end of the Master Servicer's and
each Servicer's fiscal year, commencing in its 2003 fiscal year, the Master
Servicer and each Servicer at its expense shall cause a nationally or
regionally recognized firm of independent public accountants (who may also
render other services to the Master Servicer, such Servicer, any Seller or any
affiliate thereof) which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Trust Administrator, and the
Depositor and each Servicer, other than WMMSC, shall similarly furnish such a
statement to the Master Servicer to the effect that (i) with respect to the
Master Servicer and each Servicer other than WMMSC, such firm has examined
certain documents and records relating to the servicing of mortgage loans
which the Master Servicer or such Servicer is servicing, including the related
Mortgage Loans, and that, on the basis of such examination, conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs, nothing has come to their
attention which would indicate that such servicing has not been conducted in
compliance with Accepted Servicing Practices, except for (a) such exceptions
as such firm shall believe to be immaterial, and (b) such other exceptions as
shall be set forth in such statement and (ii) with respect to WMMSC as
servicer of the WMMSC Serviced Mortgage Loans, in connection with the firm's
examination of the financial statements as of the previous December 31 of
WMMSC's parent corporation (which shall include a limited examination of
WMMSC's financial statements), nothing came to their attention that indicated
that WMMSC was not in compliance with the terms of this Agreement, except for
(a) such exceptions as such firm believes to be immaterial, and (b) such other
exceptions as are set forth in such statement. In rendering such statement,
such firm may rely, as to matters relating to direct servicing of mortgage
loans by 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 Trust
Administrator to any Certificateholder upon request at the Master Servicer's
or the related Servicer's expense, provided such statement is delivered by the
Master Servicer or such Servicer to the Trust Administrator.
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Master Servicer and each Servicer shall maintain with
responsible companies, at its own expense, a blanket Fidelity Bond and an
Errors and Omissions Insurance Policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the related Mortgage
Loans (in the case of a Servicer, "Servicer Employees," and in the case of the
Master Servicer, "Master Servicing Employees"). Any such Fidelity Bond and
Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Master Servicer or the
related Servicer against losses, including forgery, theft,
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embezzlement, fraud, errors and omissions and negligent acts of the Master
Servicer Employees, in the case of the Master Servicer, or such Servicer
Employees, in the case of a Servicer. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Master Servicer
and each Servicer against losses in connection with the release or
satisfaction of a related Mortgage Loan without having obtained payment in
full of the indebtedness secured thereby. No provision of this Section 3.18
requiring such Fidelity Bond and Errors and Omissions Insurance Policy shall
diminish or relieve the Master Servicer or a Servicer from its duties and
obligations as set forth in this Agreement. The minimum coverage under any
such bond and insurance policy shall be at least equal to the corresponding
amounts required by FNMA. Upon the request of the Trust Administrator, the
Master Servicer or the related Servicer shall cause to be delivered to the
Trust Administrator a certificate of insurance of the insurer and the surety
including a statement from the surety and the insurer that such fidelity bond
and insurance policy shall in no event be terminated or materially modified
without 30 days' prior written notice to the Trust Administrator.
SECTION 3.19 Special Serviced Mortgage Loans.
If directed by the Special Servicer and solely at the Special
Servicer's option, the Master Servicer or a Servicer other than WMMSC (a
"Transferring Servicer") shall transfer the servicing of any Mortgage Loan
serviced by the Transferring Servicer 91 days or more delinquent to the
Special Servicer. The Special Servicer shall thereupon assume all of the
rights and obligations of the Transferring Servicer hereunder arising
thereafter and the Transferring Servicer shall have no further rights or
obligations hereunder with respect to such Mortgage Loan (except that the
Special Servicer shall not be (i) liable for losses of the Transferring
Servicer pursuant to Section 3.09 hereof or for any acts or omissions of the
Transferring Servicer hereunder prior to the servicing transfer date, (ii)
obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder including, but not limited to, repurchases or substitutions of
Mortgage Loans pursuant to Section 2.02 or 2.03 hereof or (iii) deemed to have
made any representations and warranties of a Transferring Servicer hereunder).
Upon the transfer of the servicing of any such Mortgage Loan to the Special
Servicer, the Special Servicer shall be entitled to the Servicing Fee and
other compensation accruing after the servicing transfer date with respect to
such Mortgage Loans pursuant to Section 3.14.
In connection with the transfer of the servicing of any Mortgage
Loan to the Special Servicer, the Transferring Servicer shall, at the Special
Servicer's expense, deliver to the Special Servicer all documents and records
relating to such Mortgage Loans and an accounting of amounts collected or held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of the servicing to the Special Servicer. On the servicing transfer
date, the Special Servicer shall reimburse the Transferring Servicer for all
unreimbursed Advances, Servicing Advances and Servicing Fees and Master
Servicing Fees, as applicable, relating to the Mortgage Loans for which the
servicing is being transferred. The Special Servicer shall be entitled to be
reimbursed pursuant to Section 3.08 or otherwise pursuant to this Agreement
for all such Advances, Servicing Advances and Servicing Fees and Master
Servicing Fees, as applicable, paid by the Transferring Servicer pursuant to
this Section 3.19. In addition, the Special Servicer shall amend the Mortgage
Loan Schedule to reflect that such Mortgage Loans are Special Serviced
Mortgage Loans.
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ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution.
(I) (A) On each Distribution Date, with respect to the Group I
Certificates, the Group II Certificates, the Group III Certificates
and the Group IV Certificates, the Trust Administrator shall determine
the amounts to be distributed to each Class of Certificates as
follows:
(a) with respect to the Certificate Group I and the Class AR
Certificates and from the Available Distribution Amount relating to Loan Group
I:
(i) concurrently, to the Class I-A Certificates, the Class AR
Certificates and the Interest Remittance Amount, an amount allocable to
interest equal to the related Interest Distribution Amount, or, in the
case of the Interest Remittance Amount, the Group I Excess Interest
Amount for such Distribution Date, any shortfall being allocated pro rata
among such Classes in proportion to the amount of the Interest
Distribution Amount or Group I Excess Interest Amount, as applicable,
that would have been distributed in the absence of such shortfall;
(ii) on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for Loan Group I
remaining after giving effect to the distributions pursuant to clause
I(A)(a)(i) above, to the Class I-A Certificates and the Class AR
Certificates, the related Senior Principal Distribution Amount,
sequentially, to the Class A-R and Class I-A Certificates, in that order,
until their respective Class Principal Balances have been reduced to
zero;
(b) with respect to Certificate Group II and from the Available Distribution
Amount relating to Loan Group II:
(i) concurrently, to the Class II-A Certificates and the
Interest Remittance Amount, an amount allocable to interest equal to the
Class II-A Interest Distribution Amount, or, in the case of the Interest
Remittance Amount, the Group II Excess Interest Amount for such
Distribution Date, any shortfall being allocated pro rata between such
Class and Group II Excess Interest Amount, as applicable, that would have
been distributed in the absence of such shortfall;
(ii) on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for Loan Group II
remaining after giving effect to the distributions pursuant to clause
I(A)(b)(i) above, to the Class II-A Certificates, the related Senior
Principal Distribution Amount;
(c) with respect to Certificate Group III and from the Available Distribution
Amount relating to Loan Group III:
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(i) concurrently, to the Class III-A and Class III-X
Certificates, an amount allocable to interest equal to the related
Interest Distribution Amount, any shortfall being allocated pro rata
among such Classes in proportion to the amount of the Interest
Distribution Amount that would have been distributed in the absence of
such shortfall;
(ii) on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for Loan Group III
remaining after giving effect to the distributions pursuant to clause
I(A)(c)(i) above, to the Class III-A Certificates, the related Senior
Principal Distribution Amount;
(d) with respect to Certificate Group IV and from the Available Distribution
Amount relating to Loan Group IV:
(i) to the Class IV-A Certificates, an amount allocable to
interest equal to the related Interest Distribution Amount;
(ii) on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for Loan Group IV
remaining after giving effect to the distributions pursuant to clause
I(A)(d)(i) above, to the Class IV-A Certificates, the related Senior
Principal Distribution Amount;
(e) from the Available Distribution Amount relating to Loan Group I, Loan
Group II, Loan Group III and Loan Group IV remaining after the
distributions pursuant to (a), (b), (c) and (d) above, to each Class of
Subordinate Certificates relating to Loan Group I, Loan Group II, Loan
Group III and Loan Group IV, subject to paragraphs (B) and (C) below, in
the following order of priority:
(i) first, to the Class C-B-1 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(ii) second, to the Class C-B-1 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such Distribution
Date until the Class Principal Balance of Class C-B-1 Certificates has
been reduced to zero;
(iii) third, to the Class C-B-2 Certificates, an amount
allocable to interest equal to the Interest Distribution Amount for such
Class for such Distribution Date;
(iv) fourth, to the Class C-B-2 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such Distribution
Date until the Class Principal Balance of Class C-B-2 Certificates has
been reduced to zero;
(v) fifth, to the Class C-B-3 Certificates, an amount
allocable to interest equal to the Interest Distribution Amount for such
Class for such Distribution Date;
(vi) sixth, to the Class C-B-3 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution Date until
the Class Principal Balance of Class C-B-3 Certificates has been reduced
to zero;
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(vii) seventh, to the Class C-B-4, Class C-B-5 and Class C-B-6
Certificates, interest and principal in the same manner as for the Class
C-B-1, Class C-B-2 and Class C-B-3 Certificates, first to the Class C-B-4
Certificates, then to the Class C-B-5 Certificates and then to the Class
C-B-6 Certificates;
(viii) eighth, to the Class C-B-1, Class C-B-2, Class C-B-3,
Class C-B-4, Class C-B-5 and Class C-B-6 Certificates, in that order, up
to an amount of unreimbursed Realized Losses previously allocated to that
Class, if any; provided, however, that any distribution pursuant to this
clause (viii) shall not result in a further reduction of the Class
Principal Balance of any of the Group C-B Certificates; and
(ix) to the Class AR Certificates, any remaining Available
Distribution Amount for Loan Group I, Loan Group II, Loan Group III and
Loan Group IV.
Notwithstanding the allocation and priority set forth in Sections
4.01(I)(A)(a)(ii) and (c)(ii) hereof, on each Distribution Date on or after
the Credit Support Depletion Date, the portion of the related Available
Distribution Amount available to be distributed to the related Class of Class
A Certificates and the Class AR Certificates specified in such Section will be
distributed by the Trust Administrator among such Classes, pro rata, on the
basis of their respective Class Principal Balances or Notional Amounts, as
applicable, (prior to making any distributions on such Distribution Date) and
until the Class Principal Balances or Notional Amounts, as applicable, thereof
are reduced to zero.
(B) On each Distribution Date, the amount referred to in clause (i)
of the definition of Interest Distribution Amount for such Distribution Date
for each Class of Group I Certificates, Group II Certificates, Group III
Certificates and Group IV Certificates shall be reduced by the Trust
Administrator by, (i) the related Class' pro rata share (based on the
applicable Interest Distribution Amount for each such Class before reduction
pursuant to this Section 4.01(I)(B)(i)) of Net Prepayment Interest Shortfalls
for Mortgage Loans in Loan Group I, Loan Group II, Loan Group III and Loan
Group IV; and (ii) the Class' Pro Rata Allocation of (A) after the Special
Hazard Coverage Termination Date, with respect to each Mortgage Loan in such
Loan Groups that was the subject of Special Hazard Loss during the related
Prepayment Period, the excess of one month's interest at the related Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of the
Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month, (B) after the
Bankruptcy Coverage Termination Date, with respect to each Mortgage Loan in
such Loan Groups that became subject to a Bankruptcy Loss during the related
Prepayment Period, the interest portion of the related Debt Service Reduction
or Deficient Valuation, (C) each Relief Act Reduction for any Mortgage Loan in
such Loan Groups incurred during the related Prepayment Period and (D) after
the Fraud Loss Coverage Termination Date, with respect to each Mortgage Loan
in such Loan Groups that became a Fraud Loan during the related Prepayment
Period the excess of one month's interest at the related Net Mortgage Rate on
the Stated Principal Balance of such Mortgage Loan as of the Due Date in such
month over the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such month. For purposes of calculating the
reduction of the Interest Distribution Amount for each Class of Group C-B
Certificates with respect to Loan Group I, Loan Group II, Loan Group III or
Loan Group IV, such reduction shall be based on the amount of interest
accruing at the Net
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WAC Rate for such Loan Group on such Class' proportionate share, based on the
Class Principal Balance of the related Subordinate Component Balance for that
Distribution Date.
(C) With respect to each Class of Group C-B Certificates, if on any
Distribution Date the related Subordination Level of such Class is less than
such percentage as of the Closing Date, no distribution of Principal
Prepayments in Full and Principal Prepayments in Part will be made to any
Class or Classes of Subordinate Certificates junior to such Class (the
"Restricted Classes") and the amount otherwise distributable to the Restricted
Classes in respect of such Principal Prepayments in Full and Principal
Prepayments in Part will be allocated among the remaining Classes of
Subordinate Certificates, pro rata, based upon their respective Class
Principal Balances.
(II) With respect to the Group V Certificates:
(a) On each Distribution Date, the Trust Administrator shall distribute
the Interest Remittance Amount for such date in the following order of
priority:
(i) to the Class V-A Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date;
(ii) to the Class V-M-1 Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date;
(iii) to the Class V-M-2 Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date;
(iv) To the Class V-B Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date; and
(v) for application as part of Monthly Excess Cashflow for such
Distribution Date as provided in Section 4.01(II)(d), any Interest
Remittance Amount remaining for such Distribution Date.
(b) On each Distribution Date (A) prior to the Stepdown Date or (B)
with respect to which a Trigger Event has occurred, the Trust Administrator
shall distribute the Principal Payment Amount for Loan Group V for such date
in the following order of priority:
(i) to the Class V-A Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
(ii) to the Class V-M-1 Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
(iii) to the Class V-M-2 Certificates, until the Class
Principal Balance of such Class has been reduced to zero;
(iv) to the Class V-B Certificates, until the Class Principal
Balance of such Class has been reduced to zero; and
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(v) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.01(II)(d), any Principal
Payment Amount remaining after application pursuant to clauses II(b)(i)
through (iv) above.
(c) On each Distribution Date (A) on or after the Stepdown Date and (B)
with respect to which a Trigger Event has not occurred, the Trust
Administrator shall distribute the Principal Payment Amount for such date in
the following order of priority:
(i) to the Class V-A Certificates, the Group V Senior Principal
Payment Amount, until the Class Principal Balance of such Class has been
reduced to zero;
(ii) to the Class V-M-1 Certificates, the Class V-M-1 Principal
Payment Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero;
(iii) to the Class V-M-2 Certificates, the Class V-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 V-B Certificates, the Class V-B Principal
Payment Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero; and
(v) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.01(II)(d), any Principal
Payment Amount remaining after application pursuant to clauses II(c)(i)
though (iv) above.
(d) On each Distribution Date, the Trust Administrator shall distribute
the Monthly Excess Cashflow (excluding for purposes of distributions pursuant
to clause (d)(A) below, any monies provided under clauses (6) and (7) of the
definition of Monthly Excess Cashflow) for such date in the following order of
priority:
(i) (A) until the aggregate Class Principal Balance of the
Group V Certificates, other than the Class V-X Certificates, equals the
Aggregate Loan Group Balance of Loan Group V for such Distribution Date
minus the Targeted Overcollateralization Amount for such date, on each
Distribution Date (x) prior to the Stepdown Date or (y) with respect to
which a Trigger Event has occurred, to the extent of Monthly Excess
Interest for such Distribution Date, to the Group V Certificates, in the
following order of priority:
(a) to the Class V-A Certificates, until the Class
Principal Balance of such Class has been reduced to
zero;
(b) to the Class V-M-1 Certificates, until the Class
Principal Balance of such Class has been reduced to
zero;
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(c) to the Class V-M-2 Certificates, until the Class
Principal Balance of such Class has been reduced to
zero; and
(d) to the Class V-B Certificates, until the Class
Principal Balance of such Class has been reduced to
zero.
(B) on each Distribution Date on or after the Stepdown Date and with
respect to which a Trigger Event has not occurred, to fund any principal
distributions required to be made on such Distribution Date set forth above in
Section 4.01(II)(c) above, after giving effect to the distribution of the
Principal Payment Amount for Loan Group V for such Distribution Date, in
accordance with the priorities set forth therein;
(i) to the Class V-A Certificates, any Basis Risk Shortfall
due and owing for such Class;
(ii) to the Class V-M-1 Certificates, any Basis Risk Shortfall
due and owing for such Class;
(iii) to the Class V-M-2 Certificates, any Basis Risk Shortfall
due and owing for such Class;
(iv) to the Class V-B Certificates, any Basis Risk Shortfall due
and owing for such Class;
(v) to the Class V-M-1 Certificates, first, any Carryforward
Interest and then any Deferred Amount for such Class;
(vi) to the Class V-M-2 Certificates, first any Carryforward
Interest and then any Deferred Amount for such Class;
(vii) to the Class V-B Certificates, first any Carryforward
Interest and then any Deferred Amount for such Class;
(viii) to the Basis Risk Reserve Fund, any Required Basis Risk
Reserve Fund Deposit, including the amount of any dividends received by
the Trust to the extent of any Overcollateralization Deficiency following
the application of Monthly Excess Cashflow under clause (D)(A) above for
such Distribution Date;
(ix) to the Class V-X Certificate, the Class V-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 (c); and
(x) to the Class AR Certificates, any remaining amount.
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SECTION 4.02 Allocation of Losses.
(A) (a) Realized Losses on the Mortgage Loans in each of Loan Group
I, Loan Group II, Loan Group III and Loan Group IV with respect to any
Distribution Date shall be allocated by the Trust Administrator to the Classes
of Certificates as follows:
(i) any Realized Loss shall be allocated first, to the Group
C-B Certificates in decreasing order of their numerical Class
designations (beginning with the Class C-B-6 Certificates), until the
respective Class Principal Balance of each such Class is reduced to zero,
and second, to the Senior Certificates of such Certificate Group (other
than the Notional Amount Certificates), pro rata, on the basis of their
respective Class Principal Balances; provided, however, such losses on
Loan Group I, Loan Group II, Loan Group III and Loan Group IV will only
be allocated to the respective Senior Certificates; and
(ii) On each Distribution Date, Excess Losses for Mortgage
Loans in Loan Group I, Loan Group II, Loan Group III and Loan Group IV
will be allocated pro rata among all Classes of Senior Certificates
(other than the Notional Amount Certificates) and the Group C-B
Certificates, in each case, relating to Loan Group I, Loan Group II, Loan
Group III and Loan Group IV, based on their respective Class Principal
Balances.
(b) On each Distribution Date, if the aggregate Class Principal Balance
of all Group I Certificates, Group II Certificates, Group III Certificates and
Group IV Certificates exceeds the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group I, Loan Group II, Loan Group III and Loan Group
IV (after giving effect to distributions of principal and the allocation of
all losses to such Certificates on such Distribution Date), such excess will
be deemed a principal loss and will be allocated by the Trust Administrator to
the most junior Class of Group C-B Certificates then outstanding.
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant
to Section 4.02(b) shall be allocated by the Trust Administrator among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(d) Any allocation by the Trust Administrator of Realized Losses to a
Certificate or any reduction in the Certificate Balance of a Certificate
pursuant to Section 4.02(b) shall be accomplished by reducing the Certificate
Balance thereof, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance."
(B) On each Distribution Date, the Trust Administrator shall
determine the total of the Applied Loss Amount with respect to the Group V
Certificates, if any, for such Distribution Date. The Applied Loss Amount with
respect to the Group V Certificates for any Distribution Date shall be applied
by reducing the Class Principal Balance of each Class of Group V Subordinate
Certificates beginning with the Class of Group V Subordinate Certificates then
outstanding, other than the Class V-X Certificates, with the lowest relative
payment priority, in each case until the respective Class Principal Balance
thereof is reduced to zero. Any Applied Loss Amount with respect to the Group
V Certificates allocated to a Class of Group V
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Subordinate Certificates shall be allocated among the Group V Subordinate
Certificates of such Class in proportion to their respective Percentage
Interests.
SECTION 4.03 Limited Purpose Surety Bond.
If a Required Surety Payment is payable pursuant to the Limited
Purpose Surety Bond with respect to any Additional Collateral Mortgage Loans,
as determined by the Master Servicer and the Additional Collateral Servicer,
the Master Servicer shall so notify the Trust Administrator as soon as
reasonably practicable and the Trustee shall promptly complete the notice in
the form of Attachment 1 to the Limited Purpose Surety Bond and shall promptly
submit such notice to the surety as a claim for a Required Surety Payment. The
Master Servicer shall upon request assist the Trustee in completing such
notice and shall provide any information requested by the Trustee in
connection therewith.
Upon receipt of a Required Surety Payment from the Surety on behalf
of the Certificateholders, the Trustee shall deposit such Required Surety
Payment in the Certificate Account and shall distribute such Required Surety
Payment, or the proceeds thereof, in accordance with the provisions of Section
4.01(II).
The Trust Administrator shall (i) receive as attorney-in-fact of
each Holder of a Certificate any Required Surety Payment from the surety and
(ii) disburse the same to the Holders of such Certificates as set forth in
Section 4.01(II).
SECTION 4.04 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trust Administrator
shall prepare and cause to be made available to each Certificateholder, the
Master Servicer, each Servicer, the Trustee, the Depositor, and each Rating
Agency, a statement setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, indicating the
portion thereof attributable to Scheduled Payments and Principal
Prepayments;
(ii) the amount thereof allocable to interest, indicating the
portion thereof attributable to any Carryforward Interest or Class Unpaid
Interest Amounts, as applicable, included in such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest;
(iv) the Class Principal Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Aggregate Loan Balance and Aggregate Loan Group Balance
for each Loan Group, in each case, for the following Distribution Date;
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(vi) the amount of the Master Servicing Fees, the Servicing
Fees, and the RMIC PMI Fees, as applicable, with respect to such
Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on
such Distribution Date and the aggregate amount of Advances outstanding
as of the close of business on such Distribution Date;
(ix) the number and aggregate principal amounts of Mortgage
Loans in foreclosure or delinquent (with a notation indicating which
Mortgage Loans, if any, are in foreclosure) (1) 31 to 60 days, (2) 61 to
90 days and (4) 91 or more days, as of the close of business on the last
day of the calendar month preceding such Distribution Date;
(x) the 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;
(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; and
(xiv) the number and principal amount of claims submitted and
claims paid under the RMIC PMI Policy during the preceding calendar month
and the number and principal amount of claims submitted and claims paid
under the RMIC PMI Policy through such Distribution Date.
The Trust Administrator's responsibility for disbursing the above
information to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer
and each Servicer which shall be provided as required in Section 4.05.
On each Distribution Date, the Trust Administrator shall provide
Bloomberg Financial Markets, L.P. ("Bloomberg") CUSIP level factors for each
Class of Offered Certificates as of such Distribution Date, using a format and
media mutually acceptable to the Trust Administrator and Bloomberg. In
connection with providing the information specified in this Section 4.04 to
Bloomberg, the Trust Administrator and any director, officer, employee or
agent of the Trust Administrator shall be indemnified and held harmless by
DLJMC, to the extent, in the manner and subject to the limitations provided in
Section 9.05. The Trust Administrator will also make the monthly statements to
Certificateholders available each month to each party referred to in Section
4.04(a) via the Trust Administrator's website. The Trust
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Administrator's website can be accessed at xxxx://xxx.XXXxxxxx.xxx/xxxxxx or
at such other site as the Trust Administrator may designate from time to time.
Persons that are unable to use the above website are entitled to have a paper
copy mailed to them via first class mail by calling the Trust Administrator at
000-000-0000. The Trust Administrator shall have the right to change the way
the reports referred to in this Section are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
to the Certificateholders. The Trust Administrator shall provide timely and
adequate notification to all above parties and to the Certificateholders
regarding any such change. The Trust Administrator may fully rely upon and
shall have no liability with respect to information provided by the Master
Servicer or any Servicer.
(b) Upon request, within a reasonable period of time after the end of
each calendar year, the Trust Administrator shall cause to be furnished to
each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i), (a)(ii)
and (a)(vi) of this Section 4.04 aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trust Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trust Administrator pursuant to any requirements of the Code
as from time to time in effect.
SECTION 4.05 Servicer to Cooperate.
Each Servicer, other than WMMSC, shall provide to the Master
Servicer, and WMMSC and the Master Servicer shall each provide to the Trust
Administrator, the information set forth in Exhibit G in such form as the
Trust Administrator shall reasonably request with respect to each Mortgage
Loan serviced by the Master Servicer or such Servicer no later than twelve
noon on the Data Remittance Date to enable the Trust Administrator to
calculate the amounts to be distributed to each class of certificates and
otherwise perform its distribution, accounting and reporting requirements
hereunder.
SECTION 4.06 Cross-Collateralization; Adjustments to Available Funds
(a) On each Distribution Date prior to the Senior Credit Support
Depletion Date, but after the date on which the aggregate Class Principal
Balance of Senior Certificates in Group I, Group II, Group III or Group IV has
been reduced to zero, the Trust Administrator shall distribute the principal
portion of Available Distribution Amount on the Mortgage Loans relating to
such Senior Certificates that will have been paid in full, to the holders of
the Senior Certificates of the other Certificate Groups, pro rata, based on
Class Principal Balances, provided, however, that the Trust Administrator
shall not make such distribution on such Distribution Date if (a) the
Subordinate Pool Percentage for such Distribution Date is greater than or
equal to 200% of such Subordinate Pool Percentage as of the Closing Date and
(b) the average outstanding principal balance of the Mortgage Loans in each
Loan Group delinquent 60 days or more over the last six months, as a
percentage of the related Subordinate Component Balance, is less than 50%.
(b) If on any Distribution Date the Class Principal Balance of
Senior Certificates in Group I, Group II, Group III or Group IV is greater
than the aggregate Stated Principal Balance
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of the Mortgage Loans in the related Loan Group (the "Undercollateralized
Group"), then the Trust Administrator shall reduce the Available Distribution
Amount of the other related Loan Groups that are not undercollateralized (the
"Overcollateralized Groups"), as follows:
(1) to add to the Available Distribution Amount of each
Undercollateralized Group an amount equal to the
lesser of (a) one month's interest on the Principal
Transfer Amount of each Undercollateralized Group at
the Pass-Through Rate applicable to the
Undercollateralized Group(s) and (b) Available
Distribution Amount of the Overcollateralized
Group(s) remaining after making interest
distributions to the Senior Certificates of the
Overcollateralized Group(s) on such Distribution Date
pursuant to Section 4.01; and
(2) to the Senior Certificates of each
Undercollateralized Group, to the extent of the
principal portion of Available Distribution Amount of
the Overcollateralized Group(s) remaining after
making interest and principal distributions to the
Senior Certificates of the Overcollateralized
Group(s) on such Distribution Date pursuant to
Section 4.01, until the Class Principal Balance of
the Senior Certificates of such Undercollateralized
Group(s) equals the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan
Group(s), any shortfall of such Available
Distribution Amount to be allocated among such
Undercollateralized Group(s), pro rata, based upon
the respective Principal Transfer Amounts.
(c) If more than one Overcollateralized Group exists on any
Distribution Date, reductions in the Available Funds of such groups to make
the payments required to be made pursuant to Section 4.06(b) on such
Distribution Date shall be made pro rata, based on the amount of payments
required to be made to the Undercollateralized Group(s).
SECTION 4.07 Basis Risk Reserve Fund
(a) On the Closing Date, the Trust Administrator shall establish and
maintain in its name, in trust for the benefit of the Holders of the
Certificates, the Basis Risk Reserve Fund. The Basis Risk Reserve Fund shall
be an Eligible Account, and funds on deposit therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trust Administrator pursuant to
this Agreement.
(b) On the Closing Date, $5,000 will be deposited by the Depositor into
the Basis Risk Reserve Fund. On each Distribution Date, the Trust
Administrator shall transfer from the Certificate Account to the Basis Risk
Reserve Fund pursuant to Section 4.01(II), the Required Basis Risk Reserve
Fund Deposit. Amounts on deposit in the Basis Risk Reserve Fund can be
withdrawn by the Trust Administrator in connection with any Distribution Date
to fund the amounts required to be distributed to holders of the Group V
Certificates in respect of Basis Risk Shortfall pursuant to Section 4.01(II)
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
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Basis Risk Reserve Fund in excess of the Required Basis Risk Reserve Fund
Amount shall be distributed to the Class V-X Certificateholder pursuant to
Section 4.01(II).
(c) Funds in the Basis Risk Reserve Fund may be invested in Eligible
Investments by the Trust Administrator at the direction of the holders of the
Class V-X Certificateholder. Any net investment earnings on such amounts shall
be payable to the Class V-X Certificateholder. The Class V-X Certificateholder
shall evidence ownership of the Basis Risk Reserve Fund for federal tax
purposes and the Class V-X Certificateholder shall direct the Trust
Administrator in writing as to the investment of amounts therein. In the
absence of such written direction, all funds in the Basis Risk Reserve Fund
shall be invested by the Trust Administrator in the JPMorgan Prime Money
Market Fund. The Trust Administrator shall have no liability for losses on
investments in Eligible Investments made pursuant to this Section 4.07(c)
(other than as obligor on any such investments). Upon termination of the Trust
Fund, any amounts remaining in the Basis Risk Reserve Fund shall be
distributed to the Class V-X Certificateholders in the same manner as if
distributed pursuant to Section 4.01(II) hereof.
(d) If the Trust Administrator shall deposit in the Basis Risk Reserve
Fund any amount not required to be deposited therein, it may at any time
withdraw such amount from such Basis Risk Reserve Fund, any provision herein
to the contrary notwithstanding.
(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 V-X Certificate in the same manner as
if distributed pursuant to Section 4.01(II) hereof.
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ARTICLE V
ADVANCES BY THE MASTER SERVICER AND SERVICERS
SECTION 5.01 Advances by the Master Servicer and Servicers.
The Master Servicer and each Servicer shall deposit in the related
Collection Account as Advances an amount equal to all Scheduled Payments (with
interest at the Mortgage Rate less the Servicing Fee Rate and any applicable
Master Servicing Fee Rate) which were due on the Mortgage Loans serviced by it
during the applicable Collection Period and which were delinquent at the close
of business on the immediately preceding Determination Date. The Master
Servicer and each Servicer's obligation to make such Advances as to any
related Mortgage Loan will continue through the last Scheduled Payment due
prior to the payment in full of such Mortgage Loan, or through the date that
the related Mortgaged Property has, in the judgment of the Master Servicer and
the related Servicer, been completely liquidated. The Master Servicer and each
Servicer shall not be required to advance shortfalls of principal or interest
resulting from the application of the Soldiers' and Sailors' Civil Relief Act
of 1940.
To the extent required by Accepted Servicing Practices, the Master
Servicer and each Servicer shall be obligated to make Advances in accordance
with the provisions of this Agreement; provided, however, that such obligation
with respect to any related Mortgage Loan shall cease if the Master Servicer
or a Servicer determines, in its reasonable opinion, that Advances with
respect to such Mortgage Loan are Nonrecoverable Advances. In the event that
the Master Servicer or such Servicer determines that any such advances are
Nonrecoverable Advances, the Master Servicer or such Servicer shall provide
the Trust Administrator and the Trustee with a certificate signed by a
Servicing Officer evidencing such determination.
If an Advance is required to be made hereunder, the Master Servicer
or the related Servicer shall on the Cash Remittance Date either (i) deposit
in the Collection Account from its own funds an amount equal to such Advance,
(ii) cause to be made an appropriate entry in the records of the Collection
Account that funds in such account being held for future distribution or
withdrawal have been, as permitted by this Section 5.01, used by the Master
Servicer or such Servicer to make such Advance or (iii) make Advances in the
form of any combination of clauses (i) and (ii) aggregating the amount of such
Advance. Any such funds being held in a Collection Account for future
distribution and so used shall be replaced by the Master Servicer or such
Servicer from its own funds by deposit in such Collection Account on or before
any future Distribution Date in which such funds would be due.
If the amount of Advances received from a Servicer, other than
WMMSC, is less than the amount required to be advanced by such Servicer, the
Master Servicer shall be obligated to make a payment in an amount equal to
such deficiency.
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ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.
The Certificates shall be in substantially the forms set forth in
Exhibits A, B, C, D, E and 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 Trust Administrator
or the Depositor be necessary, appropriate or convenient to comply, or
facilitate compliance, with applicable laws, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange on which any of the Certificates may be listed, or as may,
consistently herewith, be determined by the officers executing such
Certificates, as evidenced by their execution thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trust Administrator by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time when such signatures were affixed, authorized to sign on behalf of the
Trust Administrator shall bind the Trust Administrator, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication executed by the
Trust Administrator by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Trust Administrator shall maintain, or cause to be maintained,
a Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trust Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. Upon surrender for registration of transfer of any Certificate, the
Trust Administrator shall execute, authenticate and deliver, in the name of
the designated
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transferee or transferees, one or more new Certificates in like aggregate
interest and of the same Class.
(b) At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of authorized denominations and the same aggregate
interest in the Trust Fund and of the same Class, upon surrender of the
Certificates to be exchanged at the office or agency of the Trust
Administrator set forth in Section 6.06. Whenever any Certificates are so
surrendered for exchange, the Trust Administrator shall execute, authenticate
and deliver the Certificates which the Certificateholder making the exchange
is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by the Holder thereof or his attorney duly authorized in writing.
(c) No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
(d) All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trust
Administrator in accordance with the Trust Administrator's customary
procedures.
(e) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. Except in connection with any transfer of a
Private Certificate by the Depositor to any affiliate, in the event that a
transfer is to be made in reliance upon an exemption from the 1933 Act and
such laws, in order to assure compliance with the 1933 Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer in substantially
the form set forth in Exhibit L (the "Transferor Certificate") and (i) deliver
a letter in substantially the form of either Exhibit M-1 (the "Investment
Letter") or Exhibit M-2 (the "Rule 144A Letter") or (ii) there shall be
delivered to the Trust Administrator at the expense of the transferor an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from the 1933 Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the 1933 Act pursuant to the registration
exemption provided by Rule 144A. The Trust Administrator shall cooperate with
the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trust
Administrator, the Depositor, each Seller, the Master Servicer, each Servicer
and the Special
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Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
(f) No transfer of an ERISA-Restricted Certificate shall be made to any
employee benefit or other plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Code, to a trustee or other person acting on behalf of any such plan, or to
any other person using "plan assets" to effect such acquisition, unless the
prospective transferee of a Certificate provides the Trust Administrator with
(i) in the case of an ERISA-Restricted Certificate that has been the subject
of an ERISA-Qualifying Underwriting, a certification as set forth in item (d)
of Exhibit M-1 or M-2 or item 15 of Exhibit N and in the case of any other
ERISA-Restricted Certificate, a certification as set forth in item d(i) of
Exhibit M-1 or M-2 or item 15(a) of Exhibit N; or (ii) an Opinion of Counsel
which establishes to the reasonable satisfaction of the Trustee and the Trust
Administrator that the purchase and holding of an ERISA-Restricted Certificate
by, on behalf of or with "plan assets" of such plan is permissible under
applicable local law, would not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and would not subject the Depositor, the Trustee, the Trust Administrator, the
Master Servicer or the Servicers or the Special Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in this Agreement or any other liability. The
Trust Administrator shall require, where applicable, that such prospective
transferee certify to the Trust Administrator in writing the facts
establishing that such transferee is not such a plan and is not acting on
behalf of or using "plan assets" of any such plan to effect such acquisition.
(g) Additional restrictions on transfers of the Class AR Certificates
to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership interest
in a Class AR Certificate shall be deemed by the acceptance or
acquisition of such ownership interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trust
Administrator or its designee under clause (iii)(A) below to deliver
payments to a Person other than such Person and to negotiate the terms of
any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any
ownership interest in a Class AR Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any ownership interest
in a Class AR Certificate shall be other than a Disqualified
Organization and shall promptly notify the Trust Administrator of
any change or impending change in its status as other than a
Disqualified Organization.
(B) In connection with any proposed transfer of any
ownership interest in a Class AR Certificate to a U.S. Person, the
Trust Administrator shall require delivery to it, and shall not
register the transfer of a Class AR Certificate until its receipt of
(1) an affidavit and agreement (a "Transferee Affidavit and
Agreement" attached hereto as Exhibit N) from the proposed
transferee, in form and substance satisfactory to the Trust
Administrator, representing and warranting, among other
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things, that it is not a non-U.S. Person, that such transferee is
other than a Disqualified Organization, that it is not acquiring its
ownership interest in a Class AR Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for any Person
who is not other than a Disqualified Organization, that for so long
as it retains its ownership interest in a Class AR Certificate, it
will endeavor to remain other than a Disqualified Organization, and
that it has reviewed the provisions of this Section 6.02(g) and
agrees to be bound by them, and (2) a certificate, attached hereto
as Exhibit O, from the Holder wishing to transfer a Class AR
Certificate, in form and substance satisfactory to the Trust
Administrator, representing and warranting, among other things, that
no purpose of the proposed transfer is to allow such Holder to
impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit
and Agreement by a proposed transferee under clause (B) above, if
the Trust Administrator has actual knowledge that the proposed
transferee is not other than a Disqualified Organization, no
transfer of an ownership interest in a Class AR Certificate to such
proposed transferee shall be effected.
(D) Each Person holding or acquiring any ownership interest
in a Class AR Certificate agrees, by holding or acquiring such
ownership interest, to require a Transferee Affidavit and Agreement
from the other Person to whom such Person attempts to transfer its
ownership interest and to provide a certificate to the Trust
Administrator in the form attached hereto as Exhibit O.
(ii) The Trust Administrator shall register the transfer of any
Class AR Certificate only if it shall have received the Transferee
Affidavit and Agreement, a certificate of the Holder requesting such
transfer in the form attached hereto as Exhibit O and all of such other
documents as shall have been reasonably required by the Trust
Administrator as a condition to such registration.
(iii) (A) If any Disqualified Organization shall become a
Holder of a Class AR Certificate, then the last preceding Holder that was
other than a Disqualified Organization shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such Class AR
Certificate. If any non-U.S. Person shall become a Holder of a Class AR
Certificate, then the last preceding Holder that is a U.S. Person shall
be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of
the transfer to such non-U.S. Person of such Class AR Certificate. If a
transfer of a Class AR Certificate is disregarded pursuant to the
provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Holder that was other than a Disqualified
Organization shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date of
registration of such transfer of such Class AR Certificate. The Trust
Administrator shall be under no liability to any Person for any
registration of transfer of a Class AR Certificate that is in fact not
permitted by this Section 6.02(g) or for making any payments due on such
110
Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement.
(B) If any purported transferee of a Class AR Certificate
shall become a Holder of a Class AR Certificate in violation of the
restrictions in this Section 6.02(g) and to the extent that the
retroactive restoration of the rights of the Holder of such Class AR
Certificate as described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Depositor shall have the right,
without notice to the Holder or any prior Holder of such Class AR
Certificate, to sell such Class AR Certificate to a purchaser
selected by the Depositor on such terms as the Depositor may choose.
Such purported transferee shall promptly endorse and deliver a Class
AR Certificate in accordance with the instructions of the Depositor.
Such purchaser may be the Depositor itself or any affiliate of the
Depositor. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Depositor or its affiliates),
expenses and taxes due, if any, shall be remitted by the Depositor
to such purported transferee. The terms and conditions of any sale
under this clause (iii)(B) shall be determined in the sole
discretion of the Depositor, and the Depositor shall not be liable
to any Person having an ownership interest or a purported ownership
interest in a Class AR Certificate as a result of its exercise of
such discretion.
(iv) The Master Servicer and each Servicer, on behalf of the
Trust Administrator, shall make available, upon written request from the
Trust Administrator, all information reasonably available to it that is
necessary to compute any tax imposed (A) as a result of the transfer of
an ownership interest in a Class AR Certificate to any Person who is not
other than a Disqualified Organization, including the information
regarding "excess inclusions" of such Residual Certificate required to be
provided to the Internal Revenue Service and certain Persons as described
in Treasury Regulation Section 1.860D-1(b)(5), and (B) as a result of any
regulated investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organizations described in Section
1381 of the Code having as among its record holders at any time any
Person who is not other than a Disqualified Organization. Reasonable
compensation for providing such information may be required by the Master
Servicer or the related Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior to
this Section (v) may be modified, added to or eliminated by the
Depositor, provided that there shall have been delivered to the Trust
Administrator the following:
(A) written notification from each Rating Agency to the
effect that the modification, addition to or elimination of such
provisions will not cause such Rating Agency to downgrade its
then-current rating of the Certificates; and
(B) a certificate of the Depositor stating that the
Depositor has received an Opinion of Counsel, in form and substance
satisfactory to the Depositor, to the effect that such modification,
addition to or elimination of such provisions will not cause the
Trust Fund to cease to qualify as a REMIC and will not create a risk
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that (i) the Trust Fund may be subject to an entity-level tax caused
by the transfer of a Class AR Certificate to a Person which is not
other than a Disqualified Organization or (2) a Certificateholder or
another Person will be subject to a REMIC-related tax caused by the
transfer of applicable Class AR Certificate to a Person which is not
other than a Disqualified Organization.
(vi) The following legend shall appear on each Class AR
Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT
TO THE DEPOSITOR AND THE TRUST ADMINISTRATOR THAT (1) SUCH
TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED
IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY
CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED
IN SECTION 1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH
AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR
OTHER DISPOSITION OF THIS CLASS AR CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH
HOLDER OF THE CLASS AR CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
(h) The Trust Administrator shall have no liability to the Trust Fund
arising from a transfer of any such Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 6.02;
provided, however, that the Trust Administrator shall not register the
transfer of any Class AR Certificate if it has actual knowledge that the
proposed transferee does not meet the qualifications of a permitted Holder of
a Class AR Certificate as set forth in this Section 6.02.
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SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trust
Administrator, or the Trust Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to each Servicer, the Trustee and the Trust Administrator
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee and the Trust
Administrator that such Certificate has been acquired by a bona fide
purchaser, the Trust Administrator shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and interest in the Trust Fund.
In connection with the issuance of any new Certificate under this Section
6.03, the Trust Administrator may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trust
Administrator) connected therewith. Any replacement Certificate issued
pursuant to this Section 6.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or
not the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, each Servicer, the Trust Administrator, and any agent of the Master
Servicer or any Servicer, the Trust Administrator may treat the person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for
all other purposes whatsoever, and none of the Master Servicer or the
Servicers, the Trust Administrator, nor any agent of the Master Servicer or a
Servicer or the Trust Administrator shall be affected by any notice to the
contrary.
SECTION 6.05 Access to List of Certificateholders' Names and Addresses.
(a) If three or more Certificateholders (i) request in writing from the
Trust Administrator a list of the names and addresses of Certificateholders,
(ii) state that such Certificateholders desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and (iii) provide a copy of the communication which such
Certificateholders propose to transmit, then the Trust Administrator shall,
within ten Business Days after the receipt of such request, afford such
Certificateholders access during normal business hours to a current list of
the Certificateholders. The expense of providing any such information
requested by a Certificateholder shall be borne by the Certificateholders
requesting such information and shall not be borne by the Trust Administrator
or the Trustee. Every Certificateholder, by receiving and holding a
Certificate, agrees that the Trustee and the Trust Administrator shall not be
held accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from which
such information was derived.
(b) The Master Servicer and each Servicer, so long as it is a servicer
hereunder, DLJMC and the Depositor shall have unlimited access to a list of
the names and addresses of the Certificateholders which list shall be provided
by the Trust Administrator promptly upon request.
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SECTION 6.06 Maintenance of Office or Agency.
The Trust Administrator will maintain or cause to be maintained at
its expense an office or offices or agency or agencies in New York City where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trust Administrator in respect of the
Certificates and this Agreement may be served. The Trust Administrator
initially designates its Corporate Trust Office as its office for such
purpose. The Trust Administrator will give prompt written notice to the
Certificateholders of any change in the location of any such office or agency.
SECTION 6.07 Book-Entry Certificates.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder will receive a definitive
certificate representing such Beneficial Holder's interest in the
Certificates, except as provided in Section 6.09. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Beneficial Holders pursuant to Section 6.09:
(a) the provisions of this Section 6.07 shall be in full force and
effect with respect to the Book-Entry Certificates;
(b) the Depositor and the Trust Administrator may deal with the
Clearing Agency for all purposes with respect to the Book-Entry Certificates
(including the making of distributions on such Certificates) as the sole
Holder of such Certificates;
(c) to the extent that the provisions of this Section 6.07 conflict
with any other provisions of this Agreement, the provisions of this Section
6.07 shall control; and
(d) the rights of the Beneficial Holders of the Book-Entry Certificates
shall be exercised only through the Clearing Agency and the Participants and
shall be limited to those established by law and agreements between such
Beneficial Holders and the Clearing Agency and/or the Participants. Pursuant
to the Depository Agreement, unless and until Definitive Certificates are
issued pursuant to Section 6.09, the initial Clearing Agency will make
book-entry transfers among the Participants and receive and transmit
distributions of principal and interest on the related Book-Entry Certificates
to such Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Book-Entry Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of such Certificates, such direction or consent may be
given by the Clearing Agency at the direction of Beneficial Holders owning
such Certificates evidencing the requisite percentage of principal amount of
such Certificates. The Clearing Agency may take conflicting actions with
respect to the Book-Entry Certificates to the extent that such actions are
taken on behalf of the Beneficial Holders.
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SECTION 6.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of Book-Entry
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to the related Certificateholders pursuant
to Section 6.09, the Trust Administrator shall give all such notices and
communications specified herein to be given to Holders of the Book-Entry
Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 6.09 Definitive Certificates.
If (a) the Depositor advises the Trust Administrator in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities under the Depository Agreement with respect to the
Certificates and the Trust Administrator or the Depositor is unable to locate
a qualified successor, (b) the Depositor, at its option, advises the Trust
Administrator in writing that it elects to terminate the book-entry system
with respect to the Book-Entry Certificates through the Clearing Agency or (c)
after the occurrence of an Event of Default, Holders of Book-Entry
Certificates evidencing not less than 66-2/3% of the aggregate Class Principal
Balance of the Book-Entry Certificates advise the Trust Administrator in
writing that the continuation of a book-entry system with respect to the such
Certificates through the Clearing Agency is no longer in the best interests of
the Holders of such Certificates with respect to the Book-Entry Certificates,
the Trust Administrator shall notify all Holders of such Certificates of the
occurrence of any such event and the availability of Definitive Certificates.
Upon surrender to the Trust Administrator of the such Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trust Administrator shall authenticate and
deliver the Definitive Certificates. Neither the Depositor nor the Trust
Administrator shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trust Administrator,
to the extent applicable with respect to such Definitive Certificates, and the
Trust Administrator shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
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ARTICLE VII
THE DEPOSITOR, THE SELLERS, THE MASTER SERVICER, THE SERVICERS
AND THE SPECIAL SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor, the Master
Servicer, the Servicers and the Special Servicer.
The Depositor, each Seller, the Master Servicer and each Servicer
and the Special Servicer shall be liable under this Agreement to any other
party to this Agreement, including the liability of each Servicer, other than
WMMSC, to the Master Servicer in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by them
herein.
SECTION 7.02 Merger or Consolidation of the Sellers, the Depositor, the
Master Servicer, the Servicers or the Special Servicer.
Subject to the immediately succeeding paragraph, the Depositor, each
Seller, the Master Servicer, each Servicer and the Special Servicer will each
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights and franchises (charter and statutory) and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor, any Seller, the Master
Servicer, any Servicer or the Special Servicer may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the
Depositor, any Seller, the Master Servicer, any Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business of the
Depositor, any Seller or any Servicer, shall be the successor of the
Depositor, such Seller or such Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that (i) the successor or surviving Person to the Master
Servicer, any such Servicer (other than WMMSC) or the Special Servicer shall
be qualified to sell mortgage loans to, and to service mortgage loans on
behalf of, FNMA or FHLMC and (ii) the successor or surviving Person to WMMSC
shall have a net worth of at least $15,000,000, unless each of the Rating
Agencies acknowledge, at the expense of the successor or surviving person to
WMMSC, that its rating of the Certificates in effect immediately prior to such
assignment will not be qualified or reduced as a result of such successor or
surviving Person to WMMSC not having a net worth of at least $15,000,000.
Notwithstanding anything else in this Section 7.02 or in Section
7.04 hereof to the contrary, the Master Servicer or a Servicer may assign its
rights and delegate its duties and obligations under this Agreement; provided,
however, that the Master Servicer or such Servicer gives the Depositor, the
Trustee and the Trust Administrator notice of such assignment; and provided
further, that such purchaser or transferee accepting such assignment and
delegation shall be an institution that is a FNMA and FHLMC approved
seller/servicer in good standing,
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which has a net worth of at least $15,000,000, and which is willing to service
the Mortgage Loans and executes and delivers to the Depositor, the Trustee and
the Trust Administrator an agreement accepting such delegation and assignment,
which contains an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer or such
Servicer, with like effect as if originally named as a party to this
Agreement; and provided further, that each of the Rating Agencies acknowledge
that its rating of the Certificates in effect immediately prior to such
assignment will not be qualified or reduced as a result of such assignment and
delegation. In the case of any such assignment and delegation, the Master
Servicer or such Servicer shall be released from its obligations under this
Agreement (except as provided above), except that the Master Servicer or the
related Servicer shall remain liable for all liabilities and obligations
incurred by it as the Master Servicer or Servicer hereunder prior to the
satisfaction of the conditions to such assignment and delegation set forth in
the preceding sentence.
SECTION 7.03 Limitation on Liability of the Sellers, the Depositor, the
Master Servicer, the Servicers, the Special Servicer and
Others.
None of the Depositor, the Master Servicer, any Servicer, any
Seller, the Special Servicer nor any of the directors, officers, employees or
agents of the Depositor, the Master Servicer, any Servicer, any Seller or the
Special Servicer shall be under any liability to the Certificateholders for
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer, any
Servicer, any Seller or the Special Servicer against any breach of
representations or warranties made by it herein or protect the Depositor, the
Master Servicer, any Servicer, any Seller or the Special Servicer or any such
director, officer, employee or agent from any liability which would otherwise
be imposed by reasons of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Depositor, the Master Servicer, any Servicer, any
Seller and the Special Servicer and any director, officer, employee or agent
of the Depositor, the Master Servicer, any Servicer, any Seller or the Special
Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, any Servicer, any Seller and
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer, any Servicer, any Seller or the Special
Servicer shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Master Servicer, any Servicer, any Seller or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal action that
is not incidental to their respective duties hereunder and which in its
opinion may involve it in any expense or liability; provided, however, that
the Depositor, the Master Servicer, any Servicer, any Seller or the Special
Servicer may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties
of the parties hereto and interests of the Trustee, the Trust Administrator
and the Certificateholders hereunder. Anything in this Agreement to the
contrary notwithstanding, in no event shall the
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Master Servicer or any Servicer or the Special Servicer be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Master Servicer or the related
Servicer or the Special Servicer has been advised of the likelihood of such
loss or damage and regardless of the form of action.
SECTION 7.04 Master Servicer and Servicer Not to Resign; Transfer of
Servicing.
(a) Neither the Master Servicer nor any Servicer shall resign from the
obligations and duties hereby imposed on it except (i) upon appointment of a
successor master servicer or successor servicer and receipt by the Trustee and
the Trust Administrator of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates related to the applicable Mortgage Loans, or (ii) upon
determination that its duties hereunder are no longer permissible under
applicable law. Any such determination under clause (ii) permitting the
resignation of the Master Servicer or a Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee and the Trust
Administrator. No such resignation shall become effective until the successor
master servicer or successor servicer shall have assumed the Master Servicer
or such Servicer's, as applicable, responsibilities, duties, liabilities and
obligations hereunder in accordance with Section 8.02 hereof.
(b) Notwithstanding the foregoing, DLJMC or its transferee shall be
entitled to request that the Master Servicer or a Servicer, other than WMMSC,
resign and appoint a successor master servicer or successor servicer, as
applicable; provided that such entity delivers to the Trustee and the Trust
Administrator the letter required in Section 7.04(a)(i) above.
SECTION 7.05 Master Servicer, Seller and Servicers May Own Certificates.
Each of the Master Servicer, each Seller, the Special Servicer and
each 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
the Master Servicer, a Seller, the Special Servicer or a Servicer.
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ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default.
"Event of Default", wherever used herein, and as to the Master
Servicer or any Servicer, means any one of the following events (whatever
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) any failure by the Master Servicer or a Servicer to remit to the
Certificateholders or to the Trust Administrator any payment other than an
Advance required to be made by the Master Servicer or such Servicer under the
terms of this Agreement, which failure shall continue unremedied for a period
of (i) in the case of the Master Servicer, WMMSC or Olympus, one Business Day,
or (ii) in the case of Cendant, three Business Days, in each case after the
date upon which written notice of such failure shall have been given to the
Master Servicer or such Servicer by the Trust Administrator or the Depositor
or to the Master Servicer or the related Servicer and the Trust Administrator
by the Holders of Certificates having not less than 25% of the Voting Rights
evidenced by the Certificates; or
(b) any failure by the Master Servicer or a Servicer to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Master Servicer or a Servicer contained in this Agreement
(except as set forth in (c) and (g) below) which failure (i) materially
affects the rights of the Certificateholders and (ii) shall continue
unremedied for a period of 60 days after the date on which written notice of
such failure shall have been given to the Master Servicer or such Servicer by
the Trust Administrator or the Depositor, or to the Master Servicer or a
Servicer and the Trust Administrator by the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates; or
(c) if a representation or warranty set forth in Section 2.03 hereof
made solely in its capacity as the Master Servicer or a Servicer shall prove
to be materially incorrect as of the time made in any respect that materially
and adversely affects interests of the Certificateholders, and the
circumstances or condition in respect of which such representation or warranty
was incorrect shall not have been eliminated or cured within 90 days after the
date on which written notice thereof shall have been given to the Master
Servicer or the related Servicer and the related Seller by the Trust
Administrator for the benefit of the Certificateholders or by the Depositor;
or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer or a Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
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(e) the Master Servicer or a 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 Master Servicer or such Servicer or all or substantially all
of the property of the Master Servicer or such Servicer; or
(f) the Master Servicer or a Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to
take advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations; or
(g) any failure of the Master Servicer or a Servicer to make any
Advance in the manner and at the time required to be made from its own funds
pursuant to this Agreement and after receipt of notice from the Trust
Administrator pursuant to Section 5.01, which failure continues unremedied
after 5 p.m., New York City time, on (i) in the case of the Master Servicer,
WMMSC or Olympus, the Business Day, or (ii) in the case of Cendant, on the
third Business Day, in each case immediately following the Master Servicer's
or such Servicer's receipt of such notice.
If an Event of Default due to the actions or inaction of the Master
Servicer or a Servicer described in clauses (a) through (f) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trust Administrator shall at the
direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights evidenced by the Certificates, by notice in writing to the
Master Servicer or such Servicer (with a copy to the Rating Agencies),
terminate all of the rights and obligations of the Master Servicer or such
Servicer under this Agreement (other than rights to reimbursement for Advances
and Servicing Advances previously made, as provided in Section 3.08).
If an Event of Default described in clause (g) shall occur, (i) if
the Master Servicer or WMMSC has failed to make any Advance, the Trust
Administrator, and (ii) if any Servicer, other than WMMSC, has failed to make
any Advance, the Master Servicer, shall prior to the next Distribution Date,
immediately make such Advance and terminate the rights and obligations of the
Master Servicer or applicable Servicer hereunder and succeed to the rights and
obligations of the Master Servicer or such Servicer, as applicable, hereunder
pursuant to Section 8.02, including the obligation to make Advances on such
succeeding Distribution Date pursuant to the terms hereof. No Event of Default
with respect to the Master Servicer or a Servicer shall affect the rights or
duties of any other Servicer or constitute an Event of Default as to any other
Servicer. [An Event of Default with respect to a Servicer other than WMMSC
shall be deemed to be an Event of Default with respect to the Master
Servicer.]
SECTION 8.02 Master Servicer or Trust Administrator to Act; Appointment
of Successor.
On and after the time the Master Servicer or a Servicer receives a
notice of termination pursuant to Section 8.01 hereof or resigns pursuant to
Section 7.04 hereof, subject to the provisions of Section 3.04 hereof, the
Trust Administrator (in the case of the Master Servicer or WMMSC), or the
Master Servicer (in the case of a Servicer other than WMMSC), shall be the
successor in all respects to the Master Servicer or such Servicer, as
applicable, in its capacity as
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servicer under this Agreement and with respect to the transactions set forth
or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer or such
Servicer, as applicable, by the terms and provisions hereof, provided that the
Trust Administrator, or the Master Servicer, as applicable, shall not be
deemed to have made any representation or warranty as to any Mortgage Loan
made by the Master Servicer or any Servicer, as applicable, and shall not
effect any repurchases or substitutions of any Mortgage Loan. As compensation
therefor, the Trust Administrator, or the Master Servicer, as applicable,
shall be entitled to all funds relating to the Mortgage Loans that the Master
Servicer or the related Servicer, as applicable, would have been entitled to
charge to the related Collection Account if the Master Servicer or such
Servicer, as applicable, had continued to act hereunder (except that the
terminated or resigning Servicer shall retain the right to be reimbursed for
advances (including, without limitation, Advances and Servicing Advances)
theretofore made by the Master Servicer or the related Servicer with respect
to which it would be entitled to be reimbursed as provided in Section 3.08 if
it had not been so terminated or resigned as Master Servicer or Servicer).
Notwithstanding the foregoing, if the Trust Administrator, or the Master
Servicer, as applicable, has become the successor to the Master Servicer or a
Servicer, as applicable, in accordance with this Section 8.02, the Trust
Administrator, or the Master Servicer, as applicable, may, if it shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition
a court of competent jurisdiction to appoint, any established mortgage loan
servicing institution, the appointment of which does not adversely affect the
then current rating of the Certificates, as the successor to the Master
Servicer or a Servicer, as applicable, hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer
or such Servicer, as applicable, provided that such successor to the Master
Servicer or a Servicer, as applicable, shall not be deemed to have made any
representation or warranty as to any Mortgage Loan made by the Master Servicer
or the related Servicer, as applicable. Pending appointment of a successor to
the Master Servicer or a Servicer, as applicable, hereunder, the Trust
Administrator, or the Master Servicer, as applicable, unless such party is
prohibited by law from so acting, shall act in such capacity as provided
herein. In connection with such appointment and assumption, the Trust
Administrator, or the Master Servicer, as applicable, may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted the Master Servicer
or the related Servicer, as applicable, hereunder. The Trust Administrator, or
the Master Servicer, as applicable, and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Trust Administrator, the Master Servicer nor any other
successor servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by the failure of the Master Servicer or applicable
Servicer to deliver, or any delay in delivering, cash, documents or records to
it.
A Master Servicer or a Servicer that has been terminated shall, at
the request of the Trust Administrator, or the Master Servicer, as applicable,
but at the expense of such Master Servicer or Servicer, as applicable, deliver
to the assuming party all documents and records relating to each Sub-Servicing
Agreement and the related Mortgage Loans and an accounting of amounts
collected and held by it and otherwise use commercially reasonable efforts to
effect the orderly and efficient transfer and assignment of each Sub-Servicing
Agreement, but only to the extent of the Mortgage Loans serviced thereunder,
to the assuming party. Notwithstanding
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anything to the contrary contained herein, the termination of the Master
Servicer or a Servicer under this Agreement shall not extend to any
Sub-Servicer meeting the requirements of Section 3.02(a) and otherwise
servicing the related Mortgage Loans in accordance with the servicing
provisions of this Agreement.
The Master Servicer and each Servicer shall cooperate with the Trust
Administrator and any successor servicer in effecting the termination of the
terminated Master Servicer or Servicer's, as applicable, responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be
credited by the Master Servicer or such Servicer, as applicable, to the
applicable Collection Account or thereafter received with respect to the
Mortgage Loans.
Neither the Trust Administrator nor any other successor servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or any delay in making, any distribution hereunder or any portion thereof
caused by (a) the failure of the Master Servicer or any Servicer to (i)
deliver, or any delay in delivering, cash, documents or records to it, (ii)
cooperate as required by this Agreement, or (iii) deliver the Mortgage Loan to
the Trust Administrator as required by this Agreement, or (b) restrictions
imposed by any regulatory authority having jurisdiction over the Master
Servicer or the related Servicer.
Any successor to the Master Servicer or a Servicer as servicer shall
during the term of its service as servicer maintain in force the policy or
policies that the Master Servicer or such Servicer is required to maintain
pursuant to Section 3.09(b) hereof.
SECTION 8.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to the Master
Servicer or any Servicer, the Trust Administrator shall give prompt written
notice thereof to DLJMC, and the Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating Agencies,
or, as applicable, the Master Servicer shall give prompt written notice
thereof to the Trust Administrator.
(b) Within two Business Days after the occurrence of any Event of
Default, the Trust Administrator shall transmit by mail to DLJMC and all
Certificateholders, and the Rating Agencies notice of each such Event of
Default hereunder known to the Trust Administrator, unless such Event of
Default shall have been cured or waived.
SECTION 8.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (g) of Section 8.01 may be waived, only by all of the
Holders of Certificates affected by such default or Event of Default and (b)
no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 12.01(b)(i), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of Default
shall cease to exist
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and shall be deemed to have been cured and remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
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ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default of which a Responsible Officer of the Trustee shall have actual
knowledge has occurred and remains uncured, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. Any
permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee shall
have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement, the
Trustee shall notify the Certificateholders of such instrument in the event
that the Trustee, after so requesting, does not receive a satisfactorily
corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct, its negligent failure to perform its obligations
in compliance with this Agreement, or any liability which would be imposed by
reason of its willful misfeasance or bad faith; provided, however, that:
(a) prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge, and after the
curing or of all such Events of Default that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be personally liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement which it reasonably
believed in good faith to be genuine and to have been duly executed by the
proper authorities respecting any matters arising hereunder;
(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;
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(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;
(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; and
(e) the Trustee shall have no responsibility for any act or omission of
the Trust Administrator, it being understood and agreed that the Trustee and
Trust Administrator are independent contractors and not agents, partners or
joint venturers.
Except with respect to an Event of Default described in clause (a)
of Section 8.01, the Trustee shall not be deemed to have knowledge of any
Event of Default or event which, with notice or lapse of time, or both, would
become an Event of Default, unless a Responsible Officer of the Trustee shall
have received written notice thereof from a Servicer, the Depositor, or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer or the related Servicer upon receipt of any such complaint, claim,
demand, notice or other document (i) which is delivered to the Corporate Trust
Office of the Trustee, (ii) of which a Responsible Officer has actual
knowledge, and (iii) which contains information sufficient to permit the
Trustee to make a determination that the real property to which such document
relates is a Mortgaged Property.
SECTION 9.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors, Servicing Officers or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
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(ii) the Trustee may consult with counsel, financial advisors
or accountants and any advice of such Persons or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge (which has
not been cured or waived), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default that may have
occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing greater than 50% of the Voting Rights
allocated to each Class of Certificates; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action; the
reasonable expense of every such investigation shall be paid (A) by the
Master Servicer or by the applicable Servicer in the event that such
investigation relates to an Event of Default by the Master Servicer or by
such Servicer, respectively, if an Event of Default by the Master
Servicer or by such Servicer shall have occurred and is continuing, and
(B) otherwise by the Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee 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
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have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement; and
(ix) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or the Master Servicer or a Servicer, as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement, the
Certificates or of any Mortgage Loan or related document. The Trustee shall
not be accountable for the use or application by the Depositor, any Seller,
the Master Servicer or any Servicers of any funds paid to the Depositor or the
Master Servicer or any Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor, the Sellers or
the Master Servicer or the Servicers. The Trustee shall not be responsible for
the legality or validity of this Agreement or the validity, priority,
perfection or sufficiency of the security for the Certificates issued or
intended to be issued hereunder. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to record this Agreement.
SECTION 9.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the other
parties hereto and with their Affiliates, with the same rights as it would
have if it were not the Trustee.
SECTION 9.05 Trustee's Fees and Expenses.
The Trustee shall be compensated by the Trust Administrator as
separately agreed. The Trustee and any director, officer, employee or agent of
the Trustee shall be indemnified by the Depositor and held harmless against
any loss, liability or expense (including reasonable attorney's fees and
expenses) (i) incurred in connection with any claim or legal action relating
to (a) this Agreement, (b) the Certificates, or (c) the performance of any of
the Trustee's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misconduct, bad faith or negligence in the
performance of any of the Trustee's duties hereunder
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or incurred by reason of any action of the Trustee taken at the direction of
the Certificateholders and (ii) resulting from any error in any tax or
information return prepared by the Master Servicer or a Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation
or removal of the Trustee hereunder. Without limiting the foregoing, the
Depositor covenants and agrees, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any such expense, disbursement
or advance as may arise from the Trustee's negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that
the Trustee must engage such persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided herein, the Trustee
shall not be entitled to payment or reimbursement for any routine ongoing
expenses incurred by the Trustee in the ordinary course of its duties as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses. Anything in this Agreement to the contrary notwithstanding, in
no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.
SECTION 9.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having ratings on its long-term debt obligations at the time of
such appointment in at least the third highest rating category by both Xxxxx'x
or S&P or such lower ratings as will not cause Xxxxx'x or S&P to lower their
then-current ratings of the Class A Certificates, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 9.07 hereof.
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,
DLJMC, the Trust Administrator, the Master Servicer, the Special Servicer and
the Servicers and by mailing notice of resignation by first class mail,
postage prepaid, to the Certificateholders at their addresses appearing on the
Certificate Register, and to the Rating Agencies, not less than 60 days before
the date specified in such notice when, subject to Section 9.08, such
resignation is to take effect,
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and (b) acceptance by a successor trustee in accordance with Section 9.08
meeting the qualifications set forth in Section 9.06.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation or if
the Trustee breaches any of its obligations or representations hereunder, then
the Depositor may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee and one copy to the successor trustee. The Trustee
may also be removed at any time by the Holders of Certificates evidencing not
less than 50% of the Voting Rights evidenced by the Certificates. Notice of
any removal of the Trustee and acceptance of appointment by the successor
trustee shall be given to the Rating Agencies by the Depositor.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for the
appointment of a successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.08 hereof.
SECTION 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, upon receipt of all amounts due it hereunder, and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 9.06 hereof and its
acceptance shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown
in the Certificate Register. If the Depositor fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
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SECTION 9.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 9.06 hereof without the execution or filing of any paper
or further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer or the Servicers and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Fund, and to vest in such Person or
Persons, in such capacity and for the benefit of the applicable
Certificateholders, such title to the Trust Fund, or any part thereof, and,
subject to the other provisions of this Section 9.10, such powers, duties,
obligations, rights and trusts as the Master Servicer or the Servicers and the
Trustee may consider necessary or desirable. If the Master Servicer or the
Servicers shall not have joined in such appointment within fifteen days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
9.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 9.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for any obligation of the Trustee under this
Agreement to advance funds on behalf of the Master Servicer or a 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 Master Servicer
or a 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
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(c) the Master Servicer or the Servicers and the Trustee acting jointly
may at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer or the Servicers and
the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. The Trust Administrator shall not be
responsible for all action or inaction of any separate trustee or co-trustee.
If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent permitted
by law, without the appointment of a new or successor trustee.
SECTION 9.11 Office of the Trustee.
The office of the Trustee for purposes of receipt of notices and
demands is the Corporate Trust Office.
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ARTICLE X
CONCERNING THE TRUST ADMINISTRATOR
SECTION 10.01 Duties of Trust Administrator.
The Trust Administrator, prior to the occurrence of an Event of
Default of which a Responsible Officer of the Trust Administrator shall have
actual knowledge and after the curing or waiver of all Events of Default that
may have occurred, undertakes with respect to the Trust Fund to perform such
duties and only such duties as are specifically set forth in this Agreement.
In case an Event of Default of which a Responsible Officer of the Trust
Administrator shall have actual knowledge has occurred and remains uncured,
the Trust Administrator shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs. Any permissive right of the Trust
Administrator set forth in this Agreement shall not be construed as a duty.
The Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trust Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they conform to the requirements of this
Agreement. The Trust Administrator shall have no duty to recompute,
recalculate or verify the accuracy of any resolution, certificate, statement,
opinion, report, document, order or other instrument so furnished to the Trust
Administrator. If any such instrument is found not to conform in any material
respect to the requirements of this Agreement, the Trust Administrator shall
notify the Certificateholders of such instrument in the event that the Trust
Administrator, after so requesting, does not receive a satisfactorily
corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct, its negligent failure to
perform its obligations in compliance with this Agreement, or any liability
which would be imposed by reason of its willful misfeasance or bad faith;
provided, however, that:
(a) prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trust Administrator shall have actual knowledge,
and after the curing or of all such Events of Default that may have occurred,
the duties and obligations of the Trust Administrator shall be determined
solely by the express provisions of this Agreement, the Trust Administrator
shall not be personally liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trust
Administrator and the Trust Administrator may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trust Administrator and
conforming to the requirements of this Agreement which it reasonably believed
in good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
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(b) the Trust Administrator shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trust Administrator, unless the Trust Administrator was
negligent in ascertaining or investigating the pertinent facts;
(c) the Trust Administrator shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith in
accordance with this Agreement or at the direction of the Holders of
Certificates evidencing greater than 50% of the Voting Rights allocated to
each Class of Certificates relating to the time, method and place of
conducting any proceeding for any remedy available to the Trust Administrator,
or exercising any trust or power conferred upon the Trust Administrator, under
this Agreement; and
(d) no provision of this Agreement shall require the Trust
Administrator to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
The Trust Administrator shall have no duty (A) to see to any
recording, filing or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording, filing
or depositing or to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, or (C) to see to the payment or discharge of any
tax, assessment or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund other than from funds available in the Certificate Account.
Except with respect to an Event of Default described in clause (a)
of Section 8.01, the Trust Administrator shall not be deemed to have knowledge
of any Event of Default or event which, with notice or lapse of time, or both,
would become an Event of Default, unless a Responsible Officer of the Trust
Administrator shall have received written notice thereof from the Master
Servicer or a Servicer, the Depositor, or a Certificateholder, or a
Responsible Officer of the Trust Administrator has actual notice thereof, and
in the absence of such notice no provision hereof requiring the taking of any
action or the assumption of any duties or responsibility by the Trust
Administrator following the occurrence of any Event of Default or event which,
with notice or lapse of time or both, would become an Event of Default, shall
be effective as to the Trust Administrator.
The Trust Administrator shall have no duty hereunder with respect to
any complaint, claim, demand, notice or other document it may receive or which
may be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trust Administrator shall use its best efforts to remit to
the Master Servicer or the related Servicer upon receipt of any such
complaint, claim, demand, notice or other document (i) which is delivered to
the Corporate Trust Office of the Trust Administrator, (ii) of which a
Responsible Officer has actual knowledge, and (iii) which contains information
sufficient to permit the Trust Administrator to make a determination that the
real property to which such document relates is a Mortgaged Property.
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SECTION 10.02 Certain Matters Affecting the Trust Administrator.
(a) Except as otherwise provided in Section 10.01:
(i) the Trust Administrator may request and rely upon and shall
be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors, Servicing Officers or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Trust Administrator may consult with counsel,
financial advisors or accountants and any advice of such Persons or
opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion of
counsel;
(iii) the Trust Administrator shall be under no obligation to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trust Administrator
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trust Administrator of the obligation,
upon the occurrence of an Event of Default of which a Responsible Officer
of the Trust Administrator shall have actual knowledge (which has not
been cured or waived), to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) the Trust Administrator shall not be personally liable for
any action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default that may have
occurred, the Trust Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing
greater than 50% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Trust Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trust Administrator, not reasonably assured to the
Trust Administrator by the security afforded to it by the terms of this
Agreement, the Trust Administrator may require reasonable indemnity
against such expense or liability as a condition to taking any such
action; the reasonable expense of every such investigation shall be paid
(A) by the Master Servicer or by the applicable
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Servicer in the event that such investigation relates to an Event of
Default by the Master Servicer or by such Servicer, respectively, if an
Event of Default by the Master Servicer or such Servicer shall have
occurred and is continuing, and (B) otherwise by the Certificateholders
requesting the investigation;
(vi) the Trust Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trust Administrator shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care;
(vii) the Trust Administrator shall not be required to expend
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) the Trust Administrator shall not be liable for any loss
on any investment of funds pursuant to this Agreement except as provided
in Section 3.05(e);
(ix) the right of the Trust Administrator to perform any
discretionary act enumerated in this Agreement shall not be construed as
a duty, and the Trust Administrator shall not be answerable for other
than its negligence or willful misconduct in the performance of such act;
and
(x) The Trust Administrator shall not be required to give any
bond or surety in respect of the execution of the Trust Fund created
hereby or the powers granted hereunder.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trust Administrator, may be enforced by it
without the possession of any of the Certificates, or the production thereof
at the trial or other proceeding relating thereto, and any such suit, action
or proceeding instituted by the Trust Administrator shall be brought in its
name for the benefit of all the Holders of such Certificates, subject to the
provisions of this Agreement.
SECTION 10.03 Trust Administrator Not Liable for Certificates or Mortgage
Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or the Master Servicer or a Servicer, as the case may be, and
the Trust Administrator assumes no responsibility for their correctness. The
Trust Administrator makes no representations as to the validity or sufficiency
of this Agreement, the Certificates or of any Mortgage Loan or related
document. The Trust Administrator shall not be accountable for the use or
application by the Depositor, any Seller, the Master Servicer or the Servicers
of any funds paid to the Depositor or the Master Servicer or any Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the
Certificate Account by the Depositor, the Sellers or the Master Servicer or
the Servicers. The Trust Administrator shall not be responsible for the
legality or validity of this Agreement or the validity, priority, perfection
or sufficiency of the security for the Certificates issued or intended to be
issued hereunder. The Trust Administrator shall have no responsibility
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for filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection for any security
interest or lien granted to it hereunder or to record this Agreement.
SECTION 10.04 Trust Administrator May Own Certificates.
The Trust Administrator in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights as it would
have if it were not the Trust Administrator.
SECTION 10.05 Trust Administrator's Fees and Expenses.
The Trust Administrator and any director, officer, employee or agent
of the Trust Administrator shall be indemnified by DLJMC and held harmless (up
to a maximum of $150,000) against any loss, liability or expense (including
reasonable attorney's fees and expenses) (i) incurred in connection with any
claim or legal action relating to (a) this Agreement, (b) the Certificates,
(c) the Custodial Agreement, or (d) the performance of any of the Trust
Administrator's duties hereunder or under the Custodial Agreement, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of any of the Trust Administrator's
duties hereunder or incurred by reason of any action of the Trust
Administrator taken at the direction of the Certificateholders and (ii)
resulting from any error in any tax or information return prepared by the
Master Servicer or a Servicer. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trust Administrator
hereunder. Without limiting the foregoing, DLJMC covenants and agrees, except
as otherwise agreed upon in writing by DLJMC and the Trust Administrator, and
except for any such expense, disbursement or advance as may arise from the
Trust Administrator's negligence, bad faith or willful misconduct, to pay or
reimburse the Trust Administrator (up to a maximum of $150,000), for all
reasonable expenses, disbursements and advances incurred or made by the Trust
Administrator in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer or appraiser that is not regularly employed by the
Trust Administrator, to the extent that the Trust Administrator must engage
such persons to perform acts or services hereunder and (C) printing and
engraving expenses in connection with preparing any Definitive Certificates.
In addition, DLJMC covenants and agrees, to pay or reimburse the Trust
Administrator for recertification fees required to be paid by the Trust
Administrator pursuant to a Custodial Agreement. 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 April 1, 2002 by and among Bank One,
National Association, as Trustee, JPMorgan Chase Bank, as Trust Administrator,
and State Street Bank & Trust Company, as Custodian. Except as otherwise
provided herein, the Trust Administrator shall not be entitled to payment or
reimbursement for any routine ongoing expenses incurred by the Trust
Administrator in the ordinary course of its duties as Trust Administrator,
Registrar, Tax Matters Person or Paying Agent hereunder or for any other
expenses. Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trust Administrator be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits),
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even if the Trust Administrator has been advised of the likelihood of such
loss or damage and regardless of the form of action.
SECTION 10.06 Eligibility Requirements for Trust Administrator.
The Trust Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws of any
state or the United States of America, authorized under such laws to exercise
corporate trust powers, having ratings on its long-term debt obligations at
the time of such appointment in at least the third highest rating category by
both Xxxxx'x and S&P or such lower ratings as will not cause Xxxxx'x or S&P to
lower their then-current ratings of the Class A Certificates, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or association publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 10.06 the combined capital
and surplus of such corporation or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trust Administrator shall
cease to be eligible in accordance with the provisions of this Section 10.06,
the Trust Administrator shall resign immediately in the manner and with the
effect specified in Section 10.07 hereof.
SECTION 10.07 Resignation and Removal of Trust Administrator.
The Trust Administrator may at any time resign and be discharged
from the trusts hereby created by (a) giving written notice of resignation to
the Depositor, DLJMC, the Trustee, the Master Servicer, the Special Servicer
and the Servicers and by mailing notice of resignation by first class mail,
postage prepaid, to the Certificateholders at their addresses appearing on the
Certificate Register, and to the Rating Agencies, not less than 60 days before
the date specified in such notice when, subject to Section 10.08, such
resignation is to take effect, and (b) acceptance by a successor trust
administrator in accordance with Section 10.08 meeting the qualifications set
forth in Section 10.06.
If at any time the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 10.06 hereof and shall fail to
resign after written request thereto by the Depositor, or if at any time the
Trust Administrator shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trust Administrator or of its
property shall be appointed, or any public officer shall take charge or
control of the Trust Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation or if the Trust
Administrator breaches any of its obligations or representations hereunder,
then the Depositor may remove the Trust Administrator and appoint a successor
trust administrator by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trust Administrator and one copy to the
successor trust administrator. The Trust Administrator may also be removed at
any time by the Trustee or the Holders of Certificates evidencing not less
than 50% of the Voting Rights evidenced by the Certificates. Notice of any
removal of the Trust Administrator and acceptance of appointment by the
successor trust administrator shall be given to the Rating Agencies by the
Depositor.
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If no successor trust administrator shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trust
Administrator may, at the Trust Fund's expense, petition any court of
competent jurisdiction for the appointment of a successor trust administrator.
Any resignation or removal of the Trust Administrator and
appointment of a successor trust administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance of
appointment by the successor trust administrator as provided in Section 10.08
hereof.
SECTION 10.08 Successor Trust Administrator.
Any successor trust administrator appointed as provided in Section
10.07 hereof shall execute, acknowledge and deliver to the Depositor and to
its predecessor trust administrator an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trust
administrator shall become effective and such successor trust administrator,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as trust administrator herein. The
Depositor, upon receipt of all amounts due it hereunder, and the predecessor
trust administrator shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trust administrator all such rights,
powers, duties, and obligations.
No successor trust administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor trust administrator shall be eligible under the provisions of
Section 10.06 hereof and its acceptance shall not adversely affect the then
current rating of the Certificates.
Upon acceptance of appointment by a successor trust administrator as
provided in this Section 10.08, the Depositor shall mail notice of the
succession of such trust administrator hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within ten days after acceptance of
appointment by the successor trust administrator, the successor trust
administrator shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 10.09 Merger or Consolidation of Trust Administrator.
Any Person into which the Trust Administrator may be merged or
converted or with which it may be consolidated or any Person resulting from
any merger, conversion or consolidation to which the Trust Administrator shall
be a party, or any Person succeeding to the business of the Trust
Administrator, shall be the successor of the Trust Administrator hereunder,
provided that such Person shall be eligible under the provisions of Section
10.06 hereof without the execution or filing of any paper or further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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SECTION 10.10 Appointment of Co-Trust Administrator or Separate Trust
Administrator.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer or the Servicers and the Trust
Administrator acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trust
Administrator to act as co-trust administrator or co-trust administrators
jointly with the Trust Administrator, or separate trust administrator or
separate trust administrators, of all or any part of the Trust Fund, and to
vest in such Person or Persons, in such capacity and for the benefit of the
applicable Certificateholders, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 10.10, such
powers, duties, obligations, rights and trusts as the Master Servicer or the
Servicers and the Trust Administrator may consider necessary or desirable. If
the Master Servicer or the Servicers shall not have joined in such appointment
within fifteen days after the receipt by it of a request to do so, or in the
case an Event of Default shall have occurred and be continuing, the Trust
Administrator alone shall have the power to make such appointment. No co-trust
administrator or separate trust administrator hereunder shall be required to
meet the terms of eligibility as a successor trust administrator under Section
10.06 and no notice to Certificateholders of the appointment of any co-trust
administrator or separate trust administrator shall be required under Section
10.08.
Every separate trust administrator and co-trust administrator shall,
to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trust Administrator, except for any obligation of the Trust
Administrator under this Agreement to advance funds on behalf of the Master
Servicer or a Servicer, shall be conferred or imposed upon and exercised or
performed by the Trust Administrator and such separate trust administrator or
co-trust administrator jointly (it being understood that such separate trust
administrator or co-trust administrator is not authorized to act separately
without the Trust Administrator joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed by the Trust Administrator (whether as Trust Administrator
hereunder or as successor to the Master Servicer or a Servicer), the Trust
Administrator shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trust
administrator or co-trust administrator, but solely at the direction of the
Trust Administrator;
(b) no trust administrator hereunder shall be held personally liable by
reason of any act or omission of any other trust administrator hereunder; and
(c) the Master Servicer or the Servicers and the Trust Administrator
acting jointly may at any time accept the resignation of or remove any
separate trust administrator or co-trust administrator.
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Any notice, request or other writing given to the Trust
Administrator shall be deemed to have been given to each of the then separate
trust administrators and co-trust administrators, as effectively as if given
to each of them. Every instrument appointing any separate trust administrator
or co-trust administrator shall refer to this Agreement and the conditions of
this Article X. Each separate trust administrator and co-trust administrator,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trust Administrator or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trust Administrator. Every such instrument shall
be filed with the Trust Administrator and a copy thereof given to the Master
Servicer or the Servicers and the Depositor.
Any separate trust administrator or co-trust administrator may, at
any time, constitute the Trust Administrator, its agent or attorney-in-fact,
with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Agreement on its behalf and in its
name. The Trust Administrator shall not be responsible for any action or
inaction of any separate Trust Administrator or Co-Trust Administrator. If any
separate trust administrator or co-trust administrator shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trust
Administrator, to the extent permitted by law, without the appointment of a
new or successor trust administrator.
SECTION 10.11 Office of the Trust Administrator.
The office of the Trust Administrator for purposes of receipt of
notices and demands is the Corporate Trust Office.
SECTION 10.12 Tax Return.
The Master Servicer and each Servicer, upon request, will furnish
the Trust Administrator with all such information related to the Mortgage
Loans in the possession of the Master Servicer or such Servicer as may be
reasonably required in connection with the preparation by the Trust
Administrator of all tax and information returns of the Trust Fund, and the
Trust Administrator shall sign such returns. The Master Servicer and each
Servicer, severally and not jointly, shall indemnify the Trust Administrator
for all reasonable costs, including legal fees and expenses, related to errors
in such tax returns due to errors only in such information provided by the
Master Servicer or by such Servicer.
SECTION 10.13 Filings.
The Trust Administrator shall, on behalf of the Trust, cause to be
filed with the Securities and Exchange Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder. In connection with the preparation and filing of such
periodic reports, the Depositor and the Master Servicer and each Servicer
shall timely provide to the Trust Administrator all material information
requested by the Trust Administrator and reasonably available to them which is
required to be included in such reports.
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The Trust Administrator shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to
the Trust Administrator's inability or failure to obtain any information not
resulting from its own negligence or willful misconduct.
SECTION 10.14 Determination of Certificate Index.
On each Interest Determination Date, the Trust Administrator shall
determine the Certificate Index for the Accrual Period and inform the Master
Servicer and each Servicer of such rate.
ARTICLE XI
TERMINATION
SECTION 11.01 Termination upon Liquidation or Purchase of all Mortgage
Loans.
The obligations and responsibilities of the Master Servicer, the
Special Servicer or the Servicers, the Sellers, the Depositor, the Trustee and
the Trust Administrator created hereby with respect to the related Group or
Groups created hereby shall terminate upon the earlier of:
(i) with respect to Loan Group I, Loan Group II, Loan Group III
and Loan Group IV, the purchase by the Terminating Entity at its
election, of all Mortgage Loans in Loan Group I, Loan Group II, Loan
Group III and Loan Group IV and all property acquired in respect of any
Mortgage Loan remaining in such Loan Group I, Loan Group II, Loan Group
III and Loan Group IV, which purchase right the Terminating Entity may
exercise at its sole and exclusive election as of any Distribution Date
(such applicable Distribution Date with respect to Loan Group I, Loan
Group II, Loan Group III and Loan Group IV being herein referred to as
the "Optional Termination Date") on or after the date on which the
aggregate Principal Balance of the Mortgage Loans in Loan Group I, Loan
Group II, Loan Group III and Loan Group IV at the time of the purchase is
equal to 5% or less of the aggregate Principal Balance of the Mortgage
Loans in Loan Group I, Loan Group II, Loan Group III and Loan Group IV as
of the Cut-off Date;
(ii) with respect to Loan Group V, the purchase by the
Terminating Entity at its election, of all Mortgage Loans in Loan Group V
and all property acquired in respect of any Mortgage Loan remaining in
Loan Group V, which purchase right the Terminating Entity may exercise at
its sole and exclusive election as of any Distribution Date (such
applicable Distribution Date with respect to Loan Group V, being herein
referred to as the "Optional Termination Date") on or after the date on
which the aggregate Principal Balance of the Mortgage Loans in Loan Group
V, at the time of the purchase is equal to 5% or less of the aggregate
Principal Balance of the Mortgage Loans in Loan Group V as of the Cut-off
Date; and
(iii) the later of (i) twelve months after the maturity of the
last Mortgage Loan remaining in the Trust Fund, (ii) the liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in
the Trust Fund and the disposition of all REO
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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 May 2032.
The Mortgage Loan Purchase Price for any such Optional Termination
shall be equal to the sum of (i) 100% of the Stated Principal Balance of each
Mortgage Loan in the applicable Loan Groups (other than in respect of REO
Property) plus accrued and unpaid interest thereon from the date to which such
interest was paid or advanced at the sum of the applicable Mortgage Rate, to
but not including the Due Date in the month of the final Distribution Date (or
the Net Mortgage Rate with respect to any Mortgage Loan currently serviced by
the entity exercising such Optional Termination) and (ii) with respect to any
REO Property, the lesser of (x) the appraised value of any REO Property as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Depositor at the expense of the Depositor and (y)
the Stated Principal Balance of each Mortgage Loan in the related Loan Groups
related to any REO Property, in each case and (iii) any remaining unreimbursed
Advances, Servicing Advances and Servicing Fees.
SECTION 11.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section 11.01, the
Terminating Entity shall, at least twenty days prior to the date notice is to
be mailed to the affected Certificateholders notify the Trustee and Trust
Administrator of such Optional Termination Date and of the applicable purchase
price of the Mortgage Loans to be purchased. The Trust Administrator shall
give notice to the Rating Agencies of election to purchase the Mortgage Loans
pursuant to Section 11.01 hereof and of the Optional Termination Date.
(b) Any purchase of the Mortgage Loans by the Terminating Entity 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 purchase is effected. Upon receipt by the Trust
Administrator of an Officer's Certificate of the Terminating Entity certifying
as to the deposit of such purchase price into the Certificate Account, the
Trust Administrator and each co-trust administrator and separate trust
administrator, if any, then acting as such under this Agreement, shall, upon
request and at the expense of the Terminating Entity execute and deliver all
such instruments of transfer or assignment, in each case without recourse, as
shall be reasonably requested by the Terminating Entity to vest title in the
Terminating Entity in the Mortgage Loans so purchased and shall transfer or
deliver to the Terminating Entity 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 the Terminating Entity.
(c) Notice of the Distribution Date on which the Master Servicer or a
Servicer anticipates that the final distribution shall be made (whether upon
Optional Termination or
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otherwise), shall be given promptly by the Master Servicer or such Servicer to
the Trust Administrator and by the Trust Administrator by first class mail to
Holders of the affected Certificates. Such notice shall be mailed no earlier
than the 15th day and not later than the 10th day preceding the applicable
Optional Termination Date or date of final distribution, as the case may be.
Such notice shall specify (i) the Distribution Date upon which final
distribution on the affected Certificates will be made upon presentation and
surrender of such Certificates at the office or agency therein designated,
(ii) the amount of such final distribution and (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable, such
distribution being made only upon presentation and surrender of such
Certificates at the office or agency maintained for such purposes (the address
of which shall be set forth in such notice).
(d) In the event that any Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trust Administrator shall give a
second written notice to the remaining such Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within six months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Trust
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain subject to the Trust Fund.
(e) Notwithstanding anything to the contrary herein, the occurrence of
an Optional Termination shall be subject to, and shall in no way adversely
affect, the right of WMMSC to continue servicing and collecting its Servicing
Fee for any WMMSC Serviced Mortgage Loan that remains outstanding at the time
of such Optional Termination.
SECTION 11.03 Additional Termination Requirements.
(a) In the event the Terminating Entity exercises its purchase option
pursuant to Section 11.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee and the Trust
Administrator 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 any REMIC created
hereunder, as described in Section 860F of the Code, or (ii) cause any REMIC
created hereunder 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 Terminating Entity under Section 11.02, the Holder of the
Class AR Certificates shall adopt a plan of complete liquidation of Subsidiary
REMIC 1 or Subsidiary REMIC 2, as applicable; and
(ii) at or after the time of adoption of any such plan of complete
liquidation for Subsidiary REMIC 1 or Subsidiary REMIC 2, as applicable, at or
prior to the final Distribution Date, the Trustee shall sell all of the assets
of Subsidiary REMIC 1 or Subsidiary REMIC 2, as applicable, to Terminating
Entity 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
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to the final Distribution Date, the Trustee shall not sell any of the assets
of such REMIC prior to the close of that calendar quarter.
(b) Upon the exercise of an Optional Termination by Terminating Entity
in respect of one Subsidiary REMIC pursuant to paragraph (a) of this Section,
followed by the exercise of an Optional Termination in respect of the other
Subsidiary REMIC (the "Second Subsidiary REMIC") pursuant to Section 11.01,
the Master REMIC shall be terminated in accordance with the following
additional requirements, unless the Trustee and the Trust Administrator 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 any REMIC created herunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) concurrently with the adoption of the plan of complete
liquidation of the Second Subsidiary REMIC, as set forth in paragraph (a)
of this Section, the Holder of the Class AR Certificates shall adopt a
plan of complete liquidation of the Master REMIC; and
(ii) at or after the time of adoption of any such plan of
complete liquidation for the Master REMIC, at or prior to the final
Distribution Date of the Second Subsidiary REMIC to be terminated, the
Trustee shall sell all of the assets of the Master REMIC to Terminating
Entity 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 Master REMIC prior to the close of that
calendar quarter.
(c) 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 Master REMIC, Subsidiary REMIC 1 or
Subsidiary REMIC 2, as applicable.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Servicers, the Special Servicer, the Sellers, the
Trust Administrator and the Trustee, without the consent of any of the
Certificateholders,
(i) to cure any error or ambiguity,
(ii) to correct or supplement any provisions herein that may be
inconsistent with any other provisions herein or in the Prospectus
Supplement,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the
qualification of the Trust Fund as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund pursuant to the Code that would
be a claim against the Trust Fund, provided that the Trustee has received
an Opinion of Counsel to the effect that (A) such action is necessary or
desirable to maintain such qualification or to avoid or minimize the risk
of the imposition of any such tax and (B) such action will not adversely
affect the status of the Trust Fund as a REMIC or adversely affect in any
material respect the interests of any Certificateholder,
(iv) in connection with the appointment of a successor
servicer, to modify, eliminate or add to any of the servicing provisions,
provided the Rating Agencies confirm the rating of the Certificates; or
(v) to make any other provisions with respect to matters or
questions arising under this Agreement that are not materially
inconsistent with the provisions of this Agreement, provided that such
action shall not adversely affect in any material respect the interests
of any Certificateholder or cause an Adverse REMIC Event.
(b) This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Servicers, the Special Servicer, the Sellers, the
Trust Administrator and the Trustee with the consent of the Holders of
Certificates evidencing, in the aggregate, not less than 66-2/3% of the Voting
Rights of all the Certificates for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of the Certificates;
provided, however, that no such amendment may (i) reduce in any manner the
amount of, delay the timing of or change the manner in which payments received
on or with respect to Mortgage Loans are required to be distributed with
respect to any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of a Class of Certificates in a manner other than as set forth in
(i) above without the consent of the Holders of Certificates evidencing not
less than 66-2/3% of the Voting Rights of such Class, (iii) reduce the
aforesaid percentages of Voting Rights, the holders of which are required to
consent to any such
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amendment without the consent of 100% of the Holders of Certificates of the
Class affected thereby, (iv) change the percentage of the Stated Principal
Balance of the Mortgage Loans specified in Section 11.01(a) relating to
optional termination of the Trust Fund or (v) modify the provisions of this
Section 12.01.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trust Administrator may prescribe.
(c) Promptly after the execution of any amendment to this Agreement,
the Trust Administrator shall furnish written notification of the substance of
such amendment to each Certificateholder, and the Rating Agencies.
(d) Prior to the execution of any amendment to this Agreement, each of
the Trustee and the Trust Administrator shall receive and be entitled to
conclusively rely on an Opinion of Counsel (at the expense of the Person
seeking such amendment) stating that the execution of such amendment is
authorized and permitted by this Agreement. The Trustee and the Trust
Administrator may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's or the Trust Administrator's own rights,
duties or immunities under this Agreement.
SECTION 12.02 Recordation of Agreement; Counterparts.
(a) This Agreement (other than Schedule I) is subject to recordation in
all appropriate public offices for real property records in all the counties
or other comparable jurisdictions in which any or all of the Mortgaged
Properties are situated, and in any other appropriate public recording office
or elsewhere. Such recordation, if any, shall be effected by the related
Servicer at its expense.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
SECTION 12.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
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SECTION 12.04 Intention of Parties.
(a) It is the express intent of the Depositor, the Sellers, the Master
Servicer, the Servicers, the Special Servicer, the Trust Administrator and the
Trustee that (i) the conveyance by Cendant of the Cendant Mortgage Loans to
DLJMC, and by DLJMC of the Mortgage Loans to the Depositor pursuant to the
Assignment and Assumption Agreement and (ii) the conveyance by the Depositor
to the Trustee as provided for in Section 2.01 of each of DLJMC's and the
Depositor's right, title and interest in and to the Mortgage Loans be, and be
construed as, an absolute sale and assignment by Cendant to DLJMC of the
Cendant 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 Cendant to DLJMC, and 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 Cendant, DLJMC or
the Depositor, as applicable, or if for any reason the Assignment and
Assumption Agreement or this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Articles
8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial
Code of any other applicable jurisdiction; (ii) the conveyances provided for
in Section 2.01 shall be deemed to be a grant by the Sellers and the Depositor
to the Trustee on behalf of the Certificateholders, to secure payment in full
of the Secured Obligations (as defined below), of a security interest in all
of the Sellers' and the Depositor's right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and
to the Mortgage Loans, including the Mortgage Notes, the Mortgages, any
related insurance policies and all other documents in the related Mortgage
Files, and all accounts, contract rights, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit and uncertificated securities
consisting of, arising from or relating to (A) the Mortgage Loans, including
with respect to each Mortgage Loan, the Mortgage Note and related Mortgage,
and all other documents in the related Trustee Mortgage Files, and including
any Qualified Substitute Mortgage Loans; (B) pool insurance policies, hazard
insurance policies and any bankruptcy bond relating to the foregoing, if
applicable; (C) the Certificate Account; (D) the Collection Account; (E) all
amounts payable after the Cut-off Date to the holders of the Mortgage Loans in
accordance with the terms thereof; (F) all income, payments, proceeds and
products of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts from time to time held or invested in the Certificate Account,
whether in the form of cash, instruments, securities or other property; and
(G) all cash and non-cash proceeds of any of the foregoing; (iii) the
possession by the Trustee or any other agent of the Trustee of Mortgage Notes
or such other items of property as constitute instruments, money, documents,
advices of credit, letters of credit, goods, certificated securities or
chattel paper shall be deemed to be a "possession by the secured party", or
possession by a purchaser or a person designated by him or her, for purposes
of perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 8-106, 8-301, 9-106, 9-313 and 9-314,
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
147
for the purpose of perfecting such security interest under applicable law.
"Secured Obligations" means (i) the rights of each Certificateholder to be
paid any amount owed to it under this Agreement and (ii) all other obligations
of each Seller and the Depositor under this Agreement and the Assignment and
Assumption Agreement.
(b) Each Seller and the Depositor, and, at the Depositor's direction,
the Master Servicer or the Servicers, the Trustee and the Trust Administrator,
shall, to the extent consistent with this Agreement, take such reasonable
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans and the other property
described above, such security interest would be deemed to be a perfected
security interest of first priority as applicable. The Depositor shall prepare
and file, at the related Servicer's expense, all filings necessary to maintain
the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Mortgage Loans, including without
limitation (i) continuation statements, and (ii) such other statements as may
be occasioned by any transfer of any interest of the Master Servicer or any
Servicer or the Depositor in any Mortgage Loan.
SECTION 12.05 Notices.
In addition to other notices provided under this Agreement, the
Trust Administrator shall notify the Rating Agencies in writing: (a) of any
substitution of any Mortgage Loan; (b) of any payment or draw on any insurance
policy applicable to the Mortgage Loans; (c) of the final payment of any
amounts owing to a Class of Certificates; (d) any Event of Default under this
Agreement; and (e) in the event any Mortgage Loan is purchased 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, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X.
Xxxxxxx (with a copy to DLJ Mortgage Acceptance Corp., 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx); (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: Xxxxx
Xxxxxxxxx), or such other address as may be hereafter furnished to the
Depositor and the Trustee by DLJMC in writing; (iv) in the case of Cendant,
0000 Xxxxxxxxxx Xxxx, Xx. Xxxxxx, Xxx Xxxxxx 00000, attention: [Cendant please
provide], or such other address as may be hereafter furnished in writing to
the Depositor and the Trustee by Cendant; (v) in the case of Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxxx Xxxxxxxxx; (vi) 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; (vii) in the case of Olympus, Olympus Servicing, L.P., 0000 Xxxxx
Xxxxx Xxxxx, Xxxxx 000-X, Xxxxxx, Xxxxx, Attention: Xxxx Xxxx; (viii) in the
case of the Master Servicer, 0000 Xxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx Xxxxx,
Xxxxxxx 00000, or such other address as may be hereafter furnished in writing
to the Depositor and the Trustee by the Master Servicer; (ix) in the case of
WMMSC, 1201 Third Avenue, WMT 1706, Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Servicing Compliance, with a copy
148
to Washington Mutual Legal Department, 0000 Xxxxx Xxxxxx, XXX 0000, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: WMMSC, or such other address as may be hereafter
furnished in writing to the Depositor and the Trustee by WMMSC; and (x) in the
case of the Trust Administrator, the Corporate Trust Office. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid.
SECTION 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 12.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Certificates
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trust
Administrator a written notice of an Event of Default and of the continuance
thereof, as provided herein, and unless the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates shall
also have made written request upon the Trust Administrator to institute such
action, suit or proceeding in its own name as Trust Administrator hereunder
and shall have offered to the Trust Administrator such reasonable indemnity as
it may require against the costs, expenses, and liabilities to be incurred
therein or thereby, and the Trust Administrator, for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Trust Administrator, that no one or more
Holders of Certificates shall have any right in any manner whatever by virtue
or by availing itself or themselves of any provisions of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and
149
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 Trust Administrator shall be entitled to such relief
as can be given either at law or in equity.
SECTION 12.08 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Trust Administrator pursuant to this Agreement, are and shall
be deemed fully paid.
SECTION 12.09 Protection of Assets.
Except for transactions and activities entered into in connection
with the securitization that is the subject of this agreement, the trust
created by this agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii) engage in any business or activities.
Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after the Certificates have been paid.
150
IN WITNESS WHEREOF, the Depositor, the Sellers, the Master Servicer,
the Servicers, the Special Servicer, the Trustee and the Trust Administrator
have caused their names to be signed hereto by their respective officers
thereunto duly authorized all as of the first day of April, 2002.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
DLJ MORTGAGE CAPITAL, INC.,
as a Seller
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CENDANT MORTGAGE CORPORATION,
as a Seller and a Servicer
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP.,
as a Servicer
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
151
CHASE MANHATTAN MORTGAGE
CORPORATION,
as Master Servicer
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
OLYMPUS SERVICING, L.P.,
as a Servicer and Special Servicer
By: /s/ Xxxx Xxxx
-------------------------------------
Name: Xxxx Xxxx
Title: Chief Operating Officer
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
JPMORGAN CHASE BANK,
as Trust Administrator
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
000
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this 8th day of May, 2002, before me, personally appeared Xxxxx
Xxxxxxxx, known to me to be a Vice President of Credit Suisse First Boston
Mortgage Securities Corp., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxxx
--------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8th day of May, 2002, before me, personally appeared Xxxxx
Xxxxxx, known to me to be a Vice President of DLJ Mortgage Capital, Inc., one
of the corporations that executed the within instrument and also known to me
to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxxx
--------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8th day of May, 2002, before me, personally appeared Xxxxx X.
Xxxxxx, known to me to be a Vice President of Cendant Mortgage Corporation,
one of the corporations that executed the within instrument and also known to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxxx
--------------------
Notary Public
[NOTARIAL SEAL]
STATE OF WASHINGTON )
: ss.:
COUNTY OF KING )
On the 8th day of May, 2002, before me, personally appeared Xxxxxxx
X. Xxxxxx, known to me to be a Vice President of Washington Mutual Mortgage
Securities Corp., one of the corporations that executed the within instrument
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
-------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8th day of May, 2002 before me, a Notary Public in and for
said State, personally appeared Xxxx X. Xxxxx, known to me to be a Vice
President of Bank One, National Association, the national banking association
that executed the within instrument and also known to me to be the person who
executed it on behalf of said national banking association, and acknowledged
to me that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxxx
--------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8th day of May, 2002 before me, a Notary Public in and for
said State, personally appeared Xxxx Xxxx, known to me to be a Chief Operating
Officer 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 limited partnership, and acknowledged to me that
such limited partnership executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public
[NOTARIAL SEAL]
STATE OF FLORIDA )
: ss.:
COUNTY OF BROWARD )
On the 3rd day of May, 2002 before me, a Notary Public in and for
said State, personally appeared Xxxxxx X. Xxxxxx, known to me to be a Vice
President of Chase Manhattan Mortgage Corporation, one of the corporations
that executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxx
-----------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 8th day of May, 2002 before me, a Notary Public in and for
said State, personally appeared Xxxxxxx Xxxx, known to me to be a Vice
President of JPMorgan Chase Bank, 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 banking corporation, and acknowledged to me that
such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxxx
--------------------
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 : April 1, 2002
First Distribution Date : May [28], 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-AR13
Class [__]-A
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer, the Servicers, the Special Servicer, the Trust
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
Credit Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ Mortgage
Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as Master
Servicer, Cendant Mortgage Corporation, as Seller and Servicer, Washington
Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing, L.P., as
Servicer and Special Servicer, Bank One, National Association, as Trustee, and,
JPMorgan Chase Bank, as Trust Administrator. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
A-3
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [May 8], 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By __________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
A-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR13
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-AR13, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is (1) with respect to all Certificates other than the LIBOR Certificates held
in Book-Entry Form, the last day of the calendar month preceding the month in
which such Distribution Date occurs and (2) with respect to the LIBOR
Certificates held in Book-Entry Form only, the close of business on the last
Business Day of the calendar month immediately preceding the calendar month of
such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the related Record Date and such Certificateholder shall satisfy
the conditions to receive such form of payment set forth in the Agreement, or,
if not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
A-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the Trustee
and the Trust Administrator and any agent of the Depositor, each Servicer, the
Master Servicer, each Seller, the Trustee or the Trust Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Master Servicer, the
Sellers, the Trustee, the Trust Administrator or any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans, the Group III Mortgage
Loans and the Group IV Mortgage Loans is equal to 5% or less of the aggregate
Stated Principal Balance of the Group I Mortgage Loans, the Group II Mortgage
Loans, the Group III Mortgage Loans and the Group IV Mortgage Loans as of the
Cut-off Date, the Terminating Entity will have the option to repurchase, in
whole, from the Trust Fund all remaining Group I Mortgage Loans, Group II
Mortgage Loans, Group III Mortgage Loans and Group IV Mortgage Loans and all
property acquired in respect of such Mortgage Loans at a purchase price
determined as provided in the Agreement. On any Distribution Date on which the
aggregate Stated Principal Balance of the Group V Mortgage Loans is equal to 5%
or less of the aggregate Stated Principal Balance of the
A-6
Group V Mortgage Loans as of the Cut-off Date, the Terminating Entity will have
the option to repurchase, in whole, from the Trust Fund all remaining Group V
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-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to _____________________
________________________________________________________________________________
_______________________________________________________________________________.
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
________________________________________________________________________________
This information is provided by, the assignee named above, or, as its
agent.
A-8
EXHIBIT B
[FORM OF CLASS M CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
B-1
Certificate No. :
Cut-off Date : April 1, 2002
First Distribution Date : May [28], 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-AR13
Class [__]-M-[__]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer, the Servicers, the Special Servicer, the Trust
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate of the denominations of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
Credit Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ Mortgage
Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as Master
Servicer, Cendant Mortgage Corporation, as Seller and Servicer, Washington
Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing, L.P., as
Servicer and Special Servicer, Bank One, National Association, as Trustee, and,
JPMorgan Chase Bank, as Trust Administrator. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
B-3
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: [May 8], 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By ______________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
B-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR13
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-AR13, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is (1) with respect to all Certificates other than the LIBOR Certificates held
in Book-Entry Form, the last day of the calendar month preceding the month in
which such Distribution Date occurs and (2) with respect to the LIBOR
Certificates held in Book-Entry Form only, the close of business on the last
Business Day of the calendar month immediately preceding the calendar month of
such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the related Record Date and such Certificateholder shall satisfy
the conditions to receive such form of payment set forth in the Agreement, or,
if not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
B-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the Trustee
and the Trust Administrator and any agent of the Depositor, each Servicer, the
Master Servicer, each Seller, the Trustee or the Trust Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Master Servicer, the
Sellers, the Trustee, the Trust Administrator or any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans, the Group III Mortgage
Loans and the Group IV Mortgage Loans is equal to 5% or less of the aggregate
Stated Principal Balance of the Group I Mortgage Loans, the Group II Mortgage
Loans, the Group III Mortgage Loans and the Group IV Mortgage Loans as of the
Cut-off Date, the Terminating Entity will have the option to repurchase, in
whole, from the Trust Fund all remaining Group I Mortgage Loans, Group II
Mortgage Loans, Group III Mortgage Loans and Group IV Mortgage Loans and all
property acquired in respect of such Mortgage Loans at a purchase price
determined as provided in the Agreement. On any Distribution Date on which the
aggregate Stated Principal Balance of the Group V Mortgage Loans is equal to 5%
or less of the aggregate Stated Principal Balance of the
B-6
Group V Mortgage Loans as of the Cut-off Date, the Terminating Entity will have
the option to repurchase, in whole, from the Trust Fund all remaining Group V
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-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
for the account of ____________________________________________________________,
account number _______, or, if mailed by check, to _____________________________
________________________________________________________________________________
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
________________________________________________________________________________
This information is provided by, the assignee named above, or, as its agent.
B-8
EXHIBIT C
[FORM OF GROUP C-B CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
FOR CLASSES C-B-4, C-B-5 AND C-B-6 ONLY: [PURSUANT TO SECTION 6.02(f) OF THE
AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR (I) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING ON
BEHALF OF SUCH A PLAN OR ARRANGEMENT OR USING THE ASSETS OF SUCH A PLAN OR
ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II) IF THE PURCHASER IS AN INSURANCE
COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. IN THE EVENT THE
REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT FURNISHED, SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUST ADMINISTRATOR BY
THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY BENEFICIAL OWNER WHO
PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY FORM. IN THE EVENT THAT
A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO TRANSFER THIS CERTIFICATE TO A
PLAN OR PERSON ACTING ON BEHALF OF A PLAN OR USING A PLAN'S ASSETS IS ATTEMPTED
WITHOUT THE DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL DESCRIBED ABOVE,
THE ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE SHALL BE VOID AND OF
NO EFFECT.]
C-1
Certificate No. :
Cut-off Date : April 1, 2002
First Distribution Date : May [28], 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-AR13
Class C-B-[__]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Sellers, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator referred
to below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that [_____________________________________________], is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, DLJ Mortgage Capital, Inc., as Seller, Chase
Manhattan Mortgage Corporation, as Master Servicer, Cendant Mortgage
Corporation, as Seller and Servicer, Washington Mutual Mortgage Securities
Corp., as Servicer, Olympus Servicing, L.P., as Servicer and Special Servicer,
Bank One, National Association, as Trustee, and, JPMorgan Chase Bank, as Trust
Administrator. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No transfer of this Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Securities Act and such laws, in order to
assure compliance with the Securities Act and such laws, the Certificateholder
desiring to effect such transfer and such Certificateholder's prospective
transferee shall each certify to the Trust Administrator in writing the facts
surrounding the transfer and (i) deliver a letter in substantially the form of
either Exhibit L or Exhibit M-1 or Exhibit M-2 to the Agreement or (ii) there
shall be delivered to the Trust Administrator at the expense of the transferor
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act. In
C-3
the event that such a transfer is to be made within three years from the date of
the initial issuance of Certificates pursuant hereto, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Securities Act) to the Trustee and the Trust Administrator an Opinion of Counsel
that such transfer may be made pursuant to an exemption from the Securities Act.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Trust Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
[For Classes C-B-4, C-B-5 and C-B-6 only:] [Pursuant to Section 6.02(f) of
the Agreement, no transfer of this Certificate shall be made unless the Trustee
and the Trust Administrator shall have received either (i) a representation
letter from the transferee of such Certificate, acceptable to and in form and
substance satisfactory to the Trust Administrator, to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA or
Section 4975 of the Code, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect such
transfer, which representation letter shall not be an expense of the Trustee,
the Trust Administrator or the Trust Fund, (ii) if the purchaser is an insurance
company and the Certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation that the purchaser is an insurance company which
is purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such Certificate presented for registration in the
name of an employee benefit plan subject to ERISA, or Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement,
or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trust Administrator to the effect that the purchase or holding of such
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA and
the Code and will not subject the Depositor, the Trustee, the Trust
Administrator, the Master Servicer, the Servicers or the Special Servicer to any
obligation in addition to those undertaken in this Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Trust Administrator or the
Trust Fund. In the event the representations referred to in the preceding
sentence are not furnished, such representation shall be deemed to have been
made to the trustee by the transferee's acceptance of this certificate, or by
any beneficial owner who purchases an interest in this certificate in book-entry
form. In the event that a representation is violated, or any attempt to transfer
this certificate to a plan or person acting on behalf of a plan or using a
plan's assets is attempted without the delivery to the trustee of the opinion of
counsel described above, the attempted transfer or acquisition of this
certificate shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
C-4
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [May 8], 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
C-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR13
Class C-B-[__]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR13, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is (1) with respect to all Certificates other than the LIBOR Certificates held
in Book-Entry Form, the last day of the calendar month preceding the month in
which such Distribution Date occurs and (2) with respect to the LIBOR
Certificates held in Book-Entry Form only, the close of business on the last
Business Day of the calendar month immediately preceding the calendar month of
such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the related Record Date and such Certificateholder shall satisfy
the conditions to receive such form of payment set forth in the Agreement, or,
if not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
C-6
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the Trustee
and the Trust Administrator and any agent of the Depositor, each Servicer, the
Master Servicer, each Seller, the Trustee or the Trust Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Master Servicer, the
Sellers, the Trustee, the Trust Administrator or any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans, the Group III Mortgage
Loans and the Group IV Mortgage Loans is equal to 5% or less of the aggregate
Stated Principal Balance of the Group I Mortgage Loans, the Group II Mortgage
Loans, the Group III Mortgage Loans and the Group IV Mortgage Loans as of the
Cut-off Date, the Terminating Entity will have the option to repurchase, in
whole, from the Trust Fund all remaining Group I Mortgage Loans, Group II
Mortgage Loans, Group III Mortgage Loans and Group IV Mortgage Loans and all
property acquired in respect of such Mortgage Loans at a purchase price
determined as provided in the Agreement. On any Distribution Date on which the
aggregate Stated Principal Balance of the Group V Mortgage Loans is equal to 5%
or less of the aggregate Stated Principal Balance of the
C-7
Group V Mortgage Loans as of the Cut-off Date, the Terminating Entity will have
the option to repurchase, in whole, from the Trust Fund all remaining Group V
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-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to _______________________
________________________________________________________________________________
________________________________________________________________________________
Applicable statements should be mailed to _____________________________________.
________________________________________________________________________________
________________________________________________________________________________
This information is provided by, the assignee named above, or, as its agent.
C-9
EXHIBIT D
[FORM OF CLASS AR CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING ON
BEHALF OF SUCH A PLAN OR ARRANGEMENT OR USING THE ASSETS OF SUCH A PLAN OR
ARRANGEMENT TO EFFECT THAT TRANSFER, OR (B) IF THE TRANSFEREE IS AN INSURANCE
COMPANY, A REPRESENTATION THAT THE TRANSFEREE IS AN INSURANCE COMPANY WHICH IS
PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY
GENERAL ACCOUNT," AS THAT TERM IS DEFINED IN SECTION V(e) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60, OR PTCE 95-60, AND THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE 95-60,
OR (C) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY
TO THE TRUST ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
D-1
Certificate No. : [1][2]
Cut-off Date : April 1, 2002
First Distribution Date : May [28], 2002
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
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-AR13
Class AR
evidencing a percentage interest in the distributions allocable to the
Class AR Certificates with respect to a Trust Fund consisting primarily
of a pool of adjustable rate conventional mortgage loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer, the Servicers, the Special Servicer, the Trustee
or the Trust Administrator referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that Credit Suisse First Boston Corporation, is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, DLJ Mortgage Capital, Inc., as Seller, Chase
Manhattan Mortgage Corporation, as Master Servicer, Cendant Mortgage
Corporation, as Seller and Servicer, Washington Mutual Mortgage Securities
Corp., as Servicer, Olympus Servicing, L.P., as Servicer and Special Servicer,
Bank One, National Association, as Trustee, and, JPMorgan Chase Bank, as Trust
Administrator. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class AR Certificate at
the Corporate Trust Office or the office or agency maintained by the Trust
Administrator in New York, New York.
No transfer of a Class AR Certificate shall be made unless the Trust
Administrator shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such 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
D-3
such plan or arrangement to effect such transfer, which representation letter
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund or (ii) if the transferee is an insurance company, a representation that
the transferee is an insurance company which is purchasing this certificate with
funds contained in an "insurance company general account," as that term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60, or PTCE
95-60, and that the purchase and holding of this certificate are covered under
Sections I and II of PTCE 95-60, or (iii) in the case of any such Class AR
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trust Administrator to the
effect that the purchase or holding of such Class AR Certificate will not result
in the assets of the Trust Fund being deemed to be "plan assets" and subject to
the prohibited transaction provisions of ERISA and the Code and will not subject
the Depositor, the Trustee, the Trust Administrator, the Master Servicer, the
Servicers or the Special Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Trust Administrator or the Trust Fund. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class AR
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the Opinion of Counsel satisfactory to the Trust Administrator
as described above shall be void and of no effect.
Each Holder of this Class AR Certificate will be deemed to have agreed to
be bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest in
this Class AR Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class AR Certificate may be transferred without delivery to the
Trust Administrator of a transfer affidavit of the initial owner or the proposed
transferee in the form described in the Agreement, (iii) each person holding or
acquiring any Ownership Interest in this Class AR Certificate must agree to
require a transfer affidavit from any other person to whom such person attempts
to Transfer its Ownership Interest in this Class AR Certificate as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class AR Certificate must agree not to transfer an Ownership
Interest in this Class AR Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class AR Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
D-4
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [May 8], 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By ____________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
D-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR13
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-AR13, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is (1) with respect to all Certificates other than the LIBOR Certificates held
in Book-Entry Form, the last day of the calendar month preceding the month in
which such Distribution Date occurs and (2) with respect to the LIBOR
Certificates held in Book-Entry Form only, the close of business on the last
Business Day of the calendar month immediately preceding the calendar month of
such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the related Record Date and such Certificateholder shall satisfy
the conditions to receive such form of payment set forth in the Agreement, or,
if not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
D-6
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the Trustee
and the Trust Administrator and any agent of the Depositor, each Servicer, the
Master Servicer, each Seller, the Trustee or the Trust Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Master Servicer, the
Sellers, the Trustee, the Trust Administrator or any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans, the Group III Mortgage
Loans and the Group IV Mortgage Loans is equal to 5% or less of the aggregate
Stated Principal Balance of the Group I Mortgage Loans, the Group II Mortgage
Loans, the Group III Mortgage Loans and the Group IV Mortgage Loans as of the
Cut-off Date, the Terminating Entity will have the option to repurchase, in
whole, from the Trust Fund all remaining Group I Mortgage Loans, Group II
Mortgage Loans, Group III Mortgage Loans and Group IV Mortgage Loans and all
property acquired in respect of such Mortgage Loans at a purchase price
determined as provided in the Agreement. On any Distribution Date on which the
aggregate Stated Principal Balance of the Group V Mortgage Loans is equal to 5%
or less of the aggregate Stated Principal Balance of the
D-7
Group V Mortgage Loans as of the Cut-off Date, the Terminating Entity will have
the option to repurchase, in whole, from the Trust Fund all remaining Group V
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-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
for the account of ____________________________________________________________,
account number ____________, or, if mailed by check, to _______________________.
________________________________________________________________________________
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
________________________________________________________________________________
This information is provided by, the assignee named above, or, as its agent.
D-9
EXHIBIT E
[FORM OF CLASS III-X 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.
E-1
Certificate No. : 1
Cut-off Date : April 1, 2002
First Distribution Date : May [28], 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 :
E-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR13
Class III-X
evidencing a 100% Percentage Interest in the distributions allocable
to the Class III-X Certificates with respect to a Trust Fund
consisting primarily of a pool of adjustable rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Sellers, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator referred
to below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that 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
Credit Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ Mortgage
Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as Master
Servicer, Cendant Mortgage Corporation, as Seller and Servicer, Washington
Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing, L.P., as
Servicer and Special Servicer, Bank One, National Association, as Trustee, and,
JPMorgan Chase Bank, as Trust Administrator. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
E-3
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [May 8], 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By ______________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
E-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR13
Class III-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-AR13, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is (1) with respect to all Certificates other than the LIBOR Certificates held
in Book-Entry Form, the last day of the calendar month preceding the month in
which such Distribution Date occurs and (2) with respect to the LIBOR
Certificates held in Book-Entry Form only, the close of business on the last
Business Day of the calendar month immediately preceding the calendar month of
such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the related Record Date and such Certificateholder shall satisfy
the conditions to receive such form of payment set forth in the Agreement, or,
if not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
E-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the Trustee
and the Trust Administrator and any agent of the Depositor, each Servicer, the
Master Servicer, each Seller, the Trustee or the Trust Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Master Servicer, the
Sellers, the Trustee, the Trust Administrator or any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans, the Group III Mortgage
Loans and the Group IV Mortgage Loans is equal to 5% or less of the aggregate
Stated Principal Balance of the Group I Mortgage Loans, the Group II Mortgage
Loans, the Group III Mortgage Loans and the Group IV Mortgage Loans as of the
Cut-off Date, the Terminating Entity will have the option to repurchase, in
whole, from the Trust Fund all remaining Group I Mortgage Loans, Group II
Mortgage Loans, Group III Mortgage Loans and Group IV Mortgage Loans and all
property acquired in respect of such Mortgage Loans at a purchase price
determined as provided in the Agreement. On any Distribution Date on which the
aggregate Stated Principal Balance of the Group V Mortgage Loans is equal to 5%
or less of the aggregate Stated Principal Balance of the
E-6
Group V Mortgage Loans as of the Cut-off Date, the Terminating Entity will have
the option to repurchase, in whole, from the Trust Fund all remaining Group V
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.
E-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number __________, or, if mailed by check, to __________________________
________________________________________________________________________________
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
________________________________________________________________________________
This information is provided by, the assignee named above, or, as its agent.
E-8
EXHIBIT F
[FORM OF CLASS V-X CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUST
ADMINISTRATOR (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE
NOR A PERSON ACTING ON BEHALF OF SUCH A PLAN OR ARRANGEMENT OR USING THE ASSETS
OF SUCH A PLAN OR ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II) IF THE PURCHASER
IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. IN THE EVENT
THE REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT FURNISHED,
SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUST ADMINISTRATOR
BY THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY BENEFICIAL OWNER
WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY FORM. IN THE EVENT
THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO TRANSFER THIS CERTIFICATE
TO A PLAN OR PERSON ACTING ON BEHALF OF A PLAN OR USING A PLAN'S ASSETS IS
ATTEMPTED WITHOUT THE DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL
DESCRIBED ABOVE, THE ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE SHALL
BE VOID AND OF NO EFFECT.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
F-1
Certificate No. :
Cut-off Date : April 1, 2002
First Distribution Date : May [28], 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-AR13
Class V-X
evidencing a 100% Percentage Interest in the distributions allocable
to the Class V-X Certificates with respect to a Trust Fund consisting
primarily of a pool of adjustable rate conventional mortgage loans
(the "Mortgage Loans") secured by first liens on one- to four-family
residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Sellers, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator referred
to below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that [_____________________________________________], is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, DLJ Mortgage Capital, Inc., as Seller, Chase
Manhattan Mortgage Corporation, as Master Servicer, Cendant Mortgage
Corporation, as Seller and Servicer, Washington Mutual Mortgage Securities
Corp., as Servicer, Olympus Servicing, L.P., as Servicer and Special Servicer,
Bank One, National Association, as Trustee, and, JPMorgan Chase Bank, as Trust
Administrator. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No transfer of this Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Securities Act and such laws, in order to
assure compliance with the Securities Act and such laws, the Certificateholder
desiring to effect such transfer and such Certificateholder's prospective
transferee shall each certify to the Trust Administrator in writing the facts
surrounding the transfer and (i) deliver a letter in substantially the form of
either Exhibit L or Exhibit M-1 or Exhibit M-2 to the Agreement or (ii) there
shall be delivered to the Trust Administrator at the expense of the transferor
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act. In
F-3
the event that such a transfer is to be made within three years from the date of
the initial issuance of Certificates pursuant hereto, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Securities Act) to the Trustee and the Trust Administrator an Opinion of Counsel
that such transfer may be made pursuant to an exemption from the Securities Act.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Trust Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Certificate shall be made unless the Trustee and the Trust Administrator shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the Trust
Administrator, to the effect that such transferee is not an employee benefit
plan subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of any such plan or arrangement or using the assets of any such
plan or arrangement to effect such transfer, which representation letter shall
not be an expense of the Trustee, the Trust Administrator or the Trust Fund,
(ii) if the purchaser is an insurance company and the Certificate has been the
subject of an ERISA-Qualifying Underwriting, a representation that the purchaser
is an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and
that the purchase and holding of such Certificates are covered under Sections I
and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement, or using such plan's or arrangement's assets,
an Opinion of Counsel satisfactory to the Trust Administrator to the effect that
the purchase or holding of such Certificate will not result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Depositor,
the Trustee, the Trust Administrator, the Master Servicer, the Servicers or the
Special Servicer to any obligation in addition to those undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the
Trust Administrator or the Trust Fund. In the event the representations referred
to in the preceding sentence are not furnished, such representation shall be
deemed to have been made to the trustee by the transferee's acceptance of this
certificate, or by any beneficial owner who purchases an interest in this
certificate in book-entry form. In the event that a representation is violated,
or any attempt to transfer this certificate to a plan or person acting on behalf
of a plan or using a plan's assets is attempted without the delivery to the
trustee of the opinion of counsel described above, the attempted transfer or
acquisition of this certificate shall be void and of no effect.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
F-4
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: May 8, 2002.
JPMORGAN CHASE BANK,
as Trust Administrator
By _____________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
F-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2002-AR13
Class V-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-AR13, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month, or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is (1) with respect to all Certificates other than the LIBOR Certificates held
in Book-Entry Form, the last day of the calendar month preceding the month in
which such Distribution Date occurs and (2) with respect to the LIBOR
Certificates held in Book-Entry Form only, the close of business on the last
Business Day of the calendar month immediately preceding the calendar month of
such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the related Record Date and such Certificateholder shall satisfy
the conditions to receive such form of payment set forth in the Agreement, or,
if not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
F-6
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Sellers, the Trustee and the Trust Administrator with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the Trustee
and the Trust Administrator and any agent of the Depositor, each Servicer, the
Master Servicer, each Seller, the Trustee or the Trust Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Servicers, the Master Servicer, the
Sellers, the Trustee, the Trust Administrator or any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans, the Group III Mortgage
Loans and the Group IV Mortgage Loans is equal to 5% or less of the aggregate
Stated Principal Balance of the Group I Mortgage Loans, the Group II Mortgage
Loans, the Group III Mortgage Loans and the Group IV Mortgage Loans as of the
Cut-off Date, the Terminating Entity will have the option to repurchase, in
whole, from the Trust Fund all remaining Group I Mortgage Loans, Group II
Mortgage Loans, Group III Mortgage Loans and Group IV Mortgage Loans and all
property acquired in respect of such Mortgage Loans at a purchase price
determined as provided in the Agreement. On any Distribution Date on which the
aggregate Stated Principal Balance of the
F-7
Group V Mortgage Loans is equal to 5% or less of the aggregate Stated Principal
Balance of the Group V Mortgage Loans as of the Cut-off Date, the Terminating
Entity will have the option to repurchase, in whole, from the Trust Fund all
remaining Group V 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.
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 Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
________________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
for the account of ____________________________________________________________,
account number ____________, or, if mailed by check, to _______________________.
________________________________________________________________________________
________________________________________________________________________________
Applicable statements should be mailed to _____________________________________.
________________________________________________________________________________
________________________________________________________________________________
This information is provided by, the assignee named above, or, as its agent.
F-9
EXHIBIT G
FORM OF SERVICER INFORMATION
The following information will be e-mailed to Trust Administrator in accordance
with Section 4.05:
Servicer Loan Number
Trust Loan Number (if applicable)
Scheduled Net Interest
Scheduled Principal
Curtailment Applied
Curtailment Adjustment
Mortgage Rate
Servicing Fee Rate
P&I Payment
Beginning Scheduled Balance
Ending Scheduled Balance
Ending Actual Principal Balance
Due Date
Prepayment in full Principal
Prepayment in full Net Interest
Prepayment in full Penalty
Delinquencies:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
Loss Amounts & Loss Types (i.e., Bankruptcy, Excess, Deficient Valuation, Debt
Reduction)
Xxxxxxx Xxxxxx
First Security Investor Reporting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Phone No. 000-000-0000
Fax No. 000-000-0000
kknight@fsir. com
[name]
JPMorgan Chase Bank
[address]
Phone No. [________]
Fax No. [________]
[email]
G-1
EXHIBIT H
DIVIDEND MORTGAGE LOAN SCHEDULE
[to be revised]
Dividend Retained Rates:
Dividend Retained Rates for Two Year Dividend Retained Rates for Three
Delayed Year Delayed
First Adjustment First Adjustment
Dividend Mortgage Loans Dividend Mortgage Loans
------------------------------------ ---------------------------------
Year 1........................ 0.25% 0.25%
Year 2........................ 0.25% 0.25%
Year 3........................ 1.00% 0.25%
Year 4........................ 0.25% 1.00%
Year 5 and thereafter......... 0.00% 0.00%
Dividend Mortgage Loan Classification:
Permanent Servicer Loan Loan ID Group Dividend Mortgage Loan Classification
Servicer ID
G1 Two Year Delayed First Adjustment
G1 Two Year Delayed First Adjustment
H-1
EXHIBIT I
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[_________________, 200_]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [__________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the Pooling and Servicing Agreement, the undersigned, as Trustee, hereby
certifies that, except for the exceptions noted on the schedule attached hereto,
it has (a) received an original Mortgage Note with respect to each Mortgage Loan
listed on the Mortgage Loan Schedule and (b) received an original Mortgage (or a
certified copy thereof) with respect to each Mortgage Loan listed on the
Mortgage Loan Schedule in accordance with Section 2.01 of the Pooling and
Servicing Agreement. The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
mentioned above. The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
delivered in accordance with Section 2.01 of the Pooling and Servicing Agreement
or any of the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii)
the collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized terms used herein without definition shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Authorized Representative
I-1
EXHIBIT J
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [___________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the above-referenced Pooling and Servicing Agreement the undersigned, as
Trustee, hereby certifies that, except for the exceptions noted on the schedule
attached hereto, as to each Mortgage Loan listed in the Mortgage Loan Schedule
it has reviewed the Mortgage File and has determined that (based solely on its
review of each such documents on its face) (i) all documents described in
clauses (i)-(v) of Section 2.01(b) of the Pooling and Servicing Agreement are in
its possession, (ii) such documents have been reviewed by it and have not been
mutilated, damaged, defaced, torn or otherwise physically altered and such
documents relate to such Mortgage Loan and (iii) each Mortgage Note has been
endorsed and each assignment of Mortgage has been delivered as provided in
Section 2.01 of the Pooling and Servicing Agreement. The Trustee has made no
independent examination of any documents required to be delivered in accordance
with Section 2.01 of the Pooling and Servicing Agreement beyond the review
specifically required therein. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents required to be delivered in accordance with Section 2.01 of the
Pooling and Servicing Agreement or any of the Mortgage Loans identified on the
Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness
or suitability of any such Mortgage Loan.
J-1
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Authorized Representative
J-2
EXHIBIT K
FORM OF REQUEST FOR RELEASE
[date]
To: Bank One, National Association
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of April 1,
2002, among Credit Suisse First Boston Mortgage Securities Corp., as Depositor,
DLJ Mortgage Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as
Master Servicer, Cendant Mortgage Corporation, as Seller and Servicer,
Washington Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing,
L.P., as Servicer and Special Servicer, Bank One, National Association, as
Trustee, and, JPMorgan Chase Bank, as Trust Administrator (the "Pooling and
Servicing Agreement"), the undersigned hereby requests a release of the Mortgage
File held by you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received
in connection with the Mortgage Loan have been or will
be credited to the Certificate Account pursuant to the
Pooling and Servicing Agreement.)
____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price
has been credited to the Certificate Account pursuant to
the Pooling and Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned, except if the Mortgage Loan has been
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.
K-1
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[NAME OF SERVICER]
By: _________________________________
Name:
Title:
K-2
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Class AR Certificate, we have no
knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
________________________________
Print Name of Transferor
By: ____________________________
Authorized Officer
L-1
EXHIBIT M-1
FORM OF INVESTMENT LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) if we are an insurance company,
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 our 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
M-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 Transferor
By: ____________________________
Authorized Officer
M-1-2
EXHIBIT M-2
FORM OF RULE 144A LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement or 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
M-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 Transferor
By: ____________________________
Authorized Officer
M-2-2
EXHIBIT N
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or
beneficial owner (the "Owner") of the Class AR Certificates (the "Class AR
Certificates")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States], on behalf of
which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section 860E(e)(5)
of the Internal Revenue Code of 1986, as amended (the "Code"), (ii) will
endeavor to remain other than a disqualified organization for so long as it
retains its ownership interest in the Class AR Certificates, and (iii) is
acquiring the Class AR Certificates for its own account. A "Permitted
Transferee" is any person other than a "disqualified organization". (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class AR Certificates to disqualified organizations under the Code;
(ii) that such tax would be on the transferor, or, if such transfer is through
an agent (which person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class AR Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, if a significant purpose of the
transfer was to enable the transferor to impede the assessment or collection of
tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class AR Certificates if at any time during the taxable year of
the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a
N-1
"pass through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the
Transfer of any Class AR Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner expressly
agrees that it will not consummate any such transfer if it knows or believes
that any of the representations contained in such affidavit and agreement are
false.
6. That the Owner has reviewed the restrictions set forth on the face
of the Class AR Certificates and the provisions of Section 6.02 of the Pooling
and Servicing Agreement under which the Class AR Certificates were issued. The
Owner expressly agrees to be bound by and to comply with such restrictions and
provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class AR Certificates will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
8. That the Owner's Taxpayer Identification Number is
________________.
9. That the Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any State thereof or the District of Columbia, or an
estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
10. That no purpose of the Owner relating to the purchase of the Class
AR Certificate by the Owner is or will be to impede the assessment or collection
of tax.
11. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the Class AR
Certificate by the Owner will be to impede the assessment or collection of tax.
14. The Owner hereby agrees to cooperate with the Trustee and to take
any action required of it by the Code or Treasury regulations thereunder
(whether now or hereafter promulgated) in order to create or maintain the REMIC
status of the Trust Fund.
15. That the Owner
N-2
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets" of any
Plan; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60), and the purchase is being made in reliance upon the availability of the
exemptive relief afforded under Sections I and III of PTCE 95-60.
16. The Owner hereby agrees that it will not take any action that
could endanger the REMIC status of the Trust Fund or result in the imposition of
tax on the Trust Fund unless counsel for, or acceptable to, the Trustee has
provided an opinion that such action will not result in the loss of such REMIC
status or the imposition of such tax, as applicable.
17. The Owner has provided financial statements or other financial
information requested by the transferor in connection with the transfer of the
Residual Certificates to permit the transferor to assess the financial
capability of the Owner to pay any such taxes.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ____ day of ___________.
[NAME OF OWNER]
By: _______________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
N-3
Subscribed and sworn before me this _____ day of
_______________________.
_____________________________________
NOTARY PUBLIC
COUNTY OF ___________________________
STATE OF ____________________________
My Commission expires the _____day of
__________________, 20____.
N-4
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[_____________________]
[_____________________]
[_____________________]
Re: [_________________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-___, Class AR (the "Certificates")
------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_________________ (the "Seller") to ____________________________________ (the
"Purchaser") of a _______% Percentage Interest in the above referenced
Certificates, pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of April 1, 2002, among Credit
Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ Mortgage
Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as Master
Servicer, Cendant Mortgage Corporation, as Seller and Servicer, Washington
Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing, L.P., as
Servicer and Special Servicer, Bank One, National Association, as Trustee, and,
JPMorgan Chase Bank, as Trust Administrator. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
1. No purpose of the Seller relating to sale of the Certificate by the
Seller to the Purchaser is or will be to enable the Seller to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit N. 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
O-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:
X-0
XXXXXXX X-0
FORM OF ESCROW ACCOUNT CERTIFICATE
[On file]
X-0-0
XXXXXXX X-0
FORM OF ESCROW ACCOUNT LETTER
[On file]
X-0-0
XXXXXXX X-0
FORM OF COLLECTION ACCOUNT CERTIFICATE
[On file]
Q-1-1
EXHIBIT Q-2
FORM OF COLLECTION ACCOUNT LETTER
[On file]
Q-2-1
EXHIBIT R
FORM OF RMIC PMI POLICY
[On file]
R-1
SCHEDULE I
Mortgage Loan Schedule
(Provided Upon Request)
I-1
SCHEDULE IIA
Representations and Warranties of Seller - DLJ Mortgage Capital, Inc.
DLJMC, in its capacity as Seller, hereby makes the representations and
warranties set forth in this Schedule IIA to the Depositor, the Trustee and the
Trust Administrator, as of the Closing Date, or if so specified herein, as of
the Cut-off Date or such other date as may be specified. Capitalized terms used
but not defined herein shall have the meanings assigned thereto in the Pooling
and Servicing Agreement dated as of April 1, 2002 (the "Agreement") among Credit
Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ Mortgage
Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as Master
Servicer, Cendant Mortgage Corporation, as Seller and Servicer, Washington
Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing, L.P., as
Servicer and Special Servicer, Bank One, National Association, as Trustee, and,
JPMorgan Chase Bank, as Trust Administrator.
(i) DLJMC is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation;
(v) 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;
(vi) 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;
(vii) 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;
(viii) this Agreement has been duly executed and delivered by
DLJMC and, assuming due authorization, execution and delivery by the
Trustee, the Trust Administrator, the Master Servicer, the Servicers, the
Special Servicer and the Depositor, constitutes a valid and binding
obligation of DLJMC enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally); and
IIA-1
(ix) 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.
(x) to the knowledge of DLJMC, (i) no mortgage loan in the
mortgage pool or in any of the loan groups contemplated under the terms of
this Agreement was subject to the Home Ownership and Equity Protection Act
of 1994 or any comparable state law, (ii) no proceeds from any mortgage
loan in the mortgage pool or in any of the loan groups contemplated under
the terms of this Agreement were used to finance single-premium credit
insurance policies, (iii) the Servicers for each mortgage loan in the
mortgage pool or in any of the loan groups contemplated under the terms of
this Agreement will accurately and fully report its borrower credit files
to all three credit repositories in a timely manner, and (iv) no mortgage
loan in the mortgage pool or in any of the loan groups contemplated under
the terms of this Agreement will impose a prepayment premium for a term in
excess of five years.
IIA-2
SCHEDULE IIB
Representations and Warranties of Master Servicer -
Chase Manhattan Mortgage Corporation
CMMC, in its capacity as Master Servicer, hereby makes the
representations and warranties set forth in this Schedule IIB to the Depositor,
the Trustee and the Trust Administrator and the Master Servicer, as of the
Closing Date, or if so specified herein, as of the Cut-off Date or such other
date as may be specified. Capitalized terms used but not defined herein shall
have the meanings assigned thereto in the Pooling and Servicing Agreement dated
as of April 1, 2002 (the "Agreement") among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, DLJ Mortgage Capital, Inc., as Seller, Chase
Manhattan Mortgage Corporation, as Master Servicer, Cendant Mortgage
Corporation, as Seller and Servicer, Washington Mutual Mortgage Securities
Corp., as Servicer, Olympus Servicing, L.P., as Servicer and Special Servicer,
Bank One, National Association, as Trustee, and, JPMorgan Chase Bank, as Trust
Administrator.
(i) CMMC is a limited corporation duly formed, validly existing
and in good standing and is qualified under the laws of each state where
required by applicable law or is otherwise exempt under applicable law from
such qualification.
(ii) CMMC has all requisite corporate power, authority and
capacity to enter into the Agreement and to perform the obligations
required of it thereunder. The Agreement (assuming the due authorization
and execution of the Agreement by the other parties thereto) constitutes a
valid and legally binding agreement of CMMC enforceable in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors.
(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 CMMC or conflict with, result in a material
breach, violation or acceleration of or constitute a material default
under, the terms of any indenture or other agreement or instrument to which
CMMC is a party or by which it is bound, or any statute, order, judgment,
or regulation applicable to CMMC of any court, regulatory body,
administrative agency or governmental body having jurisdiction over CMMC.
(iv) There is no action, suit, proceeding or investigation
pending, or to CMMC's knowledge threatened, against CMMC before any court,
administrative agency or other tribunal (a) asserting the invalidity of the
Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated thereby or (c) which might materially and
adversely affect the performance by CMMC of its obligations under, or the
validity or enforceability of, the Agreement.
(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
IIB-1
execution, delivery and performance by CMMC of the Agreement or the consummation
of the transactions contemplated by the Agreement.
IIB-2
SCHEDULE IIC
Representations and Warranties of Seller and Servicer - Cendant Mortgage
Corporation
Cendant, in its capacity as Seller and Servicer, hereby makes the
representations and warranties set forth in this Schedule IIC to the Depositor,
the Trustee, the Trust Administrator and the Master Servicer, as of the Closing
Date, or if so specified herein, as of the Cut-off Date or such other date as
may be specified. Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement dated as of
April 1, 2002 (the "Agreement") among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, DLJ Mortgage Capital, Inc., as Seller, Chase
Manhattan Mortgage Corporation, as Master Servicer, Cendant Mortgage
Corporation, as Seller and Servicer, Washington Mutual Mortgage Securities
Corp., as Servicer, Olympus Servicing, L.P., as Servicer and Special Servicer,
Bank One, National Association, as Trustee, and, JPMorgan Chase Bank, as Trust
Administrator.
(a) Due Organization. Cendant is an entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has all licenses necessary to carry on its business now being
conducted and is licensed, qualified and in good standing under the laws of each
state where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required under
applicable law to effect such qualification; no demand for such qualification
has been made upon Cendant by any state having jurisdiction and in any event
Cendant is or will be in compliance with the laws of any such state to the
extent necessary to enforce and service each Cendant Mortgage Loan in accordance
with the terms of this Agreement;
(b) Due Authority. Cendant had the full power and authority and legal
right to originate the Cendant Mortgage Loans that it originated, if any, and to
acquire the Cendant Mortgage Loans that it acquired. Cendant has the full power
and authority to execute, deliver and perform, and to enter into and consummate,
all transactions contemplated by this Agreement. Cendant has duly authorized the
execution, delivery and performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of Cendant, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, receivership,
conservatorship, insolvency, moratorium and other laws relating to or affecting
creditors' rights generally or the rights of creditors of banks and to the
general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law);
(c) No Conflict. The execution and delivery of this Agreement, the
acquisition or origination, as applicable, of the Cendant Mortgage Loans by
Cendant, the consummation of the transactions contemplated hereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
will not conflict with or result in a breach of any of the terms, conditions or
provisions of Cendant's organizational documents and bylaws or any legal
restriction or any agreement or instrument to which Cendant is now a party or by
which it is bound, or constitute a default or result in an acceleration under
any of the foregoing, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Cendant or its
IIC-1
property is subject, or impair the ability of the Trustee to realize on the
Cendant Mortgage Loans;
(d) Ability to Perform. Cendant does not believe, nor does it have any
cause or reason to believe, that it cannot perform each and every covenant
contained in this Agreement;
(e) No Material Default. Neither Cendant nor any of its Affiliates is
in material default under any agreement, contract, instrument or indenture of
any nature whatsoever to which Cendant or any of its Affiliates is a party or by
which it (or any of its assets) is bound, which default would have a material
adverse effect on the ability of Cendant to perform under this Agreement, nor,
to the best of Cendant's knowledge, has any event occurred which, with notice,
lapse of time or both, would constitute a default under any such agreement,
contract, instrument or indenture and have a material adverse effect on the
ability of Cendant to perform its obligations under this Agreement;
(f) Financial Statements. Except as has previously been disclosed to
the Trustee in writing: (a) such financial statements fairly present the results
of operations and changes in financial position for such period and the
financial position at the end of such period of Cendant and its subsidiaries;
and (b) such financial statements are true, correct and complete as of their
respective dates and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as set forth in the notes thereto;
(g) No Change in Business. There has been no change in the business,
operations, financial condition, properties or assets of Cendant since the date
of its financial statements that would have a material adverse effect on the
ability of the Cendant to perform its obligations under this Agreement;
(h) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of Cendant's knowledge, threatened,
against Cendant, which, either in any one instance or in the aggregate, if
determined adversely to Cendant would adversely affect the execution, delivery
or enforceability of this Agreement or result in any material liability of
Cendant, or draw into question the validity of this Agreement, or have a
material adverse effect on the financial condition of Cendant;
(i) No Consent Required. No consent, approval, authorization or order
of any court or governmental agency or body is required for the execution,
delivery and performance by Cendant of or compliance by Cendant with this
Agreement or the consummation of the transactions contemplated by this Agreement
or, if required, such approval has been obtained prior to the Cut-off Date;
(j) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of business of Cendant;
(k) [Reserved]
(l) No Untrue Information. No statement, report or other agreement,
document or instrument furnished or to be furnished pursuant to this Agreement
by Cendant contains or will
IIC-2
contain any materially untrue statement of fact or omits or will omit to state a
fact necessary to make the statements contained therein not misleading;
(m) Ability to Service. Cendant is an approved seller/servicer for
FNMA and FHLMC in good standing and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Section 203 of the National Housing
Act, with facilities, procedures and experienced personnel necessary for the
servicing of mortgage loans of the same type as the Cendant Mortgage Loans. No
event has occurred that would make Cendant unable to comply with FNMA or FHLMC
eligibility requirements or that would require notification to either FNMA or
FHLMC;
(n) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of Cendant's knowledge, threatened,
against Cendant which, either in any one instance or in the aggregate, if
determined adversely to Cendant would adversely affect the ability of Cendant to
service the Cendant Mortgage Loans hereunder in accordance with the terms hereof
or have a material adverse effect on the financial condition of Cendant;
(o) Collection Practices. The Servicing and collection practices used
by Cendant with respect to each Mortgage Note and Mortgage relating to each
Cendant Mortgage Loan have been in all respects legal, proper and prudent in the
mortgage servicing business; and
(p) MERS. Cendant is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Cendant Mortgage Loans that are MERS
Mortgage Loans for as long as any Cendant Mortgage Loans are registered with
MERS.
IIC-3
SCHEDULE IID
Representations and Warranties of Servicer - Washington Mutual Mortgage
Securities Corp.
WMMSC, in its capacity as Servicer, hereby makes the representations
and warranties set forth in this Schedule IID to the Depositor, the Trustee
andthe Trust Administrator, as of the Closing Date, or if so specified herein,
as of the Cut-off Date or such other date as may be specified. Capitalized terms
used but not defined herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement dated as of April 1, 2002 (the "Agreement")
among Credit Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ
Mortgage Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as
Master Servicer, Cendant Mortgage Corporation, as Seller and Servicer,
Washington Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing,
L.P., as Servicer and Special Servicer, Bank One, National Association, as
Trustee, and, JPMorgan Chase Bank, as Trust Administrator.
(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
IID-1
execution, delivery and performance by WMMSC of the Agreement or the
consummation of the transactions contemplated by the Agreement.
IID-2
SCHEDULE IIE
Representations and Warranties of Servicer and Special Servicer- Olympus
Servicing, L.P.
Olympus, in its capacities as Servicer and Special Servicer, hereby
makes the representations and warranties set forth in this Schedule IIE to the
Depositor, the Trustee, the Trust Administrator and the Master Servicer, as of
the Closing Date, or if so specified herein, as of the Cut-off Date or such
other date as may be specified. Capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement
dated as of April 1, 2002 (the "Agreement") among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor, DLJ Mortgage Capital, Inc., as Seller,
Chase Manhattan Mortgage Corporation, as Master Servicer, Cendant Mortgage
Corporation, as Seller and Servicer, Washington Mutual Mortgage Securities
Corp., as Servicer, Olympus Servicing, L.P., as Servicer and Special Servicer,
Bank One, National Association, as Trustee, and, JPMorgan Chase Bank, as Trust
Administrator.
(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;
(i) Olympus has full limited partnership power to own its
property, to carry on its business as presently conducted and to enter into
and perform its obligations under this Agreement;
(ii) 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 limited partnership 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;
(iii) this Agreement has been duly executed and delivered by
Olympus and, assuming due authorization, execution and delivery by the
other parties hereto, 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
(iv) to the knowledge of Olympus, there are no actions,
litigation, suits or proceedings pending or threatened against Olympus
before or by any court, administrative agency, arbitrator or governmental
body (a) with respect to any of the transactions contemplated by this
Agreement or (b) with respect to any other matter which in the judgment of
Olympus if determined adversely to Olympus would reasonably be expected to
materially and adversely affect Olympus's ability to perform its
IIE-1
obligations under this Agreement, other than as Olympus has previously
advised Seller; and Olympus is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement.
IIE-2
SCHEDULE IIIA
Representations and Warranties of DLJMC - Mortgage Loans
DLJMC, in its capacity as Seller, hereby makes the representations and
warranties set forth in this Schedule IIIA to the Depositor, the Trustee and the
Trust Administrator, as of the Closing Date, or if so specified herein, as of
the Cut-off Date or such other date as may be specified, with respect to the
DLJMC Mortgage Loans identified on Schedule I hereto. Capitalized terms used but
not defined herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement dated as of April 1, 2002 (the "Agreement") among Credit
Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ Mortgage
Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as Master
Servicer, Cendant Mortgage Corporation, as Seller and Servicer, Washington
Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing, L.P., as
Servicer and Special Servicer, Bank One, National Association, as Trustee, and,
JPMorgan Chase Bank, as Trust Administrator.
(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) Except for 44 Mortgage Loans representing approximately
1.78% of the aggregate Cut-off Date Principal of the Mortgage Loans, no
Mortgage Loan will be delinquent more than 30 days as of the Cut-off Date,
and there are no material defaults under the terms of any DLJMC 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, DLJMC 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 DLJMC 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
IIIA-1
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 DLJMC 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 DLJMC 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 DLJMC 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 DLJMC 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. DLJMC has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform
IIIA-2
such action would cause the DLJMC Mortgage Loan to be in default, nor has
DLJMC 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 DLJMC
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 DLJMC 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 DLJMC Mortgage Loan has taken place on the part of Seller or
the Mortgagor, or, to the best of DLJMC's knowledge, on the part of any
other party involved in the origination of the DLJMC Mortgage Loan. Except
to the extent the DLJMC 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 DLJMC 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
DLJMC 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) DLJMC or its affiliate is the sole owner of record and
holder of the DLJMC 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 DLJMC
Mortgage Loan to the Purchaser, DLJMC 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 DLJMC Mortgage Loan.
Immediately prior to the transfer and assignment to the Purchaser on the
Closing Date, the DLJMC Mortgage Loan, including the Mortgage Note and the
Mortgage, were not subject to an assignment or pledge, and DLJMC had good
and marketable title to and was the sole owner thereof and had full right
to transfer and sell the DLJMC Mortgage Loan to the Purchaser free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and
IIIA-3
has the full right and authority subject to no interest or participation
of, or agreement with, any other party, to sell and assign the DLJMC
Mortgage Loan pursuant to this Agreement and following the sale of the
DLJMC Mortgage Loan, the Purchaser will own such DLJMC Mortgage Loan
free and clear of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest. DLJMC intends to relinquish all
rights to possess, control and monitor the DLJMC Mortgage Loan, except for
the purposes of servicing the DLJMC Mortgage Loan as set forth in this
Agreement;
(xiii) Each DLJMC 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 DLJMC 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) DLJMC, its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of the DLJMC
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. DLJMC, 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 DLJMC'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 DLJMC, 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 DLJMC 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;
IIIA-4
(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 Error! Reference source not found. 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
DLJMC 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 DLJMC 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 DLJMC'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 DLJMC'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 DLJMC 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
IIIA-5
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 DLJMC Mortgage Loan does not contain "graduated
payment" features; to the extent any DLJMC Mortgage Loan contains any
buydown provision, such buydown funds have been maintained and administered
in accordance with, and such DLJMC Mortgage Loan otherwise complies with,
FNMA/FHLMC requirements relating to buydown loans;
(xxiv) The DLJMC 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 Xxxx-xxxx Note requires a monthly payment which is
suffi-cient 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 DLJMC 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 DLJMC Mortgage Loan commenced
no more than sixty (60) days after the funds were disbursed in connection
with the DLJMC 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
DLJMC 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.
IIIA-6
(xxix) As of the date of origination of the DLJMC 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 DLJMC, and DLJMC has no
knowledge of any relief requested or allowed to the Mortgagor under the
Soldiers' and Sailors' Civil Relief Act of 1940;
(xxxiii) No DLJMC 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 DLJMC Mortgage
Loan was identified as a construction-to-permanent mortgage loan on the
Mortgage Loan Schedule and (b) the DLJMC 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 DLJMC, or for any other reason under
such coverage;
(xxxv) Each DLJMC 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
IIIA-7
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 DLJMC's security interest in such cooperative
shares;
(xxxvii) The DLJMC 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; and
(xxxviii) Each Mortgage Loan constitutes a qualified mortgage
under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.80G-2(a)(1).
IIIA-8
SCHEDULE IIIB
Representations and Warranties of Cendant - Mortgage Loans
Cendant, in its capacity as Seller, hereby makes the representations
and warranties set forth in this Schedule IIIB to the Depositor, the Trustee and
the Trust Administrator, as of the Closing Date, or if so specified herein, as
of the Cut-off Date or such other date as may be specified, with respect to the
Cendant 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 April 1, 2002 (the "Agreement") among Credit
Suisse First Boston Mortgage Securities Corp., as Depositor, DLJ Mortgage
Capital, Inc., as Seller, Chase Manhattan Mortgage Corporation, as Master
Servicer, Cendant Mortgage Corporation, as Seller and Servicer, Washington
Mutual Mortgage Securities Corp., as Servicer, Olympus Servicing, L.P., as
Servicer and Special Servicer, Bank One, National Association, as Trustee, and,
JPMorgan Chase Bank, as Trust Administrator.
(a) Mortgage Loan as Described. Such Cendant Mortgage Loan complies
with the terms and conditions set forth herein, and all of the information set
forth with respect thereto on the Mortgage Loan Schedule is true and correct in
all material respects;
(b) Complete Mortgage Files. The instruments and documents specified
in Section 2.01 with respect to such Cendant Mortgage Loan have been delivered
to DLJMC or its designee in compliance with the requirements of Article II.
Cendant is in possession of a Mortgage File respecting such Cendant Mortgage
Loan, except for such documents as have been previously delivered to DLJMC or
its designee;
(c) Owner of Record. The Mortgage relating to such Cendant Mortgage
Loan has been duly recorded in the appropriate recording office, and Cendant has
caused DLJMC or its designee to be the owner of record of such Cendant Mortgage
Loan and the indebtedness evidenced by the related Mortgage Note;
(d) Payments Current. As of April 26, 2002, all payments required to
be made up to and including the Cut-off Date for such Cendant Mortgage Loan
under the terms of the Mortgage Note had been made, such that such Cendant
Mortgage Loan was not delinquent 30 days or more on such date. Unless otherwise
disclosed on the Mortgage Loan Schedule, there has been no delinquency,
exclusive of any period of grace, in any payment by the Mortgagor thereunder
during the twelve months preceding April 26, 2002; and, if the Cendant Mortgage
Loan is a Cooperative Loan, as of April 26, 2002, no foreclosure action or
private or public sale under the Uniform Commercial Code had ever been
threatened or commenced with respect to the Cooperative Loan;
(e) No Outstanding Charges. All taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid, or escrow
funds have been established in an amount sufficient to pay for every such
escrowed item which remains unpaid and which has been assessed but is not yet
due and payable;
IIIB-1
(f) Original Terms Unmodified. The terms of the Mortgage Note and the
Mortgage related to such Cendant Mortgage Loan (and the Proprietary Lease and
the Pledge Instruments with respect to each Cooperative Loan,) have not been
impaired, waived, altered or modified in any material respect, except by written
instrument which has been recorded, if necessary to protect the interests of the
Trustee and which has been delivered to DLJMC or its designee as specifically
set forth in the related Mortgage Loan Schedule;
(g) No Defenses. The Mortgage Note and the Mortgage related to such
Cendant Mortgage Loan (and the Acceptance of Assignment and Assumption of Lease
Agreement related to each Cooperative Loan) are not subject to any right of
rescission, set-off or defense, including the defense of usury, nor will the
operation of any of the terms of such Mortgage Note and such Mortgage, or the
exercise of any right thereunder, render such Mortgage unenforceable, in whole
or in part, or subject to any right of rescission, set-off or defense, including
the defense of usury and no such right of rescission, set-off or defense has
been asserted with respect thereto;
(h) Hazard Insurance. (a) All buildings upon the Mortgaged Property
related to such Cendant Mortgage Loan are insured by an insurer acceptable to
FNMA or FHLMC against loss by fire, hazards of extended coverage and such other
hazards as are customary and acceptable to FNMA and FHLMC in the area where such
Mortgaged Property is located, pursuant to insurance policies conforming to the
requirements of Section 3.09. All such insurance policies (collectively, the
"hazard insurance policy") contain a standard mortgagee clause naming the
originator of such Cendant Mortgage Loan, its successors and assigns, as
mortgagee. Such policies are the valid and binding obligations of the insurer,
and all premiums thereon due to date have been paid. The related Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at such
Mortgagor's cost and expense, and on such Mortgagor's failure to do so,
authorizes the holder of such Mortgage to maintain such insurance at such
Mortgagor's cost and expense and to seek reimbursement therefor from such
Mortgagor; or (b) in the case of a condominium or unit in a planned unit
development ("PUD") project that is not covered by an individual policy, the
condominium or PUD project is covered by a "master" or "blanket" policy and
there exists and is in the Mortgage File a certificate of insurance showing that
the individual unit that secures the first mortgage is covered under such
policy. The insurance policy contains a standard mortgagee clause naming the
originator of such Cendant Mortgage Loan (and its successors and assigns), as
insured mortgagee. Such policies are the valid and binding obligations of the
insurer, and all premiums thereon have been paid. The insurance policy provides
for advance notice to Cendant if the policy is canceled or not renewed, or if
any other change that adversely affects Cendant's interests is made; the
certificate includes the types and amounts of coverage provided, describes any
endorsements that are part of the "master" policy and would be acceptable
pursuant to the FNMA Guide;
(i) Compliance With Applicable Laws. All requirements of any federal,
state or local law (including usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws) applicable to the origination and servicing of such Cendant Mortgage Loan
have been complied with in all material respects;
(j) No Satisfaction of Mortgage. The Mortgage related to such Cendant
Mortgage Loan has not been satisfied, canceled or subordinated, in whole or in
part, or rescinded, and the related Mortgaged Property has not been released
from the lien of such Mortgage, in whole or in
IIIB-2
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission;
(k) Valid First Lien. The Mortgage is a valid, subsisting and
enforceable perfected first lien on the related Mortgaged Property, including
all improvements on the related Mortgaged Property, which Mortgaged Property is
free and clear of any encumbrances and liens having priority over the first lien
of the Mortgage subject only to (a) the lien of current real estate taxes and
special assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record as
of the date of recording of such Mortgage which are acceptable to mortgage
lending institutions generally, are referred to in the lender's title insurance
policy and do not adversely affect the market value or intended use of the
related Mortgaged Property, and (c) other matters to which like properties are
commonly subject which do not individually or in the aggregate materially
interfere with the benefits of the security intended to be provided by such
Mortgage or the use, enjoyment, or market value of the related Mortgaged
Property; with respect to each Cooperative Loan, each Acceptance of Assignment
and Assumption of Lease Agreement creates a valid, enforceable and subsisting
first security interest in the collateral securing the related Mortgage Note
subject only to (a) the lien of the related Cooperative Corporation for unpaid
assessments representing the obligor's pro rata share of the Cooperative
Corporation's payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Acceptance of Assignment
and Assumption of Lease Agreement; provided, however, that the appurtenant
Proprietary Lease may be subordinated or otherwise subject to the lien of any
mortgage on the Cooperative Project;
(l) Validity of Documents. The Mortgage Note and the Mortgage related
to such Cendant Mortgage Loan (and the Acceptance of Assignment and Assumption
of Lease Agreement with respect to each Cooperative Loan) are genuine and each
is the legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and general equitable principles
(regardless whether such enforcement is considered in a proceeding in equity or
at law);
(m) Valid Execution of Documents. All parties to the Mortgage Note and
the Mortgage related to such Cendant Mortgage Loan had legal capacity to enter
into such Cendant Mortgage Loan and to execute and deliver the related Mortgage
Note and the related Mortgage and the related Mortgage Note and the related
Mortgage have been duly and properly executed by such parties; with respect to
each Cooperative Loan, all parties to the Mortgage Note and the Cendant Mortgage
Loan had legal capacity to execute and deliver the Mortgage Note, the Acceptance
of Assignment and Assumption of Lease Agreement, the Proprietary Lease, the
Stock Power, the Recognition Agreement, the Financing Statement and the
Assignment of Proprietary Lease and such documents have been duly and properly
executed by such parties; each Stock Power (i) has all signatures guaranteed or
(ii) if all signatures are not guaranteed, then such Cooperative Shares will be
transferred by the stock transfer agent of the Cooperative Corporation if
Cendant undertakes to convert the ownership of the collateral securing the
related Cooperative Loan;
IIIB-3
(n) Full Disbursement of Proceeds. Such Cendant Mortgage Loan has
closed and the proceeds of such Cendant Mortgage Loan have been fully disbursed
prior to the Cut-off Date; provided that, with respect to any Cendant Mortgage
Loan originated within the previous 120 days, alterations and repairs with
respect to the related Mortgaged Property or any part thereof may have required
an escrow of funds in an amount sufficient to pay for all outstanding work
within 120 days of the origination of such Cendant Mortgage Loan, and, if so,
such funds are held in escrow by Cendant, a title company or other escrow agent;
(o) Ownership. Prior to April 26, 2002, the Mortgage Note and the
Mortgage related to such Cendant Mortgage Loan had not been assigned, pledged or
otherwise transferred by Cendant, in whole or in part, and as of April 26, 2002,
Cendant had good and marketable title thereto, and Cendant was the sole owner
thereof (and with respect to any Cooperative Loan, the sole owner of the related
Acceptance of Assignment and Assumption of Lease Agreement) and had full right
and authority to transfer and sell such Cendant Mortgage Loan, and transferred
such Cendant Mortgage Loan to DLJMC on April 26, 2002 free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest;
(p) Doing Business. All parties other than DLJMC that have had any
interest in such Cendant Mortgage Loan, whether as mortgagee, assignee, pledgee
or otherwise, are (or, during the period in which they held and disposed of such
interest, were) in compliance with any and all applicable licensing requirements
of the laws of the state wherein the related Mortgaged Property is located;
(q) Title Insurance. (a) Such Cendant Mortgage Loan is covered by an
ALTA lender's title insurance policy or short form title policy acceptable to
FNMA and FHLMC (or, in jurisdictions where ALTA policies are not generally
approved for use, a lender's title insurance policy acceptable to FNMA and
FHLMC), issued by a title insurer acceptable to FNMA and FHLMC and qualified to
do business in the jurisdiction where the related Mortgaged Property is located,
insuring (subject to the exceptions contained in clauses (11)(a) and (b) above)
the originator of such Cendant Mortgage Loan, its successors and assigns as to
the first priority lien of the related Mortgage in the original principal amount
of such Cendant Mortgage Loan including any Negative Amortization and in the
case of ARM Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of such Mortgage
providing for adjustment to the applicable Note Rate and Monthly Payment.
Additionally, either such lender's title insurance policy affirmatively insures
that there is ingress and egress to and from the Mortgaged Property or Cendant
warrants that there is ingress and egress to and from the Mortgaged Property and
the lender's title insurance policy affirmatively insures against encroachments
by or upon the related Mortgaged Property or any interest therein or any other
adverse circumstance that either is disclosed or would have been disclosed by an
accurate survey. Cendant or its designee is the sole insured of such lender's
title insurance policy, 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 and will inure to the benefit of
the Trustee without any further act. No claims have been made under such
lender's title insurance policy, neither Cendant, nor to the best of Cendant's
knowledge, any prior holder of the related Mortgage has done, by act or
omission, anything that would impair the coverage of such lender's insurance
policy, and there is no act, omission, condition, or information that would
impair the coverage of such lender's insurance policy; (b) The mortgage title
insurance
IIIB-4
policy covering each unit mortgage in a condominium or PUD project
related to such Cendant Mortgage Loan meets all requirements of FNMA and FHLMC;
(r) No Defaults. (a) There is no default, breach, violation or event
of acceleration existing under the Mortgage, the Mortgage Note, or any other
agreements, documents, or instruments related to such Cendant Mortgage Loan; (b)
, there is no event that, with the lapse of time, the giving of notice, or both,
would constitute such a default, breach, violation or event of acceleration; (c)
the Mortgagor(s) with respect to such Cendant Mortgage Loan is (1) not in
default under any other Cendant Mortgage Loan or (2) the subject of an
Insolvency Proceeding; (d) no event of acceleration has previously occurred, and
no notice of default has been sent, with respect to such Cendant Mortgage Loan;
(e) in no event has Cendant waived any of its rights or remedies in respect of
any default, breach, violation or event of acceleration under the Mortgage, the
Mortgage Note, or any other agreements, documents, or instruments related to
such Cendant Mortgage Loan; and (f) with respect to each Cooperative Loan, there
is no default in complying with the terms of the Mortgage Note, the Acceptance
of Assignment and Assumption of Lease Agreement and the Proprietary Lease and
all maintenance charges and assessments (including assessments payable in the
future installments, which previously became due and owing) have been paid, and
Cendant has the right under the terms of the Mortgage Note, Acceptance of
Assignment and Assumption of Lease Agreement and Recognition Agreement to pay
any maintenance charges or assessments owed by the Mortgagor;
(s) No Mechanics' Liens. As of April 26, 2002, there were no
mechanics' or similar liens, except such liens as are expressly insured against
by a title insurance policy, or claims that have been filed for work, labor or
material (and no rights are outstanding that under law could give rise to such
lien) affecting the related Mortgaged Property that are or may be liens prior
to, or equal or coordinate with, the lien of the related Mortgage;
(t) Location of Improvements; No Encroachments. As of the date of
origination of such Cendant Mortgage Loan, to the best of Cendant's knowledge,
all improvements that were considered in determining the Appraised Value of the
related Mortgaged Property lay wholly within the boundaries and building
restriction lines of such Mortgaged Property, and no improvements on adjoining
properties encroach upon such Mortgaged Property except as permitted under the
terms of the FNMA Guide and the FHLMC Selling Guide; to the best of Cendant's
knowledge, as of April 26, 2002, no improvement located on or part of any
Mortgaged Property is in violation of any applicable zoning law or regulation,
and all inspections, licenses and certificates required to be made or issued
with respect to all occupied portions of such Mortgaged Property, and with
respect to the use and occupancy of the same, including certificates of
occupancy, have been made or obtained from the appropriate authorities;
(u) Origination; Payment Terms. Principal payments on such Cendant
Mortgage Loan commenced or will commence no more than 60 days after funds were
disbursed in connection with such Cendant Mortgage Loan. If the interest rate on
the related Mortgage Note is adjustable, the adjustment is based on the Index
set forth on the related Mortgage Loan Schedule. The related Mortgage Note is
payable on the first day of each month in arrears, in accordance with the
payment terms described on the Mortgage Loan Schedule. With respect to any
Cendant Mortgage Loan subject to Negative Amortization the Monthly Payments are
sufficient during the period following each Payment Adjustment Date to fully
amortize the
IIIB-5
outstanding principal balance as of the first day of such period (including any
Negative Amortization) over the original term thereof in accordance with the
terms and conditions set forth in the Mortgage Note;
(v) Due On Sale. Except as noted otherwise on the Mortgage Loan
Schedule, the related Mortgage contains the usual and customary "due-on-sale"
clause or other similar provision for the acceleration of the payment of the
Stated Principal Balance of such Cendant Mortgage Loan if the related Mortgaged
Property or any interest therein is sold or transferred without the prior
consent of the mortgagee thereunder;
(w) Prepayment Penalty. Except as noted otherwise on the Mortgage Loan
Schedule, such Cendant Mortgage Loan is not subject to any Prepayment Penalty.
With respect to each Cendant Mortgage Loan that is subject to a Prepayment
Penalty such penalty is enforceable and will be enforced by Cendant, and such
Prepayment Penalty is permitted pursuant to federal, state, and local law. No
Cendant Mortgage Loan will impose a prepayment penalty for a term in excess of
five years from the date such Cendant Mortgage Loan was originated;
(x) Mortgaged Property Undamaged; No Condemnation. As of April 26,
2002, the related Mortgaged Property (and with respect to a Cooperative Loan,
the related Cooperative Project and Cooperative Unit) is free of material damage
and waste and there is no proceeding pending for the total or partial
condemnation thereof;
(y) Customary Provisions. The related Mortgage contains customary and
enforceable provisions that render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of the
benefits of the security provided thereby, including, (a) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (b) in the case
of a Mortgage, otherwise by judicial foreclosure;
(z) Conformance With Underwriting Standards. Such Cendant Mortgage
Loan was underwritten in accordance with Cendant's program and underwriting
guidelines;
(aa) Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property on forms and with riders approved by FNMA and FHLMC, signed
prior to the approval of such Cendant Mortgage Loan application by an appraiser,
duly appointed by the originator of such Cendant Mortgage Loan, whose
compensation is not affected by the approval or disapproval of such Cendant
Mortgage Loan and who met the minimum qualifications of FNMA and FHLMC for
appraisers. Each appraisal of the Cendant Mortgage Loan was made in accordance
with the relevant provisions of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989;
(bb) Deeds of Trust. If the related Mortgage constitutes a deed of
trust, then a trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named in such Mortgage,
and no fees or expenses are or will become payable by the Trustee to the trustee
under such deed of trust, except in connection with a trustee's sale after
default by the related Mortgagor;
(cc) LTV; Primary Mortgage Insurance Policy. Except with respect to
Additional Collateral Mortgage Loans, if such Cendant Mortgage Loan had a
Loan-to-Value
IIIB-6
Ratio of more than 80% at origination, such Cendant Mortgage Loan is and will be
subject to a Primary Insurance Policy issued by a Qualified Mortgage Insurer,
which insures Cendant, its successors and assigns and insureds in the amount set
forth on the Mortgage Loan Schedule; provided that, a Primary Mortgage Insurance
Policy will not be required for any Cooperative Loan if (i) the proceeds of such
Cooperative Loan were used to purchase a Cooperative Unit at the "insider's
price" when the building was converted to a Cooperative Corporation, (ii) the
value of the Cooperative Unit for purposes of establishing the LTV at
origination was such "insider's price", (iii) the principal amount of the
Cooperative Loan at origination was not more than 100% of such "insider's price"
and (iv) the LTV at origination, as calculated using the Appraised Value at
origination, was less than or equal to 80%. All provisions of such Primary
Insurance Policy have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. Any related
Mortgage subject to any such Primary Insurance Policy (other than a
"lender-paid" Primary Insurance Policy) obligates the Mortgagor thereunder to
maintain such insurance for the time period required by law and to pay all
premiums and charges in connection therewith. As of the date of origination, the
Loan-to-Value Ratio of such Cendant Mortgage Loan is as specified in the
applicable Mortgage Loan Schedule;
(dd) Occupancy. As of the date of origination of such Cendant Mortgage
Loan, the related Mortgaged Property (or with respect to a Cooperative Loan, the
related Cooperative Unit) is 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 (or with respect to a
Cooperative Loan, the related Cooperative Unit) and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities;
(ee) Supervision and Examination by a Federal or State Authority. Each
Cendant Mortgage Loan either was (a) closed in the name of the Cendant, or (b)
closed in the name of another entity that is either a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or an institution which is supervised and examined by a federal or state
authority, or a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act (a "HUD
Approved Mortgagee"), and was so at the time such Cendant Mortgage Loan was
originated (Cendant or such other entity, the "Originator") or (c) closed in the
name of a loan broker under the circumstances described in the following
sentence. If such Cendant Mortgage Loan was originated through a loan broker,
such Cendant Mortgage Loan met the Originator's underwriting criteria at the
time of origination and was originated in accordance with the Originator's
policies and procedures and the Originator acquired such Cendant Mortgage Loan
from the loan broker contemporaneously with the origination thereof. The Cendant
Mortgage Loans were originated by or on behalf of Cendant;
(ff) Adjustments. All of the terms of the related Mortgage Note
pertaining to interest rate adjustments, payment adjustments and adjustments of
the outstanding principal balance, if any, are enforceable and such adjustments
will not affect the priority of the lien of the related Mortgage; all such
adjustments on such Cendant Mortgage Loan have been made properly and in
accordance with the provisions of such Cendant Mortgage Loan;
IIIB-7
(gg) Insolvency Proceedings; Soldiers' and Sailors' Relief Act. To the
best of Cendant's knowledge, the related Mortgagor (1) is not the subject of any
Insolvency Proceeding; and (2) has not requested any relief allowed to such
Mortgagor under the Soldiers' and Sailors' Civil Relief Act of 1940;
(hh) FNMA/FHLMC Documents. Such Cendant Mortgage Loan was closed on
standard FNMA or FHLMC documents or on such documents otherwise acceptable to
them;
(ii) The Cendant Mortgage Loan does not contain "graduated payment"
features; to the extent any Cendant Mortgage Loan contains any buydown
provision, such buydown funds have been maintained and administered in
accordance with, and such Cendant Mortgage Loan otherwise complies with, FNMA
and FHLMC requirements relating to buydown loans;
(jj) The Assignment is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property is
located;
(kk) Any principal advances made to the Mortgagor prior to the Cut-off
Date have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The consolidated principal amount does
not exceed the original principal amount of the Cendant Mortgage Loan plus any
Negative Amortization;
(ll) No Cendant Mortgage Loan has a balloon payment feature;
(mm) If the residential dwelling on the Mortgaged Property is a
condominium unit or a unit in a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project meets the eligibility requirements of Cendant's program and underwriting
guidelines;
(nn) No Cendant Mortgage Loan is subject to the provisions of the
Homeownership and Equity Protection Act of 1994;
(oo) Unless otherwise disclosed in the Mortgage Loan Schedule, no
Cendant Mortgage Loan was made in connection with (a) the construction or
rehabilitation of a Mortgaged Property or (b) facilitating the trade-in or
exchange of a Mortgaged Property;
(pp) Cendant has no knowledge of any circumstances or condition with
respect to the Mortgage, the Mortgage Property (or with respect to a Cooperative
Loan, the Acceptance of Assignment and Assumption of Lease Agreement, the
Cooperative Unit or the Cooperative Project), the Mortgagor or the Mortgagor's
credit standing that can reasonably be expected to cause the Cendant Mortgage
Loan to be an unacceptable investment, cause the Cendant Mortgage Loan to become
delinquent, or adversely affect the value of the Cendant Mortgage Loan;
(qq) Interest on each Cendant Mortgage Loan is calculated on the
basis of a 360-day year consisting of twelve 30-day months;
IIIB-8
(rr) To the best of Cendant's knowledge, the Mortgaged Property is in
material compliance with all applicable environmental laws pertaining to
environmental hazards including, without limitation, asbestos, and neither
Cendant nor, to Cendant's knowledge, the related Mortgagor, has received any
notice of any violation or potential violation of such law;
(ss) No Cendant Mortgage Loan is subject to negative amortization;
(tt) With respect to each Cooperative Loan, a Cooperative Lien Search
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;
(uu) With respect to each Cooperative Loan, (i) the terms of the
related Proprietary Lease is longer than the terms of the Cooperative Loan, (ii)
there is no provision in any Proprietary Lease which requires the Mortgagor to
offer for sale the Cooperative Shares owned by such Mortgagor first to the
Cooperative Corporation, (iii) there is no prohibition in any Proprietary Lease
against pledging the Cooperative Shares or assigning the Proprietary Lease and
(iv) the Recognition Agreement is on a form of agreement published by the Aztech
Document Systems, Inc. or includes provisions which are no less favorable to the
lender than those contained in such agreement;
(vv) With respect to each Cooperative Loan, each original UCC
financing statement, continuation statement or other governmental filing or
recordation necessary to create or preserve the perfection and priority of the
first priority lien and security interest in the Cooperative Shares and
Proprietary Lease has been timely and properly made. Any security agreement,
chattel mortgage or equivalent document related to the Cooperative Loan and
delivered to the Mortgagor or its designee establishes in the Mortgagor a valid
and subsisting perfected first lien on and security interest in the Mortgaged
Property described therein, and the Mortgagor has full right to sell and assign
the same;
(ww) With respect to each Cooperative Loan, each Acceptance of
Assignment and Assumption of Lease Agreement contains enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization of the benefits of the security provided thereby. The Acceptance of
Assignment and Assumption of Lease Agreement contains an enforceable provision
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Note in the event the Cooperative Unit is transferred or sold without
the consent of the holder thereof;
(xx) No Fraud. Each Cendant Mortgage Loan was originated and/or
acquired by Cendant and sold to DLJMC on April 26, 2002 in each instance without
any conduct constituting fraud or misrepresentation, negligence or similar
occurrence with respect to a Cendant Mortgage Loan on the part of Cendant or the
Mortgagor, or, on the part of any other party involved in the origination of the
Cendant Mortgage Loan; and
(yy) With respect to any Cendant Mortgage Loan as to which an
affidavit has been delivered to DLJMC or its designee certifying that the
original Mortgage Note has been lost or destroyed and not been replaced, if such
Cendant Mortgage Loan is subsequently in default,
IIIB-9
the enforcement of such Cendant Mortgage Loan will not be materially adversely
affected by the absence of the original Mortgage Note.
(zz) Each Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.80G-2(a)(1).
IIIB-10
