EXECUTION COPY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
WASHINGTON MUTUAL BANK, FA
Seller and Servicer,
BANK ONE, NATIONAL ASSOCIATION
Trustee,
----------------
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
relating to
WASHINGTON MUTUAL BANK, FA MORTGAGE-BACKED PASS-THROUGH
CERTIFICATES, SERIES 1999-WM4 AND WASHINGTON MUTUAL BANK, FA
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2001-AR5
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.......................................................4
ARTICLE II CONVEYANCE OF TRUST FUND; REPRESENTATIONS AND WARRANTIES.........35
SECTION 2.01 Conveyance of Trust Fund.................................35
SECTION 2.02 Acceptance by Trustee....................................37
SECTION 2.03 Representations, Warranties and Covenants of the
Servicer and Seller......................................38
SECTION 2.04 Representations, Warranties and Covenants of the Seller
with respect to the Mortgage Loans.......................40
SECTION 2.05 Issuance of Certificates.................................47
SECTION 2.06 REMIC Provisions.........................................47
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...................52
SECTION 3.01 Servicing Standard.......................................52
SECTION 3.02 Enforcement of the Obligations of Sub-Servicers..........53
SECTION 3.03 Termination of the Rights of Sub-Servicers...............53
SECTION 3.04 Liability of the Servicer................................54
SECTION 3.05 Rights of the Depositor and the Trustee in Respect of
the Servicer.............................................54
SECTION 3.06 Trustee to Act as Servicer...............................54
SECTION 3.07 Collection of Mortgage Loan Payments.....................55
SECTION 3.08 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..........................................57
SECTION 3.09 Permitted Withdrawals from the Custodial Account.........57
SECTION 3.10 Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder...................................59
SECTION 3.11 Maintenance of Hazard Insurance and Other Insurance......60
SECTION 3.12 Enforcement of Due-On-Sale Clauses; Assumption
Agreements...............................................61
SECTION 3.13 Realization Upon Defaulted Mortgage Loans................62
SECTION 3.14 Trustee to Cooperate; Release of Trustee Mortgage Files..64
SECTION 3.15 Documents, Records and Funds in Possession of Servicer
to be Held for the Trustee for the Benefit of the
Certificateholders.......................................65
SECTION 3.16 Servicing Compensation; Compensating Interest............65
SECTION 3.17 Reports to the Depositor; Account Statements.............66
SECTION 3.18 Annual Statement as to Compliance........................66
SECTION 3.19 Annual Independent Public Accountants' Servicing Report..67
SECTION 3.20 Reports to Trustee.......................................67
-i-
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE IV PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS....................67
SECTION 4.01 Certificate Account......................................67
SECTION 4.02 Distributions............................................68
SECTION 4.03 Allocation of Realized Losses............................70
SECTION 4.04 Monthly Statements to Certificateholders.................71
SECTION 4.05 Prepayment Interest Shortfalls and Relief Act
Shortfalls...............................................73
ARTICLE V ADVANCES.........................................................74
SECTION 5.01 Monthly Advances by the Servicer.........................74
SECTION 5.02 Advances for Attorneys' Fees.............................74
SECTION 5.03 Nonrecoverable Advances..................................75
SECTION 5.04 Advance Procedures.......................................75
ARTICLE VI THE CERTIFICATES.................................................75
SECTION 6.01 The Certificates.........................................75
SECTION 6.02 Registration of Transfer and Exchange of Certificates....77
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates........83
SECTION 6.04 Persons Deemed Owners....................................83
SECTION 6.05 Access to List of Certificateholders' Names and
Addresses................................................83
SECTION 6.06 Maintenance of Office or Agency..........................84
ARTICLE VII THE DEPOSITOR, SELLER AND THE SERVICER...........................84
SECTION 7.01 Liabilities of the Depositor, Seller and the Servicer....84
SECTION 7.02 Merger or Consolidation of the Depositor, the Seller
or the Servicer..........................................85
SECTION 7.03 Limitation on Liability of the Depositor, the Servicer
and Others...............................................86
SECTION 7.04 Servicer Not to Resign...................................86
SECTION 7.05 Errors and Omissions Insurance; Fidelity Bonds...........86
SECTION 7.06 Seller and Servicer May Own Certificates.................87
ARTICLE VIII DEFAULT..........................................................87
SECTION 8.01 Events of Default........................................87
SECTION 8.02 Trustee to Act; Appointment of Successor.................88
SECTION 8.03 Notification to Certificateholders.......................89
SECTION 8.04 Waiver of Events of Default..............................90
-ii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE IX CONCERNING THE TRUSTEE...........................................90
SECTION 9.01 Duties of Trustee........................................90
SECTION 9.02 Certain Matters Affecting the Trustee....................92
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans....93
SECTION 9.04 Trustee May Own Certificates.............................93
SECTION 9.05 Trustee's Compensation and Expenses......................93
SECTION 9.06 Eligibility Requirements for Trustee.....................94
SECTION 9.07 Resignation and Removal of Trustee.......................94
SECTION 9.08 Successor Trustee........................................95
SECTION 9.09 Merger or Consolidation of Trustee.......................95
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee............95
SECTION 9.11 Office of the Trustee....................................97
SECTION 9.12 Tax Returns..............................................97
ARTICLE X TERMINATION......................................................97
SECTION 10.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans...........................................97
SECTION 10.02 Procedure Upon Optional or Other Final Termination.......98
SECTION 10.03 Additional Termination Requirements......................99
ARTICLE XI MISCELLANEOUS PROVISIONS........................................100
SECTION 11.01 Amendment...............................................100
SECTION 11.02 Recordation of Agreement; Counterparts..................101
SECTION 11.03 Governing Law...........................................101
SECTION 11.04 Intention of Parties....................................101
SECTION 11.05 Notices.................................................103
SECTION 11.06 Severability of Provisions..............................103
SECTION 11.07 Limitation on Rights of Certificateholders..............103
SECTION 11.08 Certificates Nonassessable and Fully Paid...............104
EXHIBIT A FORM OF CLASS A CERTIFICATE......................................A-1
EXHIBIT A-1 FORM OF CLASS I-A CERTIFICATE .................................A-1-1
EXHIBIT A-2 FORM OF CLASS B-1, B-2 AND B-3 CERTIFICATE ....................A-2-1
EXHIBIT A-3 FORM OF CLASS B-4, B-5 AND B-6 CERTIFICATE ....................A-3-1
EXHIBIT B FORM OF CLASS R CERTIFICATE......................................B-1
-iii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
EXHIBIT B-1 FORM OF CLASS I-R CERTIFICATE..................................B-1-1
EXHIBIT C SCHEDULE OF MORTGAGE LOANS.......................................C-1
EXHIBIT D-1 FORM OF INITIAL CERTIFICATION OF TRUSTEE.......................D-1-1
EXHIBIT D-2 FORM OF CERTIFICATION OF TRUSTEE...............................D-2-1
EXHIBIT E FORM OF REQUEST FOR RELEASE......................................E-1
EXHIBIT F FORM OF INVESTOR REPRESENTATION LETTER...........................F-1
EXHIBIT G FORM OF TRANSFEROR REPRESENTATION LETTER.........................G-1
EXHIBIT H FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT................H-1
EXHIBIT I FORM OF TRANSFER CERTIFICATE.....................................I-1
EXHIBIT J FORM OF ALLONGE..................................................J-1
EXHBIT K REQUEST FOR EXCHANGE.............................................K-1
-iv-
THIS AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as of
November 1, 2001 (the "Agreement"), is hereby executed by and among CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., depositor (the "Depositor"),
WASHINGTON MUTUAL BANK, FA ("Washington Mutual"), in its capacity as seller (the
"Seller") and in its capacity as servicer (the "Servicer") and BANK ONE,
NATIONAL ASSOCIATION, a national banking association, as trustee (the
"Trustee").
WHEREAS, the Depositor, Washington Mutual, and the Trustee entered
into that certain Pooling and Servicing Agreement dated as of December 1, 1999
(the "Original Pooling and Servicing Agreement"), as amended by that certain
First Amendment To Pooling and Servicing Agreement, dated as of July 31, 2000,
by and among the Depositor, Washington Mutual and the Trustee (the "First
Amendment" and, together with the Original Pooling and Servicing Agreement, the
"Amended Pooling Agreement").
WHEREAS, the Depositor, Washington Mutual, and the Trustee wish to
amend and restate the Amended Pooling Agreement as of November 1, 2001, on the
terms and conditions set forth in this Agreement; except as otherwise amended as
of November 1, 2001 and by the First Amendment, the terms and conditions of this
Agreement shall be as set forth in the Original Pooling and Servicing Agreement.
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 Mortgage Loans and the other
property being conveyed by it to the Trustee in its capacity as trustee of the
Trust Fund, in accordance with this Agreement, and the Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
conveyance to the Trustee of the Trust Fund.
As provided herein, the Depositor will elect to treat the assets
consisting of the Mortgage Loans and certain other assets as described herein as
a real estate mortgage investment conduit (a "remic") for federal income tax
purposes, and such segregated pool of assets will be designated as the "Trust
REMIC." The Class R Certificates will represent the sole class of "residual
interests" in the Trust REMIC for purposes of the REMIC Provisions (as defined
herein) under federal income tax law. The following table irrevocably sets forth
the designation, Certificate Rate, aggregate Initial Certificate Principal
Balance and Maturity Date for each Class of Certificates comprising the
interests representing "regular interests" in the Trust REMIC (the "REMIC
Regular Certificates"). The "latest possible maturity date" (determined solely
for purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii)) for
each Class of REMIC Regular Certificates shall be the first Distribution Date
that follows the stated maturity date for the Mortgage Loan included in the
Trust Fund as of the Closing Date with the longest remaining term to stated
maturity.
-1-
CERTIFICATE PRINCIPAL INITIAL
DESIGNATION BALANCES MATURITY DATE PASS-THROUGH RATE
----------- -------- ------------- -----------------
Class A-1 $202,311,568.63 August 19, 2039 6.3722%
Class A-2 $664,303,305.20 December 19, 2039 6.4386%
Class A-3 $391,241,788.84 August 19, 2039 6.2696%
Class A-4 $846,039,005.17 November 19, 2039 6.8277%
Class A-5 $131,913,632.22 February 19, 2039 6.1608%
Class A-6 $185,410,324.26 January 19, 2039 6.7428%
Class A-7 $104,808,047.56 November 19, 2039 6.2580%
Class A-8 $479,291,431.90 November 19, 2039 6.9929%
Class A-9 $535,029,262.10 November 19, 2029 6.7386%
Class R $100.00 November 19, 2039 6.7386%
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 aggregate Principal Balance of the Mortgage
Loans as of the Cut-off Date is $3,540,348,465.88.
The Depositor is the owner of the of the Class A-1, Class A-2, Class
A-3 and Class A-4 Certificates and the other property being conveyed by it to
the Trustee in its capacity as trustee of the Trust Fund, in accordance with
this Agreement.
As provided herein, the Depositor will elect to treat the assets
consisting of the Class A-1, Class A-2 Class A-3 and Class A-4 Certificates and
certain other assets as described herein as a real estate mortgage investment
conduit (a "remic") for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC I." The Class R-I Component evidenced by the
Class I-R Certificates will represent the sole class of "residual interests" in
REMIC I for purposes of the REMIC Provisions (as defined herein) under federal
income tax law. The "regular interests" in REMIC I ("the REMIC I Regular
Interests") will be uncertificated interests on corresponding to each of the
Mortgage Loans identified on the Mortgage Loan Schedule X ("Class AR5 Mortgage
Loans") or Mortgage Loan Schedule Y ("Class Y Mortgage Loans"). Ownership of the
uncertificated regular interests corresponding to Class Y Mortgage Loans will be
represented by the Class Y Certificates. The REMIC I Regular Interests
corresponding to Mortgage Loans in Mortgage Loan Schedule X shall be referred to
as the "Class AR5 Regular Interests." The "latest possible maturity date"
(determined solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii)) for each Class of REMIC Regular Certificates shall be the
first Distribution Date that follows the stated maturity date for the Mortgage
Loan included in the Trust Fund as of the Closing Date with the longest
remaining term to stated maturity. Each REMIC I Regular Interest will have a
principal balance equal to the Principal Balance of the Mortgage Loan to which
it corresponds and will bear interest at a rate equal to the Net Mortgage Rate
on such Mortgage Loan. Principal and interest distributed, and Realized Losses
allocated, to REMIC II Certificates that were incurred with respect to Class AR5
and Class Y Mortgage Loans shall be deemed to have been distributed in respect
of and allocated to the REMIC I Regular Interest corresponding to such Mortgage
Loan.
-2-
As provided herein, the Depositor will elect to treat the assets
consisting of the uncertificated interests in REMIC I representing the Class AR5
Regular Interests and certain other assets as described herein as a real estate
mortgage investment conduit (a "remic") for federal income tax purposes, and
such segregated pool of assets will be designated as the "REMIC II." The Class
R-II Component evidenced by the Class I-R Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
(as defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, aggregate Initial Certificate Principal
Balance and Maturity Date for each Class of Certificates comprising the
interests representing "regular interests" in REMIC II ("REMIC II Regular
Certificates"). The "latest possible maturity date" (determined solely for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii)) for each
Class of REMIC Regular Certificates shall be the first Distribution Date that
follows the stated maturity date for the Mortgage Loan included in the Trust
Fund as of the Class AR5 Delivery Date with the longest remaining term to stated
maturity.
AGGREGATE INITIAL
CERTIFICATE PRINCIPAL RATING
DESIGNATION BALANCES MATURITY DATE XXXXX'X/S&P
----------- -------- ------------- -----------
Class I-A $ 808,071,900 December 19, 2039 Aaa/AAA
Class B-1 $ 10,440,000 December 19, 2039 Aa2/AA
Class B-2 $ 7,517,000 December 19, 2039 A2/A
Class B-3 $ 3,758,000 December 19, 2039 Baa2/BBB
Class B-4 $ 1,670,000 December 19, 2039 Ba2/BB
Class B-5 $ 1,253,000 December 19, 2039 Ba2/B
Class B-6 $ 2,506,666.11 December 19, 2039 N/A
Class I-R $100.00(1) December 19, 2029 N/A/AAA
(1) The entire principal balance of the Class I-R Certificates shall be
represented by the Class R-II Component.
The parties hereto intend to effect an absolute sale and assignment of
the Mortgage Loans to the Trustee for the benefit of Certificateholders under
the Mortgage Loan Purchase Agreement and this Agreement. However, the Seller and
the Depositor will hereunder absolutely assign, and as a precautionary matter
grant a security interest in and to, its rights, if any, in the Trust Fund and
the 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.
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Seller and the Trustee agree as follows:
-3-
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
ADDITIONAL SERVICING FEE: For each calendar month for so long as REMIC
I remains in existence and with respect to each Class AR5 Regular Interest and
the related Class AR5 Mortgage Loan, an amount equal to one month's interest (or
in the event of any payment of interest which accompanies a Principal Prepayment
in Full, interest for the number of days covered by such payment of interest) at
a rate equal to the Additional Servicing Fee Rate on such Class AR5 Regular
Interest and the related Class AR5 Mortgage Loan.
ADDITIONAL SERVICING FEE RATE: With respect to each Class AR5 Mortgage
Loan, a per annum rate equal to 0.825%.
ADJUSTMENT DATE: As to each Mortgage Loan that does not bear a fixed
Mortgage Rate, each date set forth in the related Mortgage Note on which an
adjustment to the interest rate on such Mortgage Loan becomes effective.
ADVERSE REMIC EVENT: As defined in Section 2.06(f).
AGREEMENT: This Amended and Restated Pooling and Servicing Agreement
and any and all exhibits, amendments or supplements hereto.
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: An assignment from the Seller, in blank, of the Mortgage,
in recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect, if recorded, of record the
absolute sale and assignment of the Mortgage Loan to the Trustee for the benefit
of Certificateholders, which assignment, may be in the form of one or more
blanket assignments covering Mortgages secured by Mortgaged Properties located
in the same county, if permitted by law and accompanied by an Opinion of Counsel
to that effect.
AVAILABLE DISTRIBUTION AMOUNT: With respect to any Distribution Date
and each of Loan Group 5, Loan Group 6, Loan Group 7, Loan Group 8, Loan Group
9, the Class AR5 Mortgage Loans as a group and the Class Y Mortgage Loan as a
group, the excess of:
(1) the sum of (i) the aggregate amount of payments and collections
received by the Servicer in respect of each Mortgage Loan in such Loan Group,
the Class AR5 Mortgage Loans or the Class Y Mortgage Loans on or prior to the
related Determination Date and not previously remitted, from any source,
including amounts received from the related Mortgagor, Insurance Proceeds,
Liquidation Proceeds (net of related Liquidation Expenses) and condemnation
awards,
-4-
and amounts received in connection with the purchase of any Mortgage Loans by
the Seller or Servicer and the substitution of Replacement Mortgage Loans, and
excluding interest and other earnings on amounts on deposit in or credited to
the Custodial Account and the Certificate Account, and (ii) the aggregate amount
of Monthly Advances and Compensating Interest allocated to such Loan Group, the
Class AR5 Mortgage Loans or the Class Y Mortgage Loans required to be remitted
by the Servicer relating to such Distribution Date;
minus
(2) the sum of (i) the aggregate amount of the servicing compensation
to be paid to the Servicer pursuant to the terms hereof (including, without
limitation, Servicing Fees, and, with respect to the Class AR5 Mortgage Loans,
the Additional Servicing Fee, prepayment penalties, fees or premiums, late
payment charges and assumption fees and any excess interest charges payable by
the Mortgagor by virtue of any default or other non-compliance by the Mortgagor
with the terms of the Mortgage Loan or any other instrument or document executed
in connection therewith or otherwise), (ii) any amount included therein
representing late payments or other recoveries of principal or interest
(including Liquidation Proceeds (net of Liquidation Expenses), Insurance
Proceeds and condemnation awards) with respect to any Mortgage Loans in respect
of which the Servicer has made a previously unreimbursed Monthly Advance to the
extent of such Monthly Advance, (iii) amounts included therein representing
reimbursement of Nonrecoverable Advances and other amounts permitted to be
withdrawn from the Custodial Account or the Certificate Account, (iv) all
Monthly Payments or portions thereof (other than Principal Prepayments and other
unscheduled collections of principal) received in respect of scheduled principal
and interest on any Mortgage Loan due after the related Due Period and included
therein, (v) all payments due on any Mortgage Loan on or prior to the Cut-off
Date and included therein, and (vi) Principal Prepayments and other unscheduled
collections of principal received after the related Prepayment Period and
included therein, in all cases, allocated to such Loan Group, the Class AR5
Mortgage Loans, and the Class Y Certificates.
The Available Distribution Amount, when used without reference to any
such Loan Group, the Class AR5 Mortgage Loans or the Class Y Mortgage Loans,
means the sum of the Available Distribution Amounts for all such Loan Groups,
the Class AR5 Mortgage Loans and the Class Y Mortgage Loans.
BANKRUPTCY COVERAGE: $100,000 less (a) any scheduled or permissible
reduction in the amount of Bankruptcy Coverage pursuant to this definition and
(b) Bankruptcy Losses allocated to the Class AR Certificates.
The Bankruptcy Coverage may be reduced upon written confirmation from
the Rating Agencies that such reduction will not adversely affect the then
current ratings assigned to the Class AR5 Certificates by the Rating Agencies.
BANKRUPTCY LOSS: A loss on a Class AR5 Mortgage Loan arising out of
(i) a reduction in the scheduled Monthly Payment for such Mortgage Loan by a
court of competent jurisdiction in a case under the Bankruptcy Code, other than
any such reduction that arises out of clause (ii) of this definition of
"Bankruptcy Loss," including, without limitation, any such reduction that
results in a permanent forgiveness of principal, or (ii) with respect to any
Class AR5 Mortgage Loan, a valuation, by a court of competent jurisdiction in a
case under such Bankruptcy Code, of the related
-5-
Mortgaged Property in an amount less than the then outstanding Principal Balance
of such Mortgage Loan.
BANKRUPTCY CODE: The United States Bankruptcy Code, as amended from
time to time (11 U.S.C.).
BOOK-ENTRY CERTIFICATES: The Class I-A Certificates and the Class B
Certificates.
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 Servicer
or the Corporate Trust Office are located are authorized or obligated by law or
executive order to be closed.
CASH LIQUIDATION: As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Servicer that it has received all Insurance Proceeds, Liquidation Proceeds and
other payments or cash recoveries which the Servicer reasonably and in good
faith expects to be finally recoverable with respect to such Mortgage Loan.
CERTIFICATE: Any Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class I-A, Class B-1, Class
B-2, Class B-3, Class B-4, Class B-5 Class B-6, Class R or Class I-R Certificate
executed and authenticated by the Trustee for the benefit of the
Certificateholders in substantially the form or forms attached as Exhibits
hereto.
CERTIFICATE ACCOUNT: The separate account or accounts created and
maintained by the Trustee pursuant to Section 4.01, in the name of the Trustee
for the benefit of the Certificateholders for deposit of payments and
collections in respect of the Mortgage Loans pursuant to Section 4.01 hereof,
which account or accounts must be an Eligible Account or Accounts.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
CERTIFICATE PRINCIPAL BALANCE: On any date and with respect to each
Certificate, the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof less the sum of (i) all amounts previously
distributed to the Holder of such Certificate (or any predecessor Certificate)
with respect to principal pursuant to Section 4.02 and (ii) all amounts of
Realized Losses previously allocated to such Certificate (or any predecessor
Certificate) pursuant to Section 4.03; provided however, that the Certificate
Principal Balance for any class of Class A Certificates shall not exceed the
aggregate Principal Balance of the related Loan Group and provided further, that
the aggregate Certificate Principal Balance of the Class AR5 Certificates shall
not exceed the aggregate Principal Balance of the Class AR5 Mortgage Loans.
CERTIFICATE RATE: In the case of each Class of the Class A
Certificates and Class R Certificates and any Distribution Date, a per annum
rate equal to the weighted average, expressed as a percentage, of the Net
Mortgage Rates of the Mortgage Loans in the related Loan Group, weighted on the
basis of the respective Principal Balances of such Mortgage Loans immediately
preceding such Distribution Date. Interest on the Certificates will be computed
on the basis of a 360-day year comprised of twelve 30-day months.
CERTIFICATE REGISTER: The register maintained pursuant to Section
6.02(a) hereof.
-6-
CERTIFICATEHOLDER or HOLDER: The Person in whose name a Certificate is
registered in the Certificate Register.
CLASS: Collectively, each class of Class A Certificates, each class of
Class I-A Certificates, each class of Class B certificates, the Class R
Certificates and the Class I-R Certificates..
CLASS A CERTIFICATES: The Class A-1, Class A-2, Class A-3, Class A-4,
the Class A-5, Class A-6, Class A-7, Class A-8 and Class A-9 Certificates.
CLASS A CUMULATIVE INTEREST SHORTFALL AMOUNT: On any Distribution Date
and with respect to any Class of Class A Certificates, an amount equal to (i)
any portion of the related Class A Interest Distribution Amount that was not
distributed to the Holders of such Class A Certificates on any preceding
Distribution Date less (ii) any amount described in clause (i) hereof that is
included in a Realized Loss that has been allocated to the Holders of such Class
A Certificates on or prior to such Distribution Date.
CLASS A INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class of Class A Certificates, (a) one-twelfth of the
product of (i) the aggregate Certificate Principal Balance of the Class A
Certificates as of the last day of the related Interest Accrual Period and (ii)
the related Certificate Rate, minus (b) the aggregate amount of Prepayment
Interest Shortfalls and Relief Act Shortfalls relating to Loan Group
representing such Class A Certificates and allocated to such Class A
Certificates pursuant to Section 4.05 on such Distribution Date.
CLASS A PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution Date and
with respect to any Class of Class A Certificates, an amount equal to the lesser
of (i) the balance of the Available Distribution Amount relating to the Loan
Group representing such Class of Class A Certificates remaining after the
distribution of all amounts required to be distributed pursuant to Section
4.02(a)(x)(ii) and (ii) the aggregate Certificate Principal Balance of such
Class.
CLASS A-1 CERTIFICATE: A Certificate, designated Class A-1 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS A-2 CERTIFICATE: A Certificate, designated Class A-2 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS A-3 CERTIFICATE: A Certificate, designated Class A-3 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS A-4 CERTIFICATE: A Certificate, designated Class A-4 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
-7-
CLASS A-5 CERTIFICATE: A Certificate, designated Class A-5 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS A-6 CERTIFICATE: A Certificate, designated Class A-6 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS A-7 CERTIFICATE: A Certificate, designated as Class A-7 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS A-8 CERTIFICATE: A Certificate, designated as Class A-8 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS A-9 CERTIFICATE: A Certificate, designated as Class A-9 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A hereto, and evidencing ownership of interests designated as "regular
interests" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS AR5 CERTIFICATES: The Class I-A, Class B and Class I-R
Certificates.
CLASS AR5 CUT-OFF DATE: November 1, 2001.
CLASS AR5 DELIVERY DATE: December 6, 2001.
CLASS AR5 DISTRIBUTION AMOUNT: The Available Distribution Amount
allocable to the Class AR5 Mortgage Loans.
CLASS AR5 MORTGAGE LOANS: Each of the Mortgage Loans listed on the
Mortgage Loan Schedule X.
CLASS AR5 NET MORTGAGE RATE: As to each Class AR5 Regular Interest and
the related Class AR5 Mortgage Loan, with respect to any Distribution Date, a
rate per annum equal to (a) the Mortgage Rate in effect as of the Due Date in
the preceding calendar month minus (b) the sum of the Servicing Fee Rate and the
Additional Servicing Fee Rate.
CLASS AR5 NET WEIGHTED AVERAGE MORTGAGE RATE: With respect to any
Distribution Date, the weighted average of the Class AR5 Net Mortgage Rates as
of the first day of the relate Due Period.
CLASS AR5 OPTIONAL TERMINATION: The purchase of the assets of REMIC I
pursuant to Section 10.01(b).
-8-
CLASS AR5 OPTIONAL TERMINATION DATE: The date fixed by the Servicer
for the purchase of the Class AR5 Mortgage Loans pursuant to Section 10.01(b).
CLASS AR5 PASS-THROUGH RATE: With respect to each Class of Class AR5
Certificates and each Distribution Date, the Class AR5 Net Weighted Average
Mortgage Rate.
CLASS AR5 REGULAR INTEREST: As defined in the Preliminary Statement
hereto.
CLASS I-A CERTIFICATE: A Certificate, designated Class I-A executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A-1 hereto, and evidencing ownership of interests designated as "regular
interests" in REMIC II for purposes of the REMIC Provisions.
CLASS I-A CUMULATIVE INTEREST SHORTFALL AMOUNT: On any Distribution
Date and with respect to any Class I-A Certificate, an amount equal to (i) any
portion of the related Class I-A Interest Distribution Amount that was not
distributed to the Holders of such Class I-A Certificates on any preceding
Distribution Date less (ii) any amount described in clause (i) hereof that is
included in a Realized Loss that has been allocated to the Holders of such Class
I-A Certificates on or prior to such Distribution Date.
CLASS I-A INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class I-A Certificates, (a) one-twelfth of the product of
(i) the aggregate Certificate Principal Balance of the Class I-A Certificates as
of the last day of the related Interest Accrual Period and (ii) the related
Class AR5 Pass-Through Rate, minus (b) the aggregate amount of Prepayment
Interest Shortfalls and Relief Act Shortfalls allocated to the Class I-A
Certificates pursuant to Section 4.05 on such Distribution Date and the Pro Rata
Allocation of the interest portion of Special Hazard Losses in excess of the
Special Hazard Coverage Amount, Fraud Losses in excess of the Fraud Coverage and
Bankruptcy Losses in excess of the Bankruptcy Coverage pursuant Section 4.03 on
such Distribution Date.
CLASS B CERTIFICATES: The Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
CLASS B PERCENTAGE: With respect to any date of determination and any
Class of Class B Certificates, the Certificate Principal Balances of the Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5 or Class B-6 Certificates, as
applicable, divided by the aggregate of the Certificate Principal Balances of
the Class B Certificates.
CLASS B-1 CERTIFICATE: A Certificate, designated Class B-1 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A-2 hereto, and evidencing ownership of interests designated as "regular
interests" in REMIC II for purposes of the REMIC Provisions.
CLASS B-1 CUMULATIVE INTEREST SHORTFALL AMOUNT: On any Distribution
Date and with respect to any Class B-1 Certificate, an amount equal to (i) any
portion of the related Class B-1 Interest Distribution Amount that was not
distributed to the Holders of such Class B-1 Certificates on any preceding
Distribution Date less (ii) any amount described in clause (i) hereof that is
included in a Realized Loss that has been allocated to the Holders of such Class
B-1 Certificates on or prior to such Distribution Date.
-9-
CLASS B-1 INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class B-1 Certificates, (a) one-twelfth of the product of
(i) the aggregate Certificate Principal Balance of the Class B-1 Certificates as
of the last day of the related Interest Accrual Period and (ii) the related
Class AR5 Pass-Through Rate, minus (b) the aggregate amount of Prepayment
Interest Shortfalls and Relief Act Shortfalls allocated to such Class B-1
Certificates pursuant to Section 4.05 on such Distribution Date and the Pro Rata
Allocation of the interest portion of Special Hazard Losses in excess of the
Special Hazard Coverage Amount, Fraud Losses in excess of the Fraud Coverage and
Bankruptcy Losses in excess of the Bankruptcy Coverage pursuant Section 4.03 on
such Distribution Date.
CLASS B-2 CERTIFICATE: A Certificate, designated Class B-2 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A-2 hereto, and evidencing ownership of interests designated as "regular
interests" in REMIC II for purposes of the REMIC Provisions.
CLASS B-2 CUMULATIVE INTEREST SHORTFALL AMOUNT: On any Distribution
Date and with respect to any Class B-2 Certificates, an amount equal to (i) any
portion of the related Class B-2 Interest Distribution Amount that was not
distributed to the Holders of such Class B-2 Certificates on any preceding
Distribution Date less (ii) any amount described in clause (i) hereof that is
included in a Realized Loss that has been allocated to the Holders of such Class
B-2 Certificates on or prior to such Distribution Date.
CLASS B-2 INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class B-2 Certificates, (a) one-twelfth of the product of
(i) the aggregate Certificate Principal Balance of the Class B-2 Certificates as
of the last day of the related Interest Accrual Period and (ii) the related
Class AR5 Pass-Through Rate, minus (b) the aggregate amount of Prepayment
Interest Shortfalls and Relief Act Shortfalls allocated to such Class B-2
Certificates pursuant to Section 4.05 on such Distribution Date and the Pro Rata
Allocation of the interest portion of Special Hazard Losses in excess of the
Special Hazard Coverage Amount, Fraud Losses in excess of the Fraud Coverage and
Bankruptcy Losses in excess of the Bankruptcy Coverage pursuant Section 4.03 on
such Distribution Date.
CLASS B-3 CERTIFICATE: A Certificate, designated Class B-3 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A-2 hereto, and evidencing ownership of interests designated as "regular
interests" in REMIC II for purposes of the REMIC Provisions.
CLASS B-3 CUMULATIVE INTEREST SHORTFALL AMOUNT: On any Distribution
Date and with respect to any Class B-3 Certificate, an amount equal to (i) any
portion of the related Class B-3 Interest Distribution Amount that was not
distributed to the Holders of such Class B-2 Certificates on any preceding
Distribution Date less (ii) any amount described in clause (i) hereof that is
included in a Realized Loss that has been allocated to the Holders of such Class
B-3 Certificates on or prior to such Distribution Date.
CLASS B-3 INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class B-3 Certificates, (a) one-twelfth of the product of
(i) the aggregate Certificate Principal Balance of the Class B-3 Certificates as
of the last day of the related Interest Accrual Period and (ii) the related
Class AR5 Pass-Through Rate, minus (b) the aggregate amount of Prepayment
Interest Shortfalls and Relief Act Shortfalls allocated to such Class B-3
Certificates pursuant to Section 4.05 on such Distribution Date and the Pro Rata
Allocation of the interest portion of
-10-
Special Hazard Losses in excess of the Special Hazard Coverage Amount, Fraud
Losses in excess of the Fraud Coverage and Bankruptcy Losses in excess of the
Bankruptcy Coverage pursuant Section 4.03 on such Distribution Date.
CLASS B-4 CERTIFICATE: A Certificate, designated Class B-4 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A-2 hereto, and evidencing ownership of interests designated as "regular
interests" in REMIC II for purposes of the REMIC Provisions.
CLASS B-4 CUMULATIVE INTEREST SHORTFALL AMOUNT: On any Distribution
Date and with respect to any Class B-4 Certificate, an amount equal to (i) any
portion of the related Class B-4 Interest Distribution Amount that was not
distributed to the Holders of such Class B-4 Certificates on any preceding
Distribution Date less (ii) any amount described in clause (i) hereof that is
included in a Realized Loss that has been allocated to the Holders of such Class
B-4 Certificates on or prior to such Distribution Date.
CLASS B-4 INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class B-4 Certificates, (a) one-twelfth of the product of
(i) the aggregate Certificate Principal Balance of the Class B-4 Certificates as
of the last day of the related Interest Accrual Period and (ii) the related
Class AR5 Pass-Through Rate, minus (b) the aggregate amount of Prepayment
Interest Shortfalls and Relief Act Shortfalls allocated to such Class B-4
Certificates pursuant to Section 4.05 on such Distribution Date and the Pro Rata
Allocation of the interest portion of Special Hazard Losses in excess of the
Special Hazard Coverage Amount, Fraud Losses in excess of the Fraud Coverage and
Bankruptcy Losses in excess of the Bankruptcy Coverage pursuant Section 4.03 on
such Distribution Date.
CLASS B-5 CERTIFICATE: A Certificate, designated Class B-5 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A-3 hereto, and evidencing ownership of interests designated as "regular
interests" in REMIC II for purposes of the REMIC Provisions.
CLASS B-5 CUMULATIVE INTEREST SHORTFALL AMOUNT: On any Distribution
Date and with respect to any Class B-5 Certificate, an amount equal to (i) any
portion of the related Class B-5 Interest Distribution Amount that was not
distributed to the Holders of such Class B-5 Certificates on any preceding
Distribution Date less (ii) any amount described in clause (i) hereof that is
included in a Realized Loss that has been allocated to the Holders of such Class
B-5 Certificates on or prior to such Distribution Date.
CLASS B-5 INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class B-5 Certificates, (a) one-twelfth of the product of
(i) the aggregate Certificate Principal Balance of the Class B-5 Certificates as
of the last day of the related Interest Accrual Period and (ii) the related
Class AR5 Pass-Through Rate, minus (b) the aggregate amount of Prepayment
Interest Shortfalls and Relief Act Shortfalls allocated to such Class B-5
Certificates pursuant to Section 4.05 on such Distribution Date and the Pro Rata
Allocation of the interest portion of Special Hazard Losses in excess of the
Special Hazard Coverage Amount, Fraud Losses in excess of the Fraud Coverage and
Bankruptcy Losses in excess of the Bankruptcy Coverage pursuant Section 4.03 on
such Distribution Date.
-11-
CLASS B-6 CERTIFICATE: A Certificate, designated Class B-6 executed
and authenticated by the Trustee in substantially the form set forth in EXHIBIT
A-3 hereto, and evidencing ownership of interests designated as "regular
interests" in REMIC II for purposes of the REMIC Provisions.
CLASS B-6 CUMULATIVE INTEREST SHORTFALL AMOUNT: On any Distribution
Date and with respect to any Class B-6 Certificate, an amount equal to (i) any
portion of the related Class B-6 Interest Distribution Amount that was not
distributed to the Holders of such Class B-6 Certificates on any preceding
Distribution Date less (ii) any amount described in clause (i) hereof that is
included in a Realized Loss that has been allocated to the Holders of such Class
B-6 Certificates on or prior to such Distribution Date.
CLASS B-6 INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class B-6 Certificates, (a) one-twelfth of the product of
(i) the aggregate Certificate Principal Balance of the Class B-6 Certificates as
of the last day of the related Interest Accrual Period and (ii) the related
Class AR5 Pass-Through Rate, minus (b) the aggregate amount of Prepayment
Interest Shortfalls and Relief Act Shortfalls allocated to such Class B-6
Certificates pursuant to Section 4.05 on such Distribution Date and the Pro Rata
Allocation of the interest portion of Special Hazard Losses in excess of the
Special Hazard Coverage Amount, Fraud Losses in excess of the Fraud Coverage and
Bankruptcy Losses in excess of the Bankruptcy Coverage pursuant Section 4.03 on
such Distribution Date.
CLASS I-R CERTIFICATE: A Certificate executed and authenticated by the
Trustee in substantially the form set forth in EXHIBIT B-4 and designated as a
Class I-R Certificate and evidencing an the Class R-I Component which represents
the interest designated as a "residual interest" in REMIC I for purposes of the
REMIC Provisions and the Class R-II Component which represents the interest
designated as a "residual interest" in REMIC II for purposes of the REMIC
Provisions.
CLASS R CERTIFICATE: A Certificate executed and authenticated by the
Trustee in substantially the form set forth in EXHIBIT B and designated as a
Class R Certificate and evidencing an interest designated as a "residual
interest" in the Trust REMIC for purposes of the REMIC Provisions.
CLASS R INTEREST DISTRIBUTION AMOUNT: On any Distribution Date,
one-twelfth of the product of (i) the aggregate Certificate Principal Balance of
the Class R Certificates as of the last day of the related Interest Accrual
Period and (ii) the related Certificate Rate.
CLASS R PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution Date,
the lesser of (a) the balance of the Available Distribution Amount relating to
Loan Group 9 remaining after the distribution of all amounts required to be
distributed pursuant to Section 4.02(a)(x)(i) and (b) the aggregate Certificate
Principal Balance of the Class R Certificates.
CLASS R-I INTEREST DISTRIBUTION AMOUNT: On any Distribution Date and
with respect to any Class R-II Component, (a) one-twelfth of the product of (i)
the aggregate Certificate Principal Balance of the Class R-II Component as of
the last day of the related Interest Accrual Period and (ii) the related Class
AR5 Pass-Through Rate, minus (b) the aggregate amount of Prepayment Interest
Shortfalls and Relief Act Shortfalls allocated to such Class R-II Component
pursuant to Section 4.05 on such Distribution Date.
-12-
CLASS R-I COMPONENT: A component of the Class I-R Certificate
comprising the residual interest in REMIC I which will, together with the Class
R-II Component, be represented by the Class I-R Certificate.
CLASS R-II COMPONENT: A component of the Class I-R Certificate
comprising the residual interest in REMIC II which will, together with the Class
R-I Component, be represented by the Class I-R Certificate.
CLASS Y CERTIFICATE: A certificate evidencing an undivided interest in
some or all of the uncertificated interests relating to the Class Y Mortgage
Loans. If a Class Y Certificate represents an interest in less than all of the
Class Y Regular Interests, such certificate shall include a list of the Class Y
Mortgage Loans in which it represents an interest and the percentage interest
that it represents in each Class Y Regular Interest related to each of such
Mortgage Loans.
CLASS Y DISTRIBUTION AMOUNT: With respect to each Distribution Date,
the Available Distribution Amount allocable to the Class Y Mortgage Loans,
subject to the exchange provisions provided in Section 6.01(b).
CLASS Y MORTGAGE LOANS: Each of the Mortgage Loans listed on the
Mortgage Loan Schedule Y.
CODE: The Internal Revenue Code of 1986.
COMPENSATING INTEREST: With respect to any Distribution Date,
calculated separately for the Loan Groups as a group, the Class AR5 Mortgage
Loans and the Class Y Mortgage Loans, an amount equal to interest shortfalls
resulting from Principal Prepayments in Full by a Mortgagor during the related
Prepayment Period, but not more than the lesser of (a) one-twelfth of 0.125% of
the aggregate Principal Balance of the Mortgage, or, with respect to the Class
AR5 Mortgage Loans and Class AR5 Certificates only, one-twelfth of 0.25% of the
aggregate Principal Balance of the Class AR5 Mortgage Loans immediately
preceding such Distribution Date and (b) the sum of the Servicing Fee plus, with
respect to the Class AR5 Certificates only, the Additional Servicing Fee with
respect to the Class AR5 Mortgage Loans to which the Servicer is entitled on
such Distribution Date, all income and gain on amounts held in the Custodial
Account that are payable to the Certificateholders with respect to such
Distribution Date and any other servicing compensation to which the Servicer may
be entitled on such Distribution Date pursuant to the terms hereof.
CORPORATE TRUST OFFICE: The designated office of the Trustee in the
State of Illinois at which at any particular time its corporate trust business
shall be administered, which office at the date of the execution of this
Agreement is located at 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx
00000-0481.
CURTAILMENT: Any Principal Prepayment made by a Mortgagor which is not
a Principal Prepayment in Full.
CUSTODIAL ACCOUNT: The deposit account or accounts created and
maintained by the Servicer pursuant to Section 3.07 hereof in a depository
institution which may be the Servicer for the benefit of the Certificateholders,
which account or accounts must be Eligible Accounts.
CUT-OFF DATE: December 1, 1999.
-13-
DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under the Mortgage Loan, or that results
in a permanent forgiveness of principal, which valuation in either case results
from a proceeding under the Bankruptcy Code.
DEFINITIVE CERTIFICATES: The Class A, Class R and Class I-R
Certificates and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 6.02(i).
DELETED MORTGAGE LOAN: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
DELIVERED: With respect to any Eligible Investment, when the steps
applicable to such item as specified below are completed:
(i) if such item is an instrument, delivering such instrument to
the Trustee endorsed to the Trustee or its nominee or custodian or endorsed in
blank;
(ii) if such item is a certificated security, delivering such
certificated security to the Trustee in bearer form or in registered form issued
to the Trustee or endorsed to the Trustee or its nominee or custodian or
endorsed in blank by an effective endorsement;
(iii) if such item is a security entitlement other than a United
States Security Entitlement, causing a securities intermediary (who shall
maintain the related financial asset in a quantity corresponding to the
aggregate of all security entitlements it has established with respect to such
financial asset) to indicate by book entry that such security entitlement has
been credited to a securities account of the Trustee or its nominee or custodian
with such securities intermediary;
(iv) if such item is a United States Security Entitlement,
causing a securities intermediary (who shall maintain the related financial
asset in a quantity corresponding to the aggregate of all security entitlements
it has established with respect to such financial asset) to indicate by book
entry that such United States Security Entitlement has been credited to a
securities account of the Trustee or its nominee or custodian with such
securities intermediary;
(v) if such item is a securities account, causing the securities
intermediary to indicate by book entry that all security entitlements carried in
the securities account have been credited to such securities account; and
(vi) if such item is an uncertificated security, causing the
issuer of such uncertificated security to register the Trustee or its nominee or
custodian as the registered owner of such uncertificated security.
DELIVERY DATE: December 28, 1999.
-14-
DEPOSITOR: Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
DEPOSITORY: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: The 15th day (or if such 15th day is not a
Business Day, the Business Day immediately preceding such 15th day) of the month
of the related Distribution Date.
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 Freddie Mac, a majority of its
board of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), and(iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code. A
Disqualified Organization also includes any "electing large partnership" as
defined in Section 775(a) of the Code and any other Person so designated by the
Trustee based upon an Opinion of Counsel that the holding of an ownership
interest in a Class R or Class I-R Certificate by such Person may cause any of
the Trust REMIC, REMIC I or REMIC II or any Person having an ownership interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the transfer of an ownership interest in a Class R Certificate to such
Person. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
DISTRIBUTION DATE: The 19th day of each month or, if such 19th day is
not a Business Day the next succeeding Business Day, commencing in January,
1999, with respect to the Class A and Class R Certificates, and commencing in
December 2001, with respect to the Class AR5 Certificates and the Class Y
Certificates.
DOWNGRADE EVENT: The date upon which the long-term unsecured debt
rating of Washington Mutual is downgraded by Xxxxx'x below A2.
DUE DATE: The first day of the calendar month in which the related
Distribution Date occurs.
-15-
DUE PERIOD: The period from and including the second day of the
calendar month preceding the calendar month in which any Distribution Date
occurs to and including the first day of the calendar month in which such
Distribution Date occurs.
XXXX & XXXXXX: Xxxx & Xxxxxx Credit Rating Co., or any successor
thereto.
ELIGIBLE ACCOUNT: Either (i) an account or accounts maintained with a
federal or state-chartered depository institution or trust company (which may be
the Servicer or an affiliate of the Servicer or which may be the Trustee or an
affiliate of the Trustee) the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated not lower than P-1 in the case of
Xxxxx'x, A-2 in the case of S&P and A-1+ in the case of Duff and Xxxxxx,
provided that so long as Washington Mutual is the Servicer, any account
maintained with the Servicer shall be an Eligible Account if the long-term
unsecured debt obligations of Washington Mutual are rated A2 by Xxxxx'x, (ii) an
account or accounts the deposits in which are fully insured by the FDIC,
provided that any such deposits not so insured shall be otherwise maintained
such that (as evidenced by an Opinion of Counsel delivered to the Trustee) the
applicable Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any collateral
(which shall be limited to Eligible Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company with which such account is maintained, (iii) a
trust account or accounts maintained with the Trustee or the trust department of
a federal or state chartered depository institution or trust company acting in
its fiduciary capacity, provided that any such state chartered depository
institution is subject to regulation regarding funds on deposit substantially
similar to the regulations set forth in 12 C.F.R. ss. 9.10(b) or (iv) any
account maintained at any Federal Home Loan Bank.
ELIGIBLE INVESTMENTS: At any time, any one or more of the following
obligations, instruments and securities:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and credit of the United
States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving the highest
long-term rating of Xxxxx'x, S&P and Xxxx and Xxxxxx;
(iii) commercial paper (having original maturities of not more
than 270 days) which is then rated in the highest commercial paper rating
category of Xxxxx'x, S&P and Xxxx and Xxxxxx;
(iv) certificates of deposit, demand or time deposits, federal
funds or bankers' acceptances (in each case having maturities of not more than
365 days) issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal and/or state banking authorities,
provided that the commercial paper and/or long-term debt obligations of such
depository institution or trust company (or in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the commercial paper or long-term debt obligations of
-16-
such holding company) are then rated in the highest rating category of Xxxxx'x,
S&P and Duff and Xxxxxx, in the case of commercial paper, and in the highest
category in the case of long-term debt obligations, and, in the case of
short-term debt obligations which have maturities of 30 days or less, a rating
of P-1 by Xxxxx'x, A-2 by S&P and a rating of A-1+ by Xxxx and Xxxxxx;
(v) demand or time deposits or certificates of deposit issued by
(a) any Federal Home Loan Bank or (b) any bank or trust company or savings
association which is rated at least "A" by Xxxx and Xxxxxx which has combined
capital, surplus and undistributed profits of not less than $50 million and
fully insured by the FDIC;
(vi) repurchase obligations with respect to any security
described in (i) and (ii) above or any other security issued or guaranteed by an
agency or instrumentality of the United States, in either case entered into with
a depository institution or trust company (acting as principal) described in
(iv) above;
(vii) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States or any state
thereof which, at the time of such investment or contractual commitment
providing for such investments are then rated in the highest rating category of
Xxxxx'x, S&P and Xxxx and Xxxxxx; and
(viii) units of taxable money-market portfolios rated in the
highest rating category by Xxxxx'x, S&P and Duff and Xxxxxx and not restricted
to obligations issued or guaranteed by any agency or instrumentality of the
United States or entities whose obligations are backed by the full faith and
credit of the United States and repurchase agreements collateralized by such
obligations.
PROVIDED that (A) such obligation or security is held for a temporary period
pursuant to Treasury Regulations Section 1.860G-2(g)(1), and (B) Eligible
Investments shall include only such obligations or securities that are payable
on demand or mature on or before the (i) Business Day immediately preceding the
next Distribution Date with respect to amounts on deposit in the Certificate
Account and (ii) the second Business Day immediately preceding the next
Distribution Date with respect to amounts on deposit in the Custodial Account.
In addition, no Eligible Investment which incorporates a penalty for early
withdrawal will be used unless the maturity of such Eligible Investment is on or
before the Business Day immediately preceding the next Distribution Date.
ESCROW ACCOUNT: As defined in Section 3.08 hereof.
EVENT OF DEFAULT: As defined in Section 8.01 hereof.
XXXXXX XXX: 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.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FINAL DISTRIBUTION DATE: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01, which Final Distribution Date shall in no event be later than the end of
the 90-day liquidation period described in Section 10.03.
-17-
FRAUD COVERAGE: During the period prior to the first anniversary of
the Class AR5 Cut-off Date, 2.00% of the aggregate principal balance of the
Class AR5 Mortgage Loans as of the Cut-off Date (the "Initial Fraud Coverage"),
reduced by Fraud Losses allocated to the Class AR Certificates since the Class
AR5 Cut-off Date; during the period from the first anniversary of the Class AR5
Cut-off Date to (but not including) the fifth anniversary of the Class AR5
Cut-off Date, the amount of the Fraud Coverage on the most recent previous
anniversary of the Class AR5 Cut-off Date (calculated in accordance with the
second sentence of this definition) reduced by Fraud Losses allocated to the
Class AR5 Certificates since such anniversary; and during the period on and
after the fifth anniversary of the Cut-off Date, zero. On each anniversary of
the Class AR5 Cut-off Date, the Fraud Coverage shall be reduced to the lesser of
(i) on the first, second, third and fourth anniversaries of the Class AR5
Cut-off Date, 1.00% of the aggregate principal balance of the Mortgage Loans as
of the Due Date in the preceding month and (ii) the excess of the Initial Fraud
Coverage over cumulative Fraud Losses allocated to the Class AR5 Certificates
since the Class AR5 Cut-off Date.
The Fraud Coverage may be reduced upon written confirmation from the
Rating Agencies that such reduction will not adversely affect the then current
ratings assigned to the Certificates by the Rating Agencies.
FRAUD LOSS: A Realized Loss (or portion thereof) with respect to a
Mortgage Loan arising from any action, event or state of facts with respect to
such Mortgage Loan that involved or arose out of any dishonest, fraudulent,
criminal, negligent or knowingly wrongful act, error or omission by the
Mortgagor, originator (or assignee thereof) of such Mortgage Loan, an owner of
the Mortgage Loan or any servicer in connection with the origination thereof.
FREDDIE MAC: 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.
GROUP 1 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-1. The Group 1 Loans relate to the Class
A-1 Certificates.
GROUP 2 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-2. The Group 2 Loans relate to the Class
A-2 Certificates.
GROUP 3 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-3. The Group 3 Loans relate to the Class
A-3 Certificates.
GROUP 4 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-4. The Group 4 Loans relate to the Class
A-4 Certificates.
GROUP 5 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-5. The Group 5 Loans relate to the Class
A-5 Certificates.
GROUP 6 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-6. The Group 6 Loans relate to the Class
A-6 Certificates.
GROUP 7 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-7. The Group 7 Loans relate to the Class
A-7 Certificates.
-18-
GROUP 8 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-8. The Group 8 Loans relate to the Class
A-8 Certificates.
GROUP 9 LOANS: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit C-9. The Group 9 Loans relate to the Class
A-9 and Class R Certificates.
INDEX: With respect to each Mortgage Loan that does not bear a fixed
Mortgage Rate, either the One-Year CMT Index or the One-Year MTA Index.
INITIAL CERTIFICATE PRINCIPAL BALANCE: With respect to each Class of
Certificates, the Certificate Principal Balance of such Class of Certificates or
interests as of the Cut-off Date as set forth in the Preliminary Statement
hereto.
INSURANCE PROCEEDS: Amounts paid pursuant to any insurance policy with
respect to a Mortgage Loan that have not been used to restore the related
property.
INTEREST ACCRUAL PERIOD: With respect to any Distribution Date, the
calendar month preceding such Distribution Date.
LIQUIDATED LOAN: With respect to any Distribution Date, a Mortgage
Loan which, as of the close of business on the Business Day next preceding the
related Determination Date, (a) has been liquidated through deed in lieu of
foreclosure, sale in foreclosure, trustee's sale or other realization as
provided by applicable law of real property subject to the related Mortgage and
any security agreements or (b) with respect to which payment under related
private mortgage insurance or hazard insurance and/or from any public or
governmental authority on account of a taking or condemnation of any such
property has been received; PROVIDED, HOWEVER, that any REO Property shall not
be treated as a Liquidated Loan until such property has been finally liquidated.
LIQUIDATION EXPENSES: Customary and reasonable "out of pocket"
expenses incurred by the Servicer (or the related Sub-Servicer) in connection
with the liquidation of any defaulted Mortgage Loan and not recovered by the
Servicer (or the related Sub-Servicer) under a Primary Mortgage Insurance Policy
for reasons other than the Servicer's failure to comply with Section 3.10
hereof, such expenses including, without limitation, legal fees and expenses,
any unreimbursed amount expended by the 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 the Servicer's failure to comply with Section 3.11 hereof.
LIQUIDATION PROCEEDS: Amounts other than Insurance Proceeds received
in connection with the liquidation of a defaulted Mortgage Loan, whether through
trustee's sale, foreclosure sale or otherwise or amounts received in connection
with any condemnation or partial release of a Mortgaged Property.
LOAN GROUP: Any or all of the Loan Group 1, Loan Group 2, Loan Group
3, Loan Group 4, Loan Group 5, Loan Group 6, Loan Group 7, Loan Group 8 and Loan
Group 9.
LOAN GROUP 1: The group of Mortgage Loans comprised of the Group 1
Loans.
LOAN GROUP 2: The group of Mortgage Loans comprised of the Group 2
Loans.
-19-
LOAN GROUP 3: The group of Mortgage Loans comprised of the Group 3
Loans.
LOAN GROUP 4: The group of Mortgage Loans comprised of the Group 4
Loans.
LOAN GROUP 5: The group of Mortgage Loans comprised of the Group 5
Loans.
LOAN GROUP 6: The group of Mortgage Loans comprised of the Group 6
Loans.
LOAN GROUP 7: The group of Mortgage Loans comprised of the Group 7
Loans.
LOAN GROUP 8: The group of Mortgage Loans comprised of the Group 8
Loans.
LOAN GROUP 9: The group of Mortgage Loans comprised of the Group 9
Loans.
LOAN-TO-VALUE RATIO: As of any date, the fraction, expressed as a
percentage, the numerator of which is the Principal Balance of the related
Mortgage Loan at the date of determination and the denominator of which is the
Appraised Value of the related Mortgaged Property or, in the case of a
Replacement Mortgage Loan, the appraised value of the related Mortgaged Property
as of the date of its origination.
MARGIN: As to each Mortgage Loan that does not bear a fixed Mortgage
Rate, the fixed percentage set forth in the related Mortgage Note, which
percentage is added to the applicable Index on each Adjustment Date to determine
(subject to rounding in accordance with the related Mortgage Note, the
applicable Periodic Cap, Maximum Interest Rate and Minimum Interest Rate) the
interest rate to be borne by such Mortgage Loan until the next Adjustment Date
thereof.
MATURITY DATE: The latest possible maturity date, solely for purposes
of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the
Certificate Principal Balance, if any, of each Class of Regular Certificates
would be reduced to zero as determined under a hypothetical scenario which
assumes that such date is the Distribution Date in the month of the maturity
date of the Mortgage Loan with the latest scheduled maturity date. The Maturity
Date for each Class of Regular Certificates is the Distribution Date occurring
in November 2039.
MAXIMUM INTEREST RATE: As to any Mortgage Loan that does not bear a
fixed Mortgage Rate, the maximum interest rate that may be borne by such
Mortgage Loan as set forth in the related Mortgage Note, which rate may be
applicable to such Mortgage Loan at any time during the life of such Mortgage
Loan.
MINIMUM INTEREST RATE: As to any Mortgage Loan that does not bear a
fixed Mortgage Rate, the minimum interest rate that may be borne by such
Mortgage Loan as set forth in the related Mortgage Note, which rate may be
applicable to such Mortgage Loan at any time during the life of such Mortgage
Loan.
MONTHLY ADVANCE: With respect to Loan Group 5, Loan Group 6, Loan
Group 7, Loan Group 8, Loan Group 9, the Class AR5 Mortgage Loans and the Class
Y Mortgage Loans, the aggregate of the advances made by or on behalf of the
Servicer with respect to any Distribution Date pursuant to Section 5.01 hereof
relating to the Mortgage Loans in such Loan Group, the Class AR5 Mortgage Loans
or the Class Y Mortgage Loans, the amount of any such advances being equal to
the regular monthly installments of principal and interest on the related
Mortgage Loans
-20-
that were due on the related Due Date and delinquent as of the close of business
on the related Determination Date, after adjustment of any delinquent interest
payment to be equal to interest at a rate equal to the Net Mortgage Rate or
Class AR5 Net Mortgage Rate, in the case of the Class AR5 Mortgage Loans, on the
Principal Balance of such Mortgage Loans, less the aggregate amount of any such
delinquent payments that the Servicer has determined would constitute a
Nonrecoverable Advance if made.
MONTHLY PAYMENT: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
MOODY'S: Xxxxx'x Investors Service, Inc. or any successor thereto.
MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on a fee simple or leasehold estate in real property securing a
Mortgage Note.
MORTGAGE FILE: For each Mortgage Loan, the Trustee Mortgage File and
the Servicer Mortgage File.
MORTGAGE LOAN: Each 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, evidenced by a Mortgage Note and secured by a Mortgage,
the mortgage loans so held being identified in the Mortgage Loan Schedule, as
amended from time to time.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement
dated as of December 1, 1999 between the Depositor, Credit Suisse First Boston
Corporation and the Seller, pursuant to which the Depositor purchased the
Mortgage Loans from the Seller.
MORTGAGE LOAN REPURCHASE PRICE: The price, calculated as set forth in
Section 10.01(a), to be paid in connection with the repurchase of the Mortgage
Loans pursuant to an Optional Termination of the Trust Fund.
MORTGAGE LOAN SCHEDULE: The list of Mortgage Loans transferred to the
Trustee as part of the Trust Fund for the Certificates and from time to time
subject to this Agreement (as from time to time amended by the Servicer to
reflect the addition of Replacement Mortgage Loans and the deletion of Deleted
Mortgage Loans pursuant to the provisions of this Agreement), attached hereto as
EXHIBIT C-1 (with respect to the Group 1 Loans), EXHIBIT C-2 (with respect to
the Group 2 Loans), EXHIBIT C-3 (with respect to the Group 3 Loans), EXHIBIT C-4
(with respect to the Group 4 Loans), EXHIBIT C-5 (with respect to the Group 5
Loans), EXHIBIT CE-6 (with respect to the Group 6 Loans), EXHIBIT C-7 (with
respect to the Group 7 Loans), EXHIBIT C-8 (with respect to the Group 8 Loans)
and EXHIBIT C-9 (with respect to the Group 9 Loans), setting forth the following
information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the city, state and zip code for each Mortgaged Property;
(iii) the applicable Index;
(iv) the Margin, if applicable;
(v) the Maximum Interest Rate, if applicable;
-21-
(vi) the Minimum Interest Rate, if applicable;
(vii) the original term to maturity;
(viii) the remaining term to maturity as of the Cut-off Date;
(ix) the original principal balance;
(x) the Principal Balance as of the Cut-off Date;
(xi) the first Due Date;
(xii) the Monthly Payment in effect as of the Cut-off Date;
(xiii) the Loan-to-Value Ratio at origination;
(xiv) the Appraised Value of the Mortgaged Property;
(xv) the Net Mortgage Rate as of the Cut-off Date;
(xvi) the next Adjustment Date, if applicable;
(xvii) the initial Adjustment Date, if applicable;
(xviii) the Mortgage Rate as of the Cut-off Date, if applicable;
(xix)a code indicating whether the Mortgaged Property is either
(a) a detached single-family dwelling or a de minimis planned unit development,
(b) a condominium unit or a dwelling in a planned unit development, or (c) a
two- to four-family residential property;
(xx) a code indicating whether the Mortgaged Property at the time
of origination was represented to be owner-occupied; and
(xxi) the purpose for which the financing was made.
Such schedule shall also set forth the total of the amounts described under (ix)
above for all of the Mortgage Loans. Such schedule may be in the form of more
than one list collectively setting forth all of the information required and
shall also be in a computer-readable format acceptable to the Trustee.
MORTGAGE LOAN SCHEDULE X: The list of Mortgage Loans attached as
Exhibit X and part of the Trust Fund for the Class AR5 Certificates and from
time to time subject to this Agreement (as from time to time amended by the
Servicer to reflect the addition of Replacement Mortgage Loans and the deletion
of Deleted Mortgage Loans pursuant to the provisions of this Agreement), (with
respect to the Class AR5 Mortgage Loans), setting forth the following
information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the city, state and zip code for each Mortgaged Property;
(iii) the applicable Index;
(iv) the Margin;
(v) the Maximum Interest Rate;
(vi) the Minimum Interest Rate;
(vii) the original term to maturity;
-22-
(viii) the remaining term to maturity as of the Class AR5 Cut-off
Date;
(ix) the original principal balance;
(x) the Principal Balance as of the Class AR5 Cut-off Date;
(xi) the first Due Date;
(xii) the Monthly Payment in effect as of the Class AR5 Cut-off
Date;
(xiii) the Loan-to-Value Ratio at origination;
(xiv) the Appraised Value of the Mortgaged Property;
(xv) the Class AR5 Net Mortgage Rate as of the Class AR5 Cut-off
Date;
(xvi) the next Adjustment Date following the Class AR5 Cut-off
Date;
(xvii) the initial Adjustment Date;
(xviii) the Mortgage Rate as of the Class AR5 Cut-off Date;
(xix) a code indicating whether the Mortgaged Property is either
(a) a detached single-family dwelling or a de minimis planned unit development,
(b) a condominium unit or a dwelling in a planned unit development, or (c) a
two- to four-family residential property;
(xx) a code indicating whether the Mortgaged Property at the time
of origination was represented to be owner-occupied; and
(xxi) the purpose for which the financing was made.
Such schedule shall also set forth the total of the amounts described under (x)
above for all of the Class AR5 Mortgage Loans. Such schedule may be in the form
of more than one list collectively setting forth all of the information required
and shall also be in a computer-readable format acceptable to the Trustee.
MORTGAGE LOAN SCHEDULE Y: The list of Mortgage Loans attached as
Exhibit Y and part of the Trust Fund for the Class Y Certificates and from time
to time subject to this Agreement (as from time to time amended by the Servicer
to reflect the addition of Replacement Mortgage Loans and the deletion of
Deleted Mortgage Loans pursuant to the provisions of this Agreement), (with
respect to the Class Y Mortgage Loans), setting forth the following information
with respect to each Mortgage Loan:
(i) the loan number;
(ii) the city, state and zip code for each Mortgaged Property;
(iii) the applicable Index;
(iv) the Margin;
(v) the Maximum Interest Rate;
(vi) the Minimum Interest Rate;
(vii) the original term to maturity;
(viii) the remaining term to maturity as of the Class AR5 Cut-off
Date;
(ix) the original principal balance;
-23-
(x) the Principal Balance as of the Class AR5 Cut-off Date;
(xi) the first Due Date;
(xii) the Monthly Payment in effect as of the Class AR5 Cut-off
Date;
(xiii) the Loan-to-Value Ratio at origination;
(xiv) the Appraised Value of the Mortgaged Property;
(xv) the Net Mortgage Rate as of the Class AR5 Cut-off Date;
(xvi) the next Adjustment Date following the Class AR5 Cut-off
Date;
(xvii) the initial Adjustment Date;
(xviii) the Mortgage Rate as of the Class AR5 Cut-off Date;
(xix) a code indicating whether the Mortgaged Property is either
(a) a detached single-family dwelling or a de minimis planned unit development,
(b) a condominium unit or a dwelling in a planned unit development, or (c) a
two- to four-family residential property;
(xx) a code indicating whether the Mortgaged Property at the time
of origination was represented to be owner-occupied; and
(xxi) the purpose for which the financing was made.
Such schedule shall also set forth the total of the amounts described under (x)
above for all of the Class Y Mortgage Loans. Such schedule may be in the form of
more than one list collectively setting forth all of the information required
and shall also be in a computer-readable format acceptable to the Trustee.
MORTGAGE NOTE: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan, including a lost note
affidavit with a copy of the related note.
MORTGAGE RATE: The annual rate of interest borne by a Mortgage Note,
which is set forth in the related Mortgage Note. The Mortgage Rate for each
Mortgage Loan that is not a fixed Mortgage Rate as of the Cut-off Date will be
adjusted on each Adjustment Date to a rate equal to the sum of the Index
applicable to such Adjustment Date and the Margin, rounded to or up to the
nearest multiple of 0.125%, as specified in the related Mortgage Note, subject
to the application of the applicable Periodic Cap, Maximum Interest Rate and
Minimum Interest Rate.
MORTGAGED PROPERTY: The underlying property securing a Mortgage Loan.
MORTGAGOR: Each obligor on a Mortgage Note.
NET MORTGAGE RATE: As to each Mortgage Loan, with respect to any
Distribution Date, a rate per annum equal to (a) the Mortgage Rate in effect as
of the Due Date in the preceding calendar month minus (b) the Servicing Fee
Rate.
1933 ACT: The Securities Act of 1933, as amended.
1934 ACT: The Securities Exchange Act of 1934, as amended.
-24-
NONRECOVERABLE ADVANCE: The portion of any Monthly Advance or any
other advance previously made or proposed to be made by the Servicer that, in
the good faith judgment of the Servicer, will not or, in the case of a current
delinquency, would not be, ultimately recoverable by the Servicer from Insurance
Proceeds or Liquidation Proceeds (net of Liquidation Expenses) with respect to
the related Mortgage Loan.
OFFICERS' CERTIFICATE: A certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, the President, a Group President, an
Executive Vice President, a Senior Executive Vice President, Senior Vice
President, a Vice President, or other authorized officer, and by the Treasurer,
the Secretary, or one of the Assistant Vice Presidents, Assistant Treasurers or
Assistant Secretaries of the Depositor, the Seller, the Servicer or the Trustee,
as the case may be, and delivered to the Depositor, the Seller, the Servicer or
the Trustee, as required by this Agreement.
ONE-YEAR CMT INDEX: A per annum rate equal to the weekly average yield
on U.S. Treasury securities adjusted to a constant maturity of one year as
reported by the Federal Reserve Board in statistical Release No. H.15(519) as of
the date specified in the related Mortgage Note, or, in the event that such
index is no longer available, an index selected by the Servicer and reasonably
acceptable to the Trustee that is based on comparable information.
ONE-YEAR MTA INDEX: A per annum rate equal to the twelve-month average
of the annual yields on U.S. Treasury securities adjusted to a constant maturity
of one year as reported by the Federal Reserve Board yields in statistical
release entitled "Selected Interest Rates-G13" which is published on the first
Tuesday of each month or, in the event that such index is no longer available,
an index selected by the Servicer and reasonably acceptable to the Trustee that
is based on comparable information.
OPINION OF COUNSEL: A written opinion of counsel, who may be counsel
for the Depositor or the Servicer, reasonably acceptable to the Trustee. With
respect to any opinion dealing with the definition of Eligible Account in this
Article I, Sections 2.04 or 7.04 hereof or with the qualification of a REMIC or
compliance with the REMIC Provisions, such counsel must (i) in fact be
independent of the Depositor and the Servicer, (ii) not have any direct
financial interest in the Depositor or the Servicer or in any affiliate of
either of them and (iii) not be connected with the Depositor or the Servicer as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions.
OPTIONAL TERMINATION: The purchase of the Mortgage Loans pursuant to
Section 10.01(a).
OPTIONAL TERMINATION DATE: The date fixed by the Servicer for the
purchase of the Mortgage Loans pursuant to Section 10.01(a).
OUTSTANDING MORTGAGE LOAN: As to any date of determination, a Mortgage
Loan (including an REO Property) which was not the subject of a Principal
Prepayment in Full, Cash Liquidation or REO Disposition and which was not
purchased, deleted or substituted for prior to such date of determination
pursuant to Section 2.02 or 2.04.
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
-25-
fund or an organization described in Section 1381(a) of the Code, (b) any
partnership, trust or estate or (c) any person holding a Class A Certificate as
nominee for another person.
PERCENTAGE INTEREST: The percentage interest (which may be expressed
as a fraction) evidenced by any Certificate, which (a) in the case of each Class
of the Class A and Class AR5 Certificates (other than the Class I-R
Certificates), is equal to a fraction, the numerator of which is the Initial
Certificate Principal Balance of such Certificate, and the denominator of which
is equal to the aggregate Initial Certificate Principal Balances of all
Certificates of the same Class and (b) in the case of each the Class R and Class
I-R Certificates, is set forth on the face thereof.
PERIODIC CAP: With respect to each Mortgage Loan that does not bear a
fixed Mortgage Rate, the maximum increase or decrease in the Mortgage Rate on
any Adjustment Date, as specified in the related Mortgage Note.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
PREPAYMENT DISTRIBUTION PERCENTAGE: With respect to any Distribution
Date and the Class B Certificates with the highest payment priority and each
other Class of Class B Certificates that satisfies the Prepayment Distribution
Trigger, such class's pro rata share, based on the Certificate Principal Balance
of such Class relative to the Certificate Principal Balance of the Class B
Certificates with the highest payment priority and each other Class of Class B
Certificates that satisfied the Prepayment Distribution Trigger.
PREPAYMENT DISTRIBUTION TRIGGER: With respect to any Distribution Date
and any Class of Class B Certificates, a test that shall be satisfied if the
fraction (expressed as a percentage) equal to the sum of the Certificate
Principal Balances of such Class of Certificates and each Class of Certificates
with a lower payment priority immediately prior to such Distribution Date
divided by the aggregate Principal Balance (or related real estate owned
properties) immediately prior to such Distribution Date is greater than or equal
to such percentage as of the Closing Date.
PREPAYMENT INTEREST SHORTFALL: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan secured by an REO Property) that was
the subject of a Principal Prepayment during the related Prepayment Period by
the Mortgagor, an amount equal to the excess of (a) one month's interest at the
Mortgage Rate on the Principal Balance of such Mortgage Loan before taking into
account such Principal Prepayment over (b) the sum of (i) the amount of interest
paid by the Mortgagor for such Prepayment Period to the date of such Principal
and (ii) the Compensating Interest payable by the Servicer on such Distribution
Date with respect to such Mortgage Loan.
PREPAYMENT PERIOD: With respect to any Distribution Date, the calendar
month prior to the month in which such Distribution Date occurs.
PRIMARY MORTGAGE INSURANCE POLICY: Each primary policy of mortgage
guaranty insurance with respect to the Mortgage Loans or any replacement policy
therefor.
PRINCIPAL BALANCE: With respect to any Mortgage Loan, as of the date
of any determination, the principal balance of such Mortgage Loan remaining to
be paid by the Mortgagor
-26-
as of the Cut-off Date after deduction of all payments due on or before the
Cut-off Date, reduced (but not below zero) by the sum of (i) all amounts
previously received or collected by the Servicer in respect of principal of such
Mortgage Loan subsequent to the Cut-off Date, other than amounts representing
payments due on such Mortgage Loan on or prior to the Cut-off Date; (ii) all
Liquidation Proceeds (net of Liquidation Expenses) and Insurance Proceeds
allocated to principal; (iii) all amounts allocable to the principal of such
Mortgage Loan previously paid by the Servicer as part of a Monthly Advance, in
each case which were distributed to Certificateholders pursuant to Section 4.02;
and (iv) all Realized Losses allocated to Certificateholders with respect
thereto on any previous Distribution Date. In the case of a Replacement Mortgage
Loan, "Principal Balance" shall mean, at the time of any determination, the
principal balance of such Replacement Mortgage Loan on the date of substitution
after deduction of all payments due on or before the Due Date in the month of
substitution, reduced by the sums described in (i) through (iv), above, after
such Due Date.
PRINCIPAL PREPAYMENT: Any Mortgagor payment or other recovery of
principal on a Mortgage Loan, including a recovery that takes the form of
Liquidation Proceeds or Insurance Proceeds, that is received in advance of its
scheduled Due Date and is not accompanied by an amount as to interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment made by a
Mortgagor of the Principal Balance of a Mortgage Loan.
PRO RATA ALLOCATION: With respect to the allocation of the principal
portion of Special Hazard Losses in excess of the Special Hazard Coverage, Fraud
Losses in excess of the Fraud Coverage and Bankruptcy Losses in excess of the
Bankruptcy Coverage among the Class AR5 Certificates, a pro rata allocation
according to their respective Certificate Principal Balances in reduction
thereof, and with respect to the allocation of the interest portion of such
Realized Losses among the Class AR5 Certificates, a pro rata allocation
according to the amount of interest accrued but unpaid on each such Class for
the related Interest Accrual Period, in reduction thereof.
PURCHASE PRICE: With respect to any Mortgage Loan required to be
purchased by the Seller or Servicer pursuant to Section 2.01, 2.02, 2.03, 2.04
or 3.12 the sum of (i) 100% of the Principal Balance of the Mortgage Loan on the
date of such purchase, (ii) accrued and unpaid interest to the next Due Date on
the Mortgage Loan at a rate equal to the Net Mortgage Rate or the Class AR5 Net
Mortgage Rate, in the case of a Class AR5 Mortgage Loan, and (iii) the amount of
any unreimbursed Monthly Advances and other advances made by the Servicer with
respect to such Mortgage Loan and reimbursable to the Servicer hereunder;
provided, however, that if the Servicer shall so choose, the Purchase Price with
respect to any Mortgage Loan purchased by the Servicer may be net of advances
that would otherwise be reimbursable to the Servicer and the Servicer shall have
no further entitlement to reimbursement for such advances. With respect to any
Mortgage Loan required or allowed to be purchased, the Servicer or Seller, as
applicable, shall deliver to the Trustee an Officers' 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 other state having jurisdiction over such insurer in connection with
the insurance policy issued by such insurer, duly authorized and licensed by the
insurance regulatory authority of the state of its principal place of business
and,
-27-
to the extent required by applicable law, each such other state, to transact a
mortgage guaranty insurance business in such state and each such other state and
to write the insurance provided by the insurance policy issued by it and
approved as an insurer by Freddie Mac or Xxxxxx Xxx and whose claims-paying
ability will not adversely affect the then current rating on the Certificates.
RATING AGENCIES: Xxxxx'x & S&P.
REALIZED LOSS: An amount determined by the Servicer and evidenced by
an Officers' Certificate delivered to the Trustee, in connection with any
Mortgage Loan equal to (a) with respect to any Liquidated Loan, the excess of
the Principal Balance of such Liquidated Loan plus interest thereon at a rate
equal to the applicable Net Mortgage Rate or Class AR5 Net Mortgage Rate, in the
case of a Class AR5 Mortgage Loan, from the Due Date as to which interest was
last paid up to the Due Date next succeeding such liquidation over proceeds, if
any, received in connection with such liquidation, after application of all
withdrawals permitted to be made by the Servicer from the related Custodial
Account with respect to such Mortgage Loan, (b) with respect to any Mortgage
Loan which has become the subject of a Deficient Valuation, the excess of the
Principal Balance of the Mortgage Loan over the principal amount as reduced in
connection with the proceedings resulting in the Deficient Valuation, (c) with
respect to any Mortgage Loan which has become the subject of a Debt Service
Reduction, the present value of all monthly Debt Service Reductions on such
Mortgage Loan, assuming that the Mortgagor pays each Monthly Payment on the
applicable Due Date and that no Principal Prepayments are received with respect
to such Mortgage Loan, discounted monthly at the applicable Mortgage Rate or (d)
the amount of any reduction by the Servicer to the principal balance of such
Mortgage Loan pursuant to Section 3.01 hereof.
RECORD DATE: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which the
applicable Distribution Date occurs provided however, that with respect to the
Distribution Date occurring in January 2000, the Record Date shall be the
Delivery Date and for the Class AR5 Certificates and the Class Y Certificates
with respect to the Distribution Date falling in December 2001, the Record Date
shall be the Class AR5 Delivery Date.
REGULAR CERTIFICATES: All of the Certificates other than the Class R
and Class I-R Certificates.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
RELIEF ACT SHORTFALLS: With respect to any Distribution Date and any
Mortgage Loan, the amount of any interest that is not collectible from the
Mortgagor during the related Due Period pursuant to the Relief Act or similar
legislation or regulations as in effect from time to time.
REMIC: A "real estate mortgage investment conduit," within the meaning
of Section 860D of the Code.
REMIC ELECTION: An election, for federal income tax purposes, to treat
certain assets as a REMIC.
REMIC REGULAR INTEREST: Any of the Class A Certificates, each
uncertificated interest representing a Class AR5 Mortgage Loan, each
uncertificated interest representing a Class Y Mortgage Loan and the Class AR5
Certificates.
-28-
REMIC PROVISIONS: Provisions of the federal income tax law relating to
REMIC, which appear at Section 860A through 860G of the Subchapter M of Chapter
1 of the Code and related provisions, and regulations promulgated thereunder, as
the foregoing may be in effect from time to time.
REMIC I: The corpus of the Trust Fund consisting of the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates, as to which a REMIC election
will be made pursuant to the provisions hereof, and having regular and residual
interests as provided herein.
REMIC I REGULAR INTERESTS: As defined in the Preliminary Statement
hereto.
REMIC II: The corpus of the Trust Fund consisting of Class AR5 Regular
Interests, as to which a REMIC election will be made pursuant to the provisions
hereof, and having regular and residual interests as provided herein.
REO ACQUISITION: The acquisition by the Servicer on behalf of the
Trustee for the benefit of the Certificateholders of any REO Property pursuant
to Section 3.13.
REO DISPOSITION: As to any REO Property, a determination by the
Servicer that it has received all Insurance Proceeds, Liquidation Proceeds, REO
Proceeds and other payments and recoveries (including proceeds of a final sale)
which the Servicer expects to be finally recoverable from the sale or other
disposition of the REO Property.
REO PROPERTY: Any Mortgaged Property acquired by or in the name of the
Trustee for the benefit of the Certificateholders in foreclosure or by
deed-in-lieu of foreclosure.
REO PROCEEDS: Proceeds, net of expenses, received in respect of any
REO Property (including, without limitation, proceeds from the rental of the
related Mortgaged Property).
REPLACEMENT MORTGAGE LOAN: A Mortgage Loan substituted by the Servicer
or Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officers' Certificate delivered to the Trustee,
(i) have an outstanding Principal Balance, after deduction of the principal
portion of the Monthly 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, after such deduction), not in excess of the
Principal Balance of the Deleted Mortgage Loan (the amount of any shortage to be
deposited by the Seller in the Certificate Account in the month of substitution
as set forth in Section 2.04 of this Agreement); (ii) at the time of
substitution have a Net Mortgage Rate equal to or exceeding the Net Mortgage
Rate of the Deleted Mortgage Loan; (iii) have a Loan-to-Value Ratio no higher
than the Loan-to-Value Ratio of the Deleted Mortgage Loan; (iv) have a remaining
term to maturity no greater than (and not more than one year less than) the
Deleted Mortgage Loan; (v) be of the same or better credit quality
classification as that of the Deleted Mortgage Loan; and (vi) comply with each
representation and warranty relating to the Mortgage Loans set forth in Section
2.04 hereof.
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, including each standard hazard and,
if applicable, flood insurance policy.
-29-
RESPONSIBLE OFFICER: When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman or
Vice Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the Chairman of the Committee on Trust Matters, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant
Cashier, any Trust Officer or Assistant Trust Officer, the Controller and any
Assistant Controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
S&P: Standard & Poor's Ratings Agency, a division of The XxXxxx-Xxxx
Companies, Inc.
SCHEDULED FINAL DISTRIBUTION DATE: With respect to each Class of
Certificates, other than the Class AR5 Certificates, the Distribution Date
occurring in November 2039. With respect to the Class AR5 Certificates, the
Distribution Date occurring in November 2039.
SELLER: Washington Mutual Bank, FA or its successor in interest.
SENIOR ACCELERATED PREPAYMENT PERCENTAGE: With respect to any
Distribution Date and the Class AR5 Certificates, the percentage indicated
below:
DISTRIBUTION DATE SENIOR ACCELERATED
DISTRIBUTION PERCENTAGE
------------------------------- --------------------------------------------
December 2001 through 100% (except as provided below)
November 2008.................
December 2008 through Senior Percentage, plus 70% of the applicable
November 2009................. Subordinate Percentage
December 2009 through Senior Percentage, plus 60% of the applicable
November 2010................. Subordinate Percentage
December 2010 through Senior Percentage, plus 40% of the applicable
November 2011................. Subordinate Percentage
December 2011 through Senior Percentage, plus 20% of the applicable
November 2012................. Subordinate Percentage
December 2012 and Senior Percentage
thereafter.............................
PROVIDED, HOWEVER, (i) if on or prior to the Distribution Date in
November 2004, the Subordinate Percentage for such Distribution Date is greater
than or equal to twice the Subordinate Percentage as of the Class AR5 Delivery
Date, then the Senior Accelerated Prepayment Percentage for such Distribution
Date will equal the Senior Percentage plus 50% the excess over 100% over the
Senior Percentage for such Distribution Date and (ii) for any Distribution Date
after
-30-
November 2004, the Subordinate Percentage for such Distribution Date is greater
than or equal to twice the Subordinate Percentage as of the Class AR5 Delivery
Date, then the Senior Accelerated Prepayment Percentage for such Distribution
Date will equal the Senior Percentage, PROVIDED, FURTHER, (i) the Senior
Accelerated Prepayment Percentage will equal 100% on any Distribution Date if
(1) the outstanding principal balance of Class AR5 Mortgage Loans delinquent 60
days or more averaged over the last six months, as a percentage of the aggregate
Certificate Principal Balances of the Class B Certificates as of such
Distribution Date, is equal to or greater than 50% or (2) Realized Losses on the
Class AR5 Mortgage Loans from the Class AR5 Cut-off Date to date exceed, if
occurring during the eighth, ninth, tenth, eleventh or twelfth year (or any year
thereafter) after the Class AR5 Delivery Date, 30%, 35%, 40%, 45% or 50%,
respectively, of aggregate Initial Certificate Principal Balances of the Class B
Certificates and (ii) that for any Distribution Date on which the Senior
Percentage is greater than the Senior Percentage as of the Class AR5 Delivery
Date, the Senior Accelerated Prepayment Percentage for the Class AR5 Mortgage
Loans for such Distribution Date shall be 100%. Notwithstanding the foregoing,
upon the reduction of the Certificate Principal Balances of the Class I-A
Certificates to zero, the Senior Accelerated Prepayment Percentage shall
thereafter be 0%.
SENIOR PERCENTAGE: With respect to any date of determination, the
aggregate of the Certificate Principal Balances of the Class I-A and Class I-R
Certificates, divided by the aggregate Principal Balances of the Class AR
Mortgage Loans.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: On each Distribution Date, an
amount equal to the sum of the following:
(a) the Senior Percentage for such Distribution Date times the
sum of the following:
(A) the principal portion of each Monthly Payment
due during the related Due Period on each Outstanding
Mortgage Loan that is a Class AR5 Mortgage Loan, whether or
not received on or prior to the related Determination Date;
and
(B) the Principal Balance of any Mortgage Loan
that is a Class AR5 Mortgage Loan repurchased during the
related Prepayment Period pursuant to Section 2.01, 2.02,
2.03, 2.04 or 3.12 and the amount of any shortfall deposited
in the Custodial Account in connection with the substitution
of a Deleted Mortgage Loan that is a Class AR5 Mortgage Loan
pursuant to Section 2.01, 2.02, 2.03, 2.04 or 3.12 during
the related Prepayment Period; and the principal portion of
all other unscheduled collections (other than Principal
Prepayments in Full and Curtailments and amounts received in
connection with a Cash Liquidation or REO Disposition of a
Mortgage Loan that is a Class AR5 Mortgage Loan described in
clause (b) below, including without limitation Insurance
Proceeds, Liquidation Proceeds and REO Proceeds) received
during the related Prepayment Period to the extent applied
by the Servicer as recoveries of principal of the related
Mortgage Loan that is a Class AR5 Mortgage Loan pursuant to
Section 3.13; and
-31-
(b) with respect to each Mortgage Loan that is a Class AR5
Mortgage Loan for which a Cash Liquidation or a REO Disposition occurred
during the related Prepayment Period, an amount equal to the lesser of (a)
the applicable Senior Percentage for such Distribution Date times the
Principal Balance of such Class AR5 Mortgage Loan and (b) the applicable
Senior Accelerated Prepayment Percentage for such Distribution Date and the
Class AR5 Mortgage Loans times the related unscheduled collections
(including without limitation Insurance Proceeds, Liquidation Proceeds and
REO Proceeds) to the extent applied by the Servicer as recoveries of
principal of the related Mortgage Loan pursuant to Section 3.13; and
(c) the applicable Senior Accelerated Prepayment Percentage for
such Distribution Date times the aggregate of all Principal Prepayments in
Full and Curtailments received in respect of the Class AR5 Mortgage Loans
during the related Prepayment Period; and
(d) any amounts described in clause (a), (b) and (c) above, as
determined for any previous Distribution Date, which remain unpaid after
application of amounts previously distributed pursuant to this clause (d)
to the extent that such amounts are not attributable to Realized Losses
which have been allocated to the Class B Certificates.
SERVICER: Washington Mutual Bank, FA or any successor under the terms
of this Agreement.
SERVICER ADVANCE DATE: The date on which the Servicer is required to
make a Monthly Advance pursuant to Section 5.04 hereof.
SERVICER MORTGAGE FILE: All documents pertaining to a Mortgage Loan
not required to be included in the Trustee Mortgage File and held by the
Servicer or any Sub-Servicer.
SERVICING FEE: For each calendar month, as to each Mortgage Loan, (i)
an amount equal to one month's interest (or in the event of any payment of
interest which accompanies a Principal Prepayment in Full, interest for the
number of days covered by such payment of interest) at a rate equal to the
Servicing Fee Rate and (ii) increased by any late payment charges, assumption
fees and other usual and customary fees collected from the Mortgagor and by any
net income on Eligible Investments held in the Custodial Account.
SERVICING FEE RATE: 0.375% per annum with respect to each
adjustable-rate Mortgage Loan and 0.250% per annum with respect to each
fixed-rate Mortgage Loan.
SERVICING OFFICER: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Trustee on the
Delivery Date by the Servicer pursuant to this Agreement, as such list may from
time to time be amended.
SPECIAL HAZARD COVERAGE: The Special Hazard Coverage on the most
recent anniversary of the Class AR5 Cut-off Date (calculated in accordance with
the second sentence of this definition) or, if prior to the first such
anniversary, $22,624,479, in each case reduced by Special Hazard Losses
allocated to the Class AR5 Certificates since the most recent anniversary of the
Class AR5 Cut-off Date (or, if prior to the first such anniversary, since the
Class AR5 Cut-off Date). On each anniversary of the Class AR5 Cut-off Date, the
Special Hazard Coverage shall be reduced, but not increased, to an amount equal
to the lesser of (1) the greatest of (a) the aggregate principal
-32-
balance of the Mortgage Loans located in the single California zip code area
containing the largest aggregate principal balance of Mortgage Loans, (b) 1.0%
of the aggregate unpaid principal balance of the Mortgage Loans and (c) twice
the unpaid principal balance of the largest single Mortgage Loan, in each case
calculated as of the Due Date in the immediately preceding month, and (2)
$22,624,479 as reduced by the Special Hazard Losses allocated to the Class AR5
Certificates since the Class AR5 Cut-off Date.
The Special Hazard Coverage may be reduced upon written confirmation
from the Rating Agencies that such reduction will not adversely affect the then
current ratings assigned to the Certificates by the Rating Agencies.
SPECIAL HAZARD LOSS: A Realized Loss incurred, to the extent that the
loss was attributable to (i) direct physical damage to a Mortgaged Property
other than any loss of a type covered by a hazard insurance policy or a flood
insurance policy, if applicable, and (ii) any shortfall in insurance proceeds
for partial damage due to the application of the co-insurance clauses contained
in hazard insurance policies. The amount of the Special Hazard Loss is limited
to the lesser of the cost of repair or replacement of the mortgaged property.
Special Hazard Losses do not include losses occasioned by war, civil
insurrection, certain governmental actions, errors in design, faulty workmanship
or materials (except under certain circumstances), nuclear reaction, chemical
contamination or waste by the Mortgagor.
SUB-SERVICER: Any other entity with respect to any Mortgage Loan under
any Sub-Servicing Agreement, either currently or in the future, applicable to
such Mortgage Loan and any successors and assigns under such Sub-Servicing
Agreement.
SUB-SERVICING AGREEMENT: Any servicing agreement between the Servicer
and a Sub-Servicer pursuant to which the Servicer delegates any of its servicing
responsibilities with respect to any of the Mortgage Loans.
SUBCLASS: With respect to the Class Y Certificates, any Subclass
thereof issued pursuant to Section 6.01(b) will represent the uncertificated
Class Y Mortgage Loans REMIC regular interest or interests relating to the Class
Y Mortgage Loans specified by the initial Holder of the Class Y Certificates
pursuant to Section 6.01(b).
SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT: On each Distribution Date,
an amount equal to the sum of:
(a) the product of :
(1) the applicable Class B Percentage for the related Class of
Class B Certificates; and
(2) the amounts calculated pursuant to clauses (a) and (b) of the
definition of "Senior Principal Distribution Amount to the extent not
distributed to the Holders of the Senior Certificates pursuant to section 4.02
(a)(z)(ii),
-33-
(b) the product of :
(1) the related Prepayment Distribution Percentage for the
related Class of Class B Certificates; and
(2) the amount of Principal Prepayments in Full and Curtailments
received in respect of the Class AR5 Mortgage Loans during the related
Prepayment Period and not distributed to the Holders of the Senior Certificates
pursuant to Section 4.02(a)(z)(ii), and
(c) amounts described clauses (a) and (b) above, as determined for any
previous Distribution Date, that remain undistributed to the extent that such
amounts are not attributable to Realized Losses on the related Class of Class B
Certificates.
TRANSFEREE AFFIDAVIT AND AGREEMENT: As defined in Section
6.02(g)(i)(B).
TRUST FUND: Collectively, the assets of the Trust REMIC and all
amounts deposited therein pursuant to the provisions of this Agreement.
TRUST REMIC: The corpus of the Trust Fund 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 Custodial Account and the Certificate
Account and all amounts deposited therein pursuant to the applicable provisions
of this Agreement, (d) any insurance policies with respect to the Mortgage
Loans, (e) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing into cash or other liquid property and (f) its rights under the
Mortgage Loan Purchase Agreement.
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 FLOAT: With respect to each Distribution Date, the value of
balances on deposit in the Certificate Account (which shall not be invested) to
be held by the Trustee for the period beginning one Business Day prior to such
Distribution Date and ending on such Distribution Date.
TRUSTEE MORTGAGE FILE: The mortgage documents listed in Section
2.01(i)-(v) hereof pertaining to a particular Mortgage Loan and any additional
documents required to be added to the Trustee Mortgage File pursuant to this
Agreement.
UNITED STATES REGULATIONS: 31 C.F.R. Part 357; 12 C.F.R. Part 615,
Subpart O; 12 C.F.R. Part 912; 12 C.F.R. Part 1511; 24 C.F.R. Part 81; 31 C.F.R.
Part 354; and 18 C.F.R. Part 1314.
UNITED STATES SECURITIES ENTITLEMENT: A "Security Entitlement" as
defined in a United States Regulation.
-34-
U.S. PERSON: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any state (including the District of Columbia)
thereof, 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 aggregate voting rights of all the
Certificates evidenced by a Certificate. 99% of all Voting Rights will be
allocated to the Certificates (other than the Class R Certificates) in
proportion to their Certificate Principal Balances and 1.00% of all Voting
Rights will be allocated to the Class R Certificates. Notwithstanding the
foregoing, for so long as the Class AR5 Certificates are Outstanding, 99% of the
Voting Rights of the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates
shall be allocated to the Class AR5 Certificates (other than the Class I-R
Certificates) in proportion to their Certificate Principal Balances and 1.00% of
such Voting Rights will be allocated to the Class I-R Certificates.
WASHINGTON MUTUAL: Washington Mutual Bank, FA.
ARTICLE II
CONVEYANCE OF TRUST FUND;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 CONVEYANCE OF TRUST FUND.
As of Delivery Date, 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 the Trust REMIC, and as of the Class AR5 Delivery Date, 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 the REMIC I and REMIC II.
As of the Delivery Date, the Seller hereby sells, transfers, assigns,
delivers, sets over and otherwise conveys to the Trustee, without recourse, any
and all right, title and interest of the Seller, if any, in and to the Trust
REMIC and as of the Class AR5 Delivery Date, the Seller hereby sells, transfers,
assigns, delivers, sets over and otherwise conveys to the Trustee, without
recourse, any and all right, title and interest of the Seller, if any, in and to
the REMIC I and REMIC II and in the Class A-1, A-2, A-3 and A-4 Certificates.
In connection with any such transfer and assignment, the Seller does
hereby deliver to, and deposit with, the Trustee or its agents, the following
documents or instruments with respect to each Mortgage Loan so assigned:
(i) the Mortgage Note, endorsed, in blank (which such endorsement
may be pursuant to the use of an allonge in the form attached as Exhibit J),
with all intervening endorsements showing a complete chain of endorsement from
the originator to the last endorser (or an original lost note affidavit from the
Seller stating that the Mortgage Note was lost, misplaced or destroyed, with
respect to such Mortgage Loans identified in the Trustee's Certification
referenced in Section 2.02), and if the Mortgage Note or Mortgage or any other
material document or
-35-
instrument relating to the Mortgage Loan has been signed on behalf of the
Mortgagor by another person, the original power of attorney or other instrument
that authorized and empowered such person to sign, or a copy of the original
power of attorney or other instrument;
(ii) the original Mortgage, as recorded, with evidence of
recording indicated thereon establishing the Seller as mortgagee thereof;
(iii) an original assignment or assignments of Mortgage (other
than an Assignment) showing an unbroken chain of title from the originator to
the Seller with evidence of recording indicated thereon or a duplicate original
of the copy thereof certified by the applicable recording office;
(iv) the original copy of each assumption, modification, written
assurance or substitution agreement, if any, with respect to such Mortgage Loan,
as identified on the Mortgage Loan Schedule; and
(v) an Assignment.
Notwithstanding the foregoing, in the event that in connection with
any Mortgage Loan the Seller cannot deliver an original recorded counterpart of
any of the documents required to be delivered pursuant to clauses (ii) or (iii)
above with evidence of recording thereon concurrently with the execution and
delivery hereof, the Seller shall deliver to the Trustee a duplicate original or
true copy of such document certified by the Seller or the applicable public
recording office to be a true and complete duplicate original or copy of the
original thereof submitted for recording, or a copy of the Mortgage certified by
a title insurance or escrow company or companies, evidencing that such Mortgage
or assignment of Mortgage has been delivered to the appropriate public recording
office for recordation. In the event that the Seller cannot deliver a duplicate
original or true copy certified as stated above of such document required to be
delivered pursuant to clauses (ii) or (iii) above, within 45 days of the
Delivery Date, the Seller shall purchase the related Mortgage Loan at the
Purchase Price therefor or, replace the Mortgage Loan with a Replacement
Mortgage Loan if such substitution occurs within the time periods for
substitution set forth in Section 2.04.
The Seller shall promptly deliver to the Trustee (A) the original
recorded documents referred to in clauses (ii) and (iii) above with evidence of
recording indicated thereon or a photocopy thereof certified by the appropriate
county recorder's office to be a true and complete copy of the original thereof,
upon receipt thereof from the public recording office, and (B) upon discovery of
any defect or omission in the deliveries of any of items (ii) through (iv) above
with respect to any Mortgage Loan, a correct and complete document or instrument
meeting the requirements of such item, but in no event shall any such delivery
be made later than 90 days following the Delivery Date (unless, in the case of
the foregoing clause (A), such document has not been returned from the relevant
recording office at such time, in which case the Servicer shall make such
delivery within 270 days of the Delivery Date; PROVIDED, HOWEVER, that such 270
day period shall be extended to 360 days upon presentation of an officer's
certificate of the Seller to the effect that such document has not yet been
returned from the relevant recording office, and shall be extended for
additional thirty-day periods). In the event the Seller cannot deliver such
original document within the time period set forth in the preceding sentence,
the Seller shall purchase the related Mortgage Loan at the Purchase Price
therefor or, replace the Mortgage Loan with a Replacement Mortgage Loan if such
substitution occurs within the time periods for substitution set forth in
Section 2.04.
-36-
From time to time the Seller or the Servicer may forward or cause to
be forwarded to the Trustee for the benefit of the Certificateholders additional
original documents evidencing an assumption or modification of a Mortgage Loan.
The Seller will promptly notify, in writing, the Depositor, the
Servicer and the Trustee of the occurrence of a Downgrade Event.
Within 60 days following the receipt of the notice of a Downgrade
Event, the Trustee shall (a) complete each endorsement referred to in clause (i)
above and each Assignment referred to in (v) above by inserting "to the Trustee
for the benefit of the Holders of the Washington Mutual Bank, FA Mortgage-Backed
Pass-Through Certificates, Series 1999-WM4" and (b) cause the Servicer to record
(and the Servicer hereby agrees to record), at the expense of the Servicer, in
the appropriate public office for real property records each original assignment
referred to in (v) above with respect to each Mortgaged Property, and the
Trustee shall release any such Assignment to the Servicer for such purpose. The
Servicer shall promptly deliver to the Trustee each original Assignment with
evidence of recording indicated thereon or a photocopy thereof certified by the
appropriate county recorder's office to be a true and complete copy of the
original thereof, upon receipt thereof from the public recording official. If
any Assignment is returned unrecorded to the Servicer because of any defect
therein, the Seller or the Servicer shall cure or correct such defect and cause
such Assignment to be recorded in accordance with this paragraph and if such
defect is not cured within 60 days the Seller shall purchase the Mortgage Loan
at the Purchase Price therefor or, replace the Mortgage Loan with a Replacement
Mortgage Loan if such substitution occurs within the time periods for
substitution set forth in Section 2.04.
SECTION 2.02 ACCEPTANCE BY TRUSTEE.
The Trustee will hold the documents referred to in Section 2.01(i)-(v)
above and the other documents constituting a part of the Trustee Mortgage Files
delivered to it pursuant to Section 2.01 in trust for the use and benefit of all
present and future Certificateholders. Upon execution and delivery of this
Agreement and within 45 days after the execution and delivery of this Agreement,
the Trustee shall ascertain whether all documents required to be delivered to it
pursuant to Section 2.01 hereof are in its possession, and shall deliver to the
Depositor, the Seller and the Servicer a certification (upon execution and
delivery of this Agreement, the "Initial Certification" and within 45 days
thereof, the "Final Certification," respectively) in the forms set forth as
EXHIBITS D-1 and D-2 hereto to the effect that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule: (a) all documents required to be delivered to the
Trustee pursuant to this Agreement are in its possession, (b) 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 (c) each Mortgage Note has been endorsed and each assignment of Mortgage has
been delivered as provided in Section 2.01 hereof. The Trustee shall deliver to
the Depositor, the Seller and the Servicer a copy of such Final Certification.
If, in the course of such review, the Trustee finds any document or documents
constituting a part of a Mortgage File which do not meet the requirements of the
foregoing clauses (a)-(c), the Trustee shall promptly notify the Seller, the
Servicer and the Depositor in writing, and request that the Seller correct or
cure such defect. The Trustee shall promptly notify the Depositor, the Seller
and the Servicer in writing if any original assignment referred to in clause
(iii) of Section 2.01 or duplicate original or the copy thereof certified by the
Seller or the applicable recording office has not been received by it prior to
March 31, 2000. In the event the Seller shall fail to cure any document
deficiency or defect reflected in the Final
-37-
Certification or as otherwise required under Section 2.01 within 60 days of such
Final Certification, it shall not be the obligation of the Trustee hereunder to
cure the same, and the Seller shall purchase the Mortgage Loan at the Purchase
Price therefor or, if within ninety days or two years of the Delivery Date, as
applicable, substitute the Mortgage Loan with a Replacement Mortgage Loan in
accordance with the provisions of Sections 2.04.
The Depositor agrees that at any time and from time to time upon
written request of the Trustee, the Depositor shall promptly and duly execute
and deliver any and all such further documents and assurances, and take such
further actions as the Trustee reasonably may request in order to obtain or more
fully vest the benefits of the assignment intended hereunder (as set forth
hereinabove in Section 2.01 and hereinbelow in Section 2.03) and of the rights
and powers herein granted.
The Trustee shall retain possession and custody of the Trustee
Mortgage File in accordance with and subject to the terms and conditions set
forth herein.
SECTION 2.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER AND
SELLER.
Washington Mutual, as Seller and Servicer, hereby represents and
warrants to, and covenants with, the Depositor and the Trustee that, as of the
Delivery Date and as of the Class AR5 Delivery Date:
(i) Washington Mutual is a federally chartered savings
association, validly existing and in good standing under the laws of the United
States of America and is duly authorized and qualified to transact any and all
business contemplated by this Agreement in any state in which a Mortgaged
Property is located or is otherwise not required under applicable law to effect
such qualification and, in any event, is in compliance with the doing business
laws of any such state, to the extent necessary to ensure the enforceability of
each Mortgage Loan and the servicing of the Mortgage Loans in accordance with
the terms of this Agreement;
(ii) Washington Mutual has the full corporate power and authority
to service each Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary corporate action on the part of Washington Mutual
the execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the Depositor
and the Trustee, constitutes a legal, valid and binding obligation of Washington
Mutual, enforceable against Washington Mutual in accordance with its terms,
except that (A) the enforceability thereof may be limited to bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought;
(iii) the execution and delivery of this Agreement by Washington
Mutual, the servicing of the Mortgage Loans by Washington Mutual hereunder, the
consummation of any other of the transactions herein contemplated, and the
fulfillment of or compliance with the terms hereof are in the ordinary course of
business of Washington Mutual and will not (A) result in a material breach of
any term or provision of the charter or by-laws of Washington Mutual or
-38-
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any other
material agreement or instrument to which Washington Mutual is a party or by
which it may be bound, or any statute, order or regulation applicable to
Washington Mutual of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Washington Mutual; and Washington
Mutual is not a party to, bound by, or in breach or violation of any material
indenture or other material agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects, (1) the ability of Washington Mutual to
perform its obligations under this Agreement or (2) the business, operations,
financial condition, properties or assets of the Servicer taken as a whole;
(iv) Washington Mutual is, and will remain, subject to
supervision and examination by any state or federal authority as may be
applicable and will remain in good standing and qualified to do business where
so required by applicable law and is, and will remain an approved servicer of
conventional mortgage loans for Xxxxxx Xxx or Freddie Mac;
(v) no litigation is pending or threatened against Washington
Mutual that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of Washington Mutual to service
the Mortgage Loans or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(vi) Washington Mutual will at all times comply in the
performance of its obligations under this Agreement with all reasonable rules
and requirements of the insurer under each Required Insurance Policy;
(vii) no written information, certificate of an officer,
statement furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by Washington Mutual
pursuant to this Agreement will contain any untrue statement of a material fact
or omit to state a material fact necessary to make the information, certificate,
statement or report not misleading;
(viii) except for permits and similar authorizations required
under the securities or "blue sky" laws no consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Washington Mutual of, or compliance by Washington
Mutual with, this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is required,
Washington Mutual has obtained the same;
(ix) Washington Mutual will service the Mortgage Loans in
accordance with the standards set forth in this Agreement; and
(x) this Agreement and all other documents related hereto to
which Washington Mutual is a party have been approved by the Washington Mutual's
board of directors, which approval is reflected in the minutes of such board,
and shall continuously from the time of each such document's execution, be
maintained as an official record of the Washington Mutual.
-39-
SECTION 2.04 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER WITH
RESPECT TO THE MORTGAGE LOANS.
The Seller hereby represents and warrants to, and covenants with, the
Depositor and the Trustee for the benefit of the Certificateholders that, as to
each Mortgage Loan, as of the Cut-off Date and, with respect to the Class AR5
Mortgage Loans, the Class AR5 Delivery Date or such other date specifically set
forth herein,
(i) The information set forth in the Mortgage Loan Schedule is
complete, true and correct as of the Cut-off Date and the information set forth
on the Schedule X with respect to the Class AR5 Mortgage Loans is true and
correct as of the Class AR5 Cut-off Date.
(ii) As of the Cut-off Date, none of the Mortgage Loans were more
than 30 days delinquent and not more than 0.71% of the Mortgage Loans were 30
days delinquent more than once in the twelve months prior to the Cut-off Date;
and as of the Class AR5 Cut-off Date, none of the Mortgage Loans listed on
Schedule X were more than 30 days delinquent and not more than 6.43% of the
Mortgage Loans listed on Schedule X were 30 days or more delinquent one or more
times in the twelve months prior to the Class AR5 Cut-off Date; Washington
Mutual has not advanced funds to, or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any amount
required by the Mortgage Loan.
(iii) There are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property.
(iv) 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, if necessary to protect the interests of
the Trustee, and which are included in the Trustee Mortgage File, the substance
of which waiver, alteration or modification has been approved by the primary
mortgage guaranty insurer, if any, and by the title insurer, to the extent
required by the related policy and is reflected on the Mortgage Loan Schedule.
No instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, except in connection with an
assumption agreement approved by the primary mortgage insurer, if any, and title
insurer, to the extent required by the policy, and which assumption agreement is
part of the Mortgage File.
(v) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note and
Mortgage, or the exercise of any right thereunder, render the 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.
(vi) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the Mortgaged Property
is located. All such insurance policies contain a standard mortgagee clause
naming the Servicer, its successors and assigns as mortgagee and all
-40-
premiums thereon have been paid. If upon origination of the Mortgage Loan, the
Mortgaged Property was 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) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect which policy conforms to the requirements of Xxxxxx Xxx or Freddie
Mac. The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at Xxxxxxxxx's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to maintain such insurance at
Xxxxxxxxx's cost and expense and to seek reimbursement therefor from the
Mortgagor.
(vii) Any and all requirements of any federal, state or local law
including, without limitation, environmental, usury, truth in lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan and the related
Mortgaged Property have been complied with.
(viii) The Mortgage has not been satisfied, canceled or
subordinated, or rescinded, in whole or in part, 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.
(ix) The Mortgage is a valid, existing and enforceable first lien
on the Mortgaged Property, including all improvements on the Mortgaged Property
subject only to (A) the lien of current real property taxes and 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
being acceptable to mortgage lending institutions generally and specifically
referred to in lender's title insurance policy delivered to the originator of
the Mortgage Loan and which do not adversely affect the Appraised Value of the
Mortgaged Property, and (C) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. Any security agreement, chattel
mortgage or equivalent document related to and delivered in connection with the
Mortgage establishes and creates a valid, existing and enforceable first lien
and first priority security interest on the property described therein and the
Seller has full right to sell and assign the same to the Depositor. The
Mortgaged Property was not, as of the date of origination of the Mortgage Loan,
subject to a mortgage, deed of trust, deed to secure debt or other security
instrument creating a lien subordinate to the lien of the Mortgage.
(x) The Mortgage Note and the related Mortgage are genuine and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, or reorganization.
(xi) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties.
(xii) The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the
-41-
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor is
not entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage.
(xiii) As of the Delivery Date, the Mortgage Note and the
Mortgage are not assigned or pledged, and immediately prior to the sale of the
Mortgage Loan to the Depositor the Seller was the sole owner of record and
holder thereof and with full right to transfer and sell the Mortgage Loan to the
Depositor free and clear of any encumbrance, equity, lien, pledge, charge, claim
or security interest and with full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement.
(xiv) All parties which have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period
in which they held and disposed of such interest, were) (A) in compliance with
any and all applicable licensing requirements of the laws of the state wherein
the Mortgaged Property is located, and (B) either (i) organized under the laws
of such state, or (ii) qualified to do business in such state, or (iii) federal
savings and loan associations or national banks having principal offices in such
state, or (iv) not doing business in such state.
(xv) The Mortgage Loan is covered by an ALTA lender's title
insurance policy acceptable to Xxxxxx Xxx or Freddie Mac, issued by a title
insurer acceptable to Xxxxxx Xxx or Freddie Mac and qualified to do business in
the jurisdiction where the Mortgaged Property is located, insuring (subject to
the exceptions contained in (ix)(A) through (C) above) the Seller, its
successors and assigns as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan. The original title policy (or a
copy thereof sufficient to entitle the insured to make a claim thereunder) and
all riders thereto are in the Mortgage File. Additionally, such lender's title
insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein. The
Seller 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. No claims have been made under such lender's title insurance policy,
and no prior holder of the related Mortgage, including the Seller, has done, by
act or omission, anything which would impair the coverage of such lender's title
insurance policy.
(xvi) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the 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 of
acceleration, and the Seller has not waived any default, breach, violation or
event of acceleration.
(xvii) 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 lien) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or on parity with, the lien of the
related Mortgage.
(xviii) All improvements which were considered in determining the
Appraised Value of the related Mortgaged Property lay wholly within the
boundaries and building
-42-
restriction lines of the Mortgaged Property, and no improvements on adjoining
properties encroach upon the Mortgaged Property.
(xix) The Mortgage Loan was originated by the Seller or a
subsidiary of the Seller or was purchased by the Seller from a third party, each
of which was, at the time of origination, (A) a Xxxxxx Xxx-approved or Freddie
Mac-approved seller/servicer and (B) a HUD-approved mortgage banker, or a
savings and loan association, a savings bank, a commercial bank or similar
banking institution which is supervised and examined by a federal or state
authority. Principal payments on the Mortgage Loan commenced no more than sixty
days after funds were disbursed in connection with the Mortgage Loan. The
Mortgage Note is payable on the first day of each month in monthly installments
of principal and interest, with interest in arrears, and requires Monthly
Payments sufficient to amortize the original principal balance of the Mortgage
Loan over a term of not more than 40 years. Each Mortgage Note has a Mortgage
Rate, other than a Mortgage Note with a fixed Mortgage Rate, that after an
initial one-year, three-year or five-year period is calculated based upon the
Index plus the Margin. Each Mortgage Note that is not calculated based upon the
Index plus the Margin, provides for a fixed Mortgage Rate. No Mortgage Loan has
a provision which will require negative amortization. No Mortgage Loan requires
a balloon payment at the end of its term.
(xx) The origination practices used by the Seller and the
collection practices used by the Servicer with respect to each Mortgage Note and
Mortgage have been in all respects legal, proper, prudent and customary in the
mortgage origination and servicing business. With respect to escrow deposits and
escrow payments, if any, all such payments are in the possession of, or under
the control of, the Servicer and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or escrow payments or other charges or payments due the
Seller have been capitalized under any Mortgage or the related Mortgage Note.
(xxi) The Mortgaged Property is free of damage and waste and
there is no proceeding pending for the total or partial condemnation thereof.
(xxii) The Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (A) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (B) otherwise by judicial foreclosure. There is
no 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. The Mortgagor has not notified the Servicer and the
Servicer has no knowledge of any relief requested or allowed to the Mortgagor
under the Relief Act.
(xxiii) The Mortgage Loan was underwritten generally in
accordance with the Seller's underwriting standards in effect at the time the
Mortgage Loan was originated.
(xxiv) The Mortgage Note is not secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in (ix) above.
-43-
(xxv) The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the approval of the Mortgage Loan application
by a qualified appraiser, duly appointed by the originator of the Mortgage Loan,
who had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan.
(xxvi) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Depositor to the trustee under the
deed of trust, except, in connection with a trustee's sale after default by the
Mortgagor.
(xxvii) No Mortgage Loan contains provisions pursuant to which
Monthly Payments are (A) paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor, or anyone on behalf
of the Mortgagor, (B) paid by any source other than the Mortgagor or (C)
contains any other similar provisions which may constitute a "buydown"
provision. No Mortgage Loan was a graduated payment mortgage loan as of the date
of its origination. No Mortgage Loan has a shared appreciation or other
contingent interest feature.
(xxviii) The Seller has no knowledge of any circumstances or
condition existing on the Cut-off Date with respect to the Mortgage, the
Mortgaged Property, the Mortgagor or the Mortgagor's credit standing that can
reasonably be expected to cause the Mortgage Loan to be an unacceptable
investment, cause the Mortgage Loan to become delinquent, or adversely affect
the value of the Mortgage Loan.
(xxix) Each such Mortgage Loan with a Loan-to-Value Ratio at
origination in excess of 80% is and will be subject either to (x) a Primary
Mortgage Insurance Policy, issued by a Xxxxxx Xxx or Freddie Mac approved
insurer, which provided private mortgage insurance in an amount meeting Xxxxxx
Xxx and Freddie Mac requirements or (y) a higher interest rate in lieu of
obtaining private mortgage insurance. All provisions of such Primary Mortgage
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 Mortgage
subject to any such Primary Mortgage Insurance Policy obligates the Mortgagor
thereunder to maintain such insurance and to pay all premiums and charges in
connection therewith.
(xxx) The Mortgaged Property is lawfully occupied under
applicable law. All inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the related Mortgaged
Property and, with respect to the use and occupancy of the same, including but
not limited to certificates of occupancy, had been made or obtained from the
appropriate authorities.
(xxxi) No action has been taken or failed to be taken, no event
has occurred and no state of facts exists or has existed on or prior to the
Cut-off Date (whether or not known to the Seller on or prior to such date) which
has resulted or will result in an exclusion from, denial of, or defense coverage
under any private mortgage insurance (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability of
the timely payment of the full amount of the loss otherwise due thereunder to
the insured) whether arising out of actions, representations, errors, omissions,
negligence, or fraud of the Seller, the related Mortgagor or any
-44-
party involved in the application for such coverage, including the appraisal,
plans and specifications and other exhibits or documents submitted therewith to
the insurer under such insurance policy, or for any other reason under such
coverage, but not including the failure of such insurer to pay by reason of such
insurer's breach of such insurance policy or such insurer's financial inability
to pay.
(xxxii) The Assignment is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged Property
is located.
(xxxiii) Any 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 lien of the Mortgage securing the
consolidated principal amount is expressly insured as having first lien priority
by a title insurance policy, an endorsement to the policy insuring the
mortgagee's consolidated interest or by other title evidence acceptable to
Xxxxxx Xxx or Freddie Mac. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan.
(xxxiv) If the Mortgaged Property is a condominium unit or a
planned unit development (other than a de minimis planned unit development) such
condominium or planned unit development project meets Xxxxxx Xxx or Xxxxxxx Mac
eligibility requirements.
(xxxv) Each Mortgage is a "qualified mortgage" for purposes of
the REMIC Provisions.
(xxxvi) No fraud was committed by the originator of the Mortgage
Loan and the Seller is not aware of any fact that would reasonably lead the
Seller to believe that any Xxxxxxxxx had committed fraud in connection with the
origination of such Mortgage Loan.
(xxxvii) The Index on all of the all of the Class AR5 Mortgage
Loans is either the One-Year MTA Index or the One-Year CMT Index.
Upon the discovery by the Depositor, the Seller, the Servicer or the
Trustee (or upon notice thereof in writing from a Certificateholder) of a breach
or breaches of any of the representations and warranties of the Seller made in
this Section 2.04 in respect of any Mortgage Loan, or any breach of a
representation or warranty of the Seller or Servicer set forth in Section 2.03
or any breach of representation or warranty of the Seller in Section 2 of the
Mortgage Loan Purchase Agreement, which breach or breaches, individually or in
the aggregate, materially and adversely affect the interests of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties. The Trustee shall promptly notify the Seller and
Servicer of such breach and request that the Seller or Servicer, as the case may
be, cure such breach within 60 days (or if such breach is not capable of being
cured within 60 days and provided the Seller or the Servicer, as the case may be
is diligently pursuing the cure thereof, within 120 days) from the date of such
notice, and if the Seller or Servicer does not cure such breach in all material
respects, the Seller or Servicer, as the case may be, shall either (i)
substitute a Replacement Mortgage Loan or Loans for the related Mortgage Loan,
which substitution must be made as specified in this Section or (ii) purchase
such Mortgage Loan held for the benefit of the Certificateholders from the
Trustee at the Purchase Price therefor.
-45-
The Seller or Servicer shall not have any right to substitute a
Replacement Mortgage Loan or Loans for the affected Mortgage Loan more than
three months after the Delivery Date (or more than two years after the Delivery
Date if the related Mortgage Loan is a "defective obligation" within the meaning
of Section 860G(a)(4)(B)(ii) of the Code), and any substitution must be
accompanied by an Officers' Certificate delivered to the Trustee, certifying
that such Replacement Mortgage Loan conforms to the requirements of this
Agreement, and by an Opinion of Counsel to the effect that such substitution
will not cause the Trust REMIC, REMIC I or REMIC II to fail to qualify as a
REMIC and will not result in a prohibited transaction tax, which Opinion of
Counsel shall be paid for by the Seller or Servicer, as the case may be.
Notwithstanding the foregoing, if any such breach would cause a Mortgage Loan to
be other than a "qualified mortgage loan" as described in Section 860G(a)(3) of
the Code, any substitution or purchase shall occur within 90 days of the
discovery of the breach.
As to any Replacement Mortgage Loan or Loans, the Seller or Servicer
shall deliver to the Trustee or its agent for such Replacement Mortgage Loan or
Loans, the Mortgage Note, the Mortgage, and such other documents and agreements
as are required by Section 2.01, with the Mortgage Note (i) endorsed in blank if
no Downgrade Event has occurred or (ii) if a Downgrade Event has occurred,
endorsed to the Trustee for the benefit of the Holders of the Washington Mutual
Bank, FA Mortgage-Backed Certificates, Series 1999-WM4 (which endorsement, in
either case, may be in the form of an allonge). As to any Replacement Mortgage
Loan or Loans, the Seller or Servicer shall deliver to the Trustee the related
Assignment (i) in blank in recordable form or (ii) if a Downgrade Event has
occurred, assigned to the Trustee for the benefit of the Holders of the
Washington Mutual Bank, FA Mortgage-Backed Certificates, Series 1999-WM4. No
substitution will be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to Replacement Mortgage Loans in
the month of substitution shall not be part of the Trust Fund and will be
remitted by the Servicer to the Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Monthly Payment due on such Deleted Mortgage Loan for such month and
thereafter the Seller or Servicer, as the case may be, shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan.
Upon such substitution, the Servicer shall amend or cause to be
amended the Mortgage Loan Schedule to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and
shall deliver such amended Mortgage Loan Schedule to the Depositor, the Seller
and the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans
shall be subject to the terms of this Agreement in all respects and the Seller
shall be deemed to have made, as of the date of substitution, with respect to
the Replacement Mortgage Loan or Loans, the representations and warranties
pertaining to the Mortgage Loans contained in Section 2.04 hereof. Upon receipt
of the Trustee Mortgage File pertaining to any Replacement Mortgage Loans, the
Trustee shall release, or cause to be released, the Trustee Mortgage File held
for the benefit of the Certificateholders relating to such Deleted Mortgage Loan
to the Seller or Servicer as applicable and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest title (to the extent that such title was transferred to the
Trustee) in the Seller or Servicer as applicable, or its designee, to any
Deleted Mortgage Loan substituted for pursuant to this Section 2.04.
In any month in which the Seller or Servicer substitutes one or more
Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer
will determine the amount
-46-
(if any) by which the aggregate Principal Balance of all such Replacement
Mortgage Loans as of the date of substitution is less than the aggregate
Principal Balance of all such Deleted Mortgage Loans (in each case after
application of scheduled principal portion of the monthly payments received in
the month of substitution). The amount of such shortage shall be deposited into
the Custodial Account by the Seller or Servicer in the month of substitution
pursuant to Section 3.07, without any reimbursement thereof. The Servicer shall
give notice in writing to the Trustee of such event, which notice shall be
accompanied by a Certificate of a Servicing Officer as to the calculation of
such shortage.
In the event that the Seller or Servicer shall have repurchased a
Mortgage Loan, upon receipt by the Trustee of written notification of the
deposit of the Purchase Price, the Trustee shall release, or cause to be
released, the related Trustee Mortgage File held for the benefit of the
Certificateholders to the Seller or Servicer as applicable and the Trustee shall
execute and deliver the related instruments of transfer or assignment, in each
case without recourse, as shall be necessary to transfer title (to the extent
that such title was transferred to the Trustee) from the Trustee for the benefit
of the Certificateholders and vest title in the Seller or Servicer, or the
designee thereof, as the case may be, to any Mortgage Loan purchased pursuant to
this Section 2.04. It is understood and agreed that the obligation under this
Agreement of any Person to repurchase or substitute any Mortgage Loan as to
which such breach has occurred and is continuing shall constitute the sole and
exclusive remedy respecting such breach available to Certificateholders or the
Trustee on their behalf.
SECTION 2.05 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 (i) with such
assignment and delivery, the Trustee, pursuant to the written request of the
Depositor executed by an officer of the Depositor, has executed the Class A
Certificates and Class R Certificates and (ii) concurrently, with the delivery
of the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, as of the
Class AR5 Delivery Date, the Trustee, pursuant to the written request of the
Depositor executed by an officer of the Depositor, has executed the Class I-A
Certificates, the Class B Certificates and Class I-R 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
REMIC, REMIC I or REMIC II, as applicable, shall be as set forth in this
Agreement.
SECTION 2.06 REMIC PROVISIONS.
(a) The Depositor hereby elects and authorizes the Trustee to treat
the Trust REMIC, REMIC I and XXXXX XX as a real estate mortgage investment
conduit under the Code and, if necessary, under applicable state law. The
Trustee shall make such election 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) by an attachment making such election and
stating that such election is being made as a protective matter, for the taxable
year ending on the last day of the calendar year in which all or a portion of
the Certificates are first sold by Washington Mutual to any party other than an
affiliate. The Delivery Date is hereby designated as the "startup day" (a
"Startup Day") of the Trust REMIC
-47-
and the Class AR5 Delivery Date is hereby designated as the "startup day (a
"Startup Day") for REMIC I and REMIC II, in each case, within the meaning of
Section 860G(a)(9) of the Code for purposes of the election made under clause
(x) of the preceding sentence and the date of the first sale of Certificates by
Washington Mutual to any party other than an affiliate is hereby designated as
the "startup day" for purposes of the protective election to be made pursuant to
clause (y) of the preceding sentence. The "regular interests" (within the
meaning of Section 860G of the Code) in the Trust REMIC shall consist of the
Class A Certificates and the "residual interest" in the Trust REMIC shall
consist of the Class R Certificates. The Depositor and the Trustee shall not
permit the creation of any "interests" (within the meaning of Section 860G of
the Code) in the Trust REMIC other than the Class A and Class R Certificates.
The "regular interests" (within the meaning of Section 860G of the Code) in
REMIC I shall consist of the Class AR5 Regular Interests and the Class Y Regular
Interests and the "residual interest" in REMIC I shall consist of the Class R-I
Component. The Depositor and the Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in REMIC I other
than the regular interests therein and Class R-I Component. The "regular
interests" (within the meaning of Section 860G of the Code) in REMIC II shall
consist of the Class I-A and the Class B Certificates and the "residual
interest" in REMIC II shall consist of the Class R-II Component. The Depositor
and the Trustee shall not permit the creation of any "interests" (within the
meaning of Section 860G of the Code) in REMIC II other than the Class I-A and
Class B Certificates and the Class R-II Component.
(b) The Seller, (i) on behalf of the Holders of the Class R
Certificates, shall act as agent for the Class R Certificateholder and (ii) on
behalf of the Holders of the Class I-R Certificates, shall act as agent for the
Class I-R Certificateholder and shall act as the "tax matters person" (within
the meaning of the REMIC Provisions) for the Trust REMIC, REMIC I and REMIC II,
as applicable, 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 R Certificate and I-R Certificate, each Holder thereof
shall have agreed to such appointment and shall have consented to the
appointment of the Trustee as its agent to act on behalf of the Trust REMIC,
REMIC I and REMIC II, as applicable, pursuant to the specific duties outlined
herein.
(c) A Holder of any of the Class R Certificates or Class I-R
Certificates by the purchase of such Certificates, shall be deemed to have
agreed to timely pay, upon demand by the Trustee, the amount of any minimum
California state franchise taxes due with respect to the Trust REMIC, REMIC I or
REMIC II, as applicable, under Sections 23151(a) and 23153(a) of the California
Revenue and Taxation Code. Notwithstanding the foregoing, the Trustee shall be
authorized to retain the amount of such tax from amounts otherwise distributable
to such Holder in the event such Holder does not promptly pay such amount upon
demand by the Trustee. In the event that any other federal, state or local tax
is imposed, including without limitation taxes imposed on a "prohibited
transaction" of a REMIC as defined in Section 860F of the Code, such tax shall
be charged against amounts otherwise available for distribution to the
applicable Holder of a Class R or I-R Certificate and then against amounts
otherwise available for distribution to the Holders of Regular Certificates in
accordance with the provisions set forth in Sections 4.02 and 4.03,
respectively. The Trustee shall promptly deposit in the Certificate Account any
amount of "prohibited transaction" tax that results from a breach of the
Trustee's duties under this Agreement. The Servicer shall promptly deposit in
the Certificate Account any amount of "prohibited transaction" tax that results
from a breach of the Servicer's duties under this Agreement.
-48-
(d) The Trustee shall act as attorney-in-fact and as agent on behalf
of the tax matters person of the Trust REMIC, REMIC I and REMIC II and in such
capacity the Trustee shall: (i) prepare, sign and file, or cause to be prepared,
signed and filed, federal and state tax returns using a calendar year as the
taxable year for the Trust REMIC, REMIC I and REMIC II when and as required by
the REMIC Provisions and other applicable federal income tax laws as the direct
representative of the Trust REMIC, REMIC I and REMIC II in compliance with the
Code and shall provide copies of such returns as required by the Code; (ii) make
an election, on behalf of the Trust REMIC, REMIC I and REMIC II, to be treated
as a REMIC on the federal tax return of the Trust REMIC, REMIC I and REMIC II
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 and the Code. The expenses of preparing and filing such returns shall
be borne by the Trustee. The Depositor and Servicer shall provide on a prompt
and timely basis to the Trustee or its designee such information with respect to
the Trust REMIC as is in their possession and reasonably required or requested
by the Trustee to enable it to perform its obligations under this subsection.
In its capacity as attorney-in-fact and as agent on behalf of the tax
matters person, the Trustee shall also: (A) act on behalf of the Trust REMIC,
REMIC I and REMIC II in relation to any tax matter or controversy involving the
Trust Fund, (B) represent the Trust Funds 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 the Trust REMIC, REMIC I and
REMIC II when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The expense of any such representation shall be borne by the
Holders of the Class R Certificates and Class I-R Certificates unless such
expense is caused by a breach of the Trustee's duties or the Servicer's duties
hereunder, in which case such expenses shall be borne by the Trustee or the
Servicer, as the case may be.
(e) The Trustee shall provide (i) to any transferor of a Class R
Certificate and Class I-R Certificate such information as is necessary for the
application of any tax relating to the transfer of a Class R Certificate to any
Person who is not a permitted transferee, (ii) to the 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 the Trust REMIC, REMIC I and REMIC II.
(f) The Trustee, the Depositor, the Holder of the Class R Certificates
and the Holder of the Class I-R Certificates shall take any action or cause the
Trust Fund to take any action necessary to create or maintain the status of the
Trust REMIC, REMIC I or REMIC II as a REMIC under the REMIC Provisions and shall
assist each other as necessary to create or maintain such status. Neither the
Trustee nor the Holder of the Class R Certificates or the Holder of the Class
I-R 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 the Trust REMIC as a REMIC or (ii) result in the
imposition of a tax upon the Trust REMIC, REMIC I or REMIC II (including, but
not limited to,
-49-
the tax on prohibited transactions as defined in Code Section 860F(a)(2) and the
tax on prohibited contributions set forth in Section 860G(d) of the Code)
(either such event, an "Adverse REMIC Event") unless the Trustee has received an
Opinion of Counsel (at the expense of the party seeking to take such action) to
the effect that the contemplated action will not endanger such status or result
in the imposition of such a tax.
The Trustee shall not take or fail to take any action (whether or not
authorized hereunder) as to which the Servicer or Depositor has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to the Trust REMIC, REMIC I or REMIC II or its
respective assets, or causing the Trust REMIC, REMIC I or REMIC II to take any
action, which is not expressly permitted under the terms of this Agreement, the
Trustee will consult with the Servicer and Depositor or their designees, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to the Trust REMIC, REMIC I or REMIC II, and the Trustee
shall not take any such action or cause the Trust REMIC, REMIC I or REMIC II to
take any such action as to which the Servicer or Depositor has advised it in
writing that an Adverse REMIC Event could occur.
In addition, prior to taking any action with respect to the Trust
REMIC or the assets therein, or causing the Trust REMIC, REMIC I or REMIC II to
take any action, which is not expressly permitted under the terms of this
Agreement, the Holders of the Class R Certificates and the Holders of the Class
I-R Certificates will consult with the Trustee or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur with
respect to the Trust REMIC, REMIC I or REMIC II, and no such Person shall take
any action or cause the Trust Fund to take any such action as to which the
Trustee has advised it in writing that an Adverse REMIC Event could occur. The
Trustee may consult with counsel to make such written advice, and the cost of
same shall be borne by the party seeking to take action not permitted by this
Agreement.
At all times as may be required by the Code, the Servicer will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of the Trust REMIC, REMIC
I or REMIC II 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 the Trust REMIC, REMIC I or REMIC II, as defined in Section 860F(a)(2) of the
Code, on "net income from foreclosure property" of the Trust REMIC, REMIC I or
REMIC II, as defined in Section 860G(c) of the Code, on any contributions to the
Trust REMIC, REMIC I or REMIC II after the applicable 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 Servicer, if such tax arises out of or results from a breach
by the Servicer of any of its obligations under this Agreement or if the
Servicer has in its sole discretion determined to indemnify the Trust Fund
against such tax, (ii) to the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under this Article II, or
(iii) otherwise against amounts on deposit in the Custodial Account as provided
by Section 3.09 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.
-50-
(h) The Trustee and the Servicer shall, for federal income tax
purposes, maintain books and records with respect to the Trust REMIC, REMIC I
and REMIC II on a calendar year and on an accrual basis or as otherwise may be
required by the REMIC Provisions.
(i) Following the applicable Startup Day, neither the Servicer nor the
Trustee shall accept any contributions of assets to the Trust REMIC, REMIC I or
REMIC II (other than a Replacement Mortgage Loan subject to the terms and
conditions herein) unless the Servicer and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Trust
REMIC, REMIC I or REMIC II will not cause the Trust REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding, or subject the Trust
REMIC, REMIC I or REMIC II to any tax under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(j) Neither the Servicer nor the Trustee shall enter into any
arrangement by which the Trust REMIC will receive a fee or other compensation
for services nor permit the Trust REMIC, REMIC I or REMIC II 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 Delivery Date or Class AR5 Delivery Date,
as applicable, the Trustee shall prepare and file with the Internal Revenue
Service Form 8811, "Information Return for Real Estate Mortgage Investment
Conduits (REMIC) and Issuers of Collateralized Debt Obligations" for the Trust
REMIC, REMIC I or REMIC II.
(l) Neither the Trustee nor the 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 the Trust REMIC, REMIC I or REMIC
II, (iii) the termination of the Trust REMIC 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 the Trust REMIC, nor sell or dispose
of any investments in the Custodial Account or the Certificate Account for gain
nor accept any contributions to the Trust 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 the Trust
REMIC, REMIC I or REMIC II as a REMIC or (b) unless the Servicer has determined
in its sole discretion to indemnify the Trust Fund against such tax.
(m) In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided to the Trustee,
within ten days after the Delivery Date or Class AR5 Delivery Date, as
applicable, all information or data that the Trustee determines to be relevant
for tax purposes to the valuations and offering prices of the Certificates,
including, without limitation, the price, yield, prepayment assumption and
projected cash flows of the Certificates and the Mortgage Loans and the Trustee
shall be entitled to rely upon any and all such information and data in the
performance of its duties set forth herein. Thereafter, the Servicer shall
provide, promptly upon request therefor, any such additional information or data
that the Trustee may from time to time reasonably request in order to enable the
Trustee to perform its duties as set forth herein and the Trustee shall be
entitled to rely upon any and all such information and data in the performance
of its duties set forth herein. The Depositor shall indemnify the Trustee and
hold
-51-
it harmless for any loss, liability, damage, claim or expense of the Trustee
arising from any failure of the Depositor to provide, or to cause to be
provided, accurate information or data to the Trustee on a timely basis. The
Servicer shall indemnify the Trustee and hold it harmless for any loss,
liability, damage, claim or expense of the Trustee arising from any failure of
the Servicer to provide, or to cause to be provided, accurate information or
data to the Trustee on a timely basis. The indemnification provisions hereunder
shall survive the termination of this Agreement and shall extend to any
co-trustee appointed pursuant to this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 SERVICING STANDARD.
For and on behalf of the Trustee and the Certificateholders, the
Servicer shall service and administer the Mortgage Loans in accordance with
prudent mortgage loan servicing standards and procedures generally accepted in
the mortgage banking industry and generally in a manner consistent with Xxxxxx
Xxx guidelines except as otherwise expressly provided in this Agreement. In
connection with such servicing and administration, the Servicer shall have full
power and authority, acting alone and/or through any Sub-Servicer 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 (a) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents (including, without limitation, estoppel
certificates), (b) 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), (c) to collect any Insurance Proceeds and
Liquidation Proceeds, (d) to consent to any subordinate financings to be secured
by any Mortgaged Property to the extent that such consent is required pursuant
to the terms of the related Mortgage, (e) to consent to the application of any
proceeds of insurance policies or condemnation awards to the restoration of the
applicable Mortgaged Property or otherwise, and (f) subject to the provisions of
Section 3.07 and 3.13, to effectuate foreclosure or other conversion of the
ownership of the Mortgage Property securing any Mortgage Loan; provided,
however, that the Servicer shall take no action that is materially inconsistent
with or materially prejudices the interest of the Trustee or the
Certificateholders in any Mortgage Loan or the rights and interest of the
Depositor, the Trustee and the Certificateholders under the terms of this
Agreement unless such action is specifically called for by the terms hereof.
Without limiting the generality of the foregoing, but subject to the
terms hereof, the Servicer, in its own name or in the name of the Trustee, is
hereby authorized and empowered by the Depositor and the Trustee, when the
Servicer believes it appropriate in its best judgment, to execute and deliver,
on behalf of the Trustee, the Certificateholders or any of them, any and all
instruments of modification, satisfaction, cancellation or assignment, 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 Servicer shall promptly notify
the Trustee of any such execution and delivery. The Trustee for the benefit of
the Certificateholders shall furnish the Servicer with any powers of attorney
and other documents necessary or appropriate to enable the Servicer to service
and administer the Mortgage Loans.
-52-
Notwithstanding anything in this Agreement to the contrary, the
Servicer shall not (unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, imminent)
permit any modification with respect to any Mortgage Loan (i) that would change
the Net Mortgage Rate or Class AR5 Net Mortgage Rate, as applicable, or, reduce
or increase the principal balance (except for reductions resulting from actual
payments of principal) or (ii) that would both constitute a sale or exchange of
such Mortgage Loan within the meaning of Section 1001 of the Code (including any
proposed, temporary or final regulations promulgated thereunder) (other than in
connection with a proposed conveyance or assumption of such Mortgage Loan that
is a Principal Prepayment made (or treated as made) by the Mortgagor of the
entire principal balance of a Mortgage Loan) and cause an Adverse REMIC Event.
SECTION 3.02 ENFORCEMENT OF THE OBLIGATIONS OF SUB-SERVICERS.
(a) For purposes of this Agreement, the Servicer shall be deemed to
have received the payments on the Mortgage Loans referred to in Sections 3.07
and 3.08 hereof when the related Sub-Servicer, if any, has received such
payments and shall remain obligated to deposit such payments in accordance with
Sections 3.07 and 3.08 hereof, regardless of whether such payments are remitted
by the Sub-Servicer to the Servicer. The Servicer and the related Sub-Servicer
may enter into amendments to any applicable Sub-Servicing Agreement; provided,
however, that any such amendments shall be consistent with and shall not violate
the provisions of this Agreement.
(b) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Depositor, the Trustee and the Certificateholders, shall
supervise, administer, monitor and oversee the servicing of the Mortgage Loans
that are not serviced by it directly, and shall enforce the obligations of each
Sub-Servicer, if any, under the related Sub-Servicing Agreement. Such
enforcement shall include, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements, as appropriate, and the pursuit of
other appropriate remedies, and shall be in such form and carried out to such an
extent and at such time as the Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Servicer
shall pay the costs of such enforcement at its own expense, but shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys fees against the party against whom such
enforcement is directed. The Servicer shall not waive any event of default by a
Sub-Servicer under a Sub-Servicing Agreement which is a failure to remit any
payment required to be made by such Sub-Servicer that would result in an Event
of Default under this Agreement.
(c) During the term of this Agreement, the Servicer shall consult
fully with each of the Sub-Servicers as may be necessary from time to time to
perform and carry out the Servicer's obligations hereunder and receive, review
and evaluate all reports, information and other data that are provided to the
Servicer by each Sub-Servicer and otherwise exercise reasonable efforts to cause
each Sub-Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by it under its Sub-Servicing Agreement.
SECTION 3.03 TERMINATION OF THE RIGHTS OF SUB-SERVICERS.
If the Servicer terminates the rights of a Sub-Servicer under any
Sub-Servicing Agreement, the Servicer shall service the Mortgage Loans directly
pursuant to and in accordance
-53-
with the terms of this Agreement, or at the Servicer's election, enter into a
substitute servicing agreement with another mortgage loan servicing company
reasonably acceptable to the Servicer under which such mortgage loan servicing
company shall assume, satisfy, perform and carry out all liabilities, duties,
responsibilities and obligations that are to be, or otherwise were to have been,
satisfied, performed and carried out by the terminated Sub-Servicer, regardless
of whether such liabilities, duties, responsibilities or obligations shall have
accrued before or after the termination of the rights of such Sub-Servicer;
PROVIDED, HOWEVER, that any such substitute servicer and any such substitute
servicing shall satisfy the requirements of Sections 3.01 and 3.02. If the
Servicer does not elect to enter into a substitute servicing agreement with a
successor servicer, the Servicer shall nevertheless service the Mortgage Loans
directly pursuant to and in accordance with the terms of this Agreement, until a
substitute Sub-Servicer has been appointed and designated and a substitute
servicing agreement has been entered into by the Servicer and such substitute
Sub-Servicer.
SECTION 3.04 LIABILITY OF THE SERVICER.
Notwithstanding the provisions of any Sub-Servicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Servicer or a Sub-Servicer or reference to actions taken through a
Sub-Servicer or otherwise, the Servicer shall remain obligated and liable to the
Depositor, the Trustee and the Certificateholders for the servicing and
administering of the Mortgage Loans included in the Trust Fund in accordance
with (and subject to the limitations contained within) the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Sub-Servicing Agreements or agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with a Sub-Servicer for indemnification of the Servicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
SECTION 3.05 RIGHTS OF THE DEPOSITOR AND THE TRUSTEE IN RESPECT OF THE
SERVICER.
The Servicer shall afford the Depositor and the Trustee, without
charge but only upon reasonable notice and during normal business hours, access
to all records and documentation in the Servicer's possession regarding the
Mortgage Loans and to all accounts, insurance policies and other matters in the
Servicer's possession relating to this Agreement and access to officers of the
Servicer responsible for its obligations hereunder. The Depositor may, but is
not obligated to, enforce the obligations of the Servicer hereunder. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Servicer and is not obligated to supervise the performance
of the Servicer hereunder or otherwise.
SECTION 3.06 TRUSTEE TO ACT AS SERVICER.
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of an Event of Default), the Trustee
shall thereupon assume all of the rights and obligations of the Servicer
hereunder arising thereafter (except that the Trustee shall not be liable for
losses in connection with Eligible Investments required to be paid by the
Servicer pursuant to Section 3.07 or 4.01 hereof, obligated to make Monthly
Advances if prohibited by applicable law, nor to effectuate repurchases or
substitutions of Mortgage Loans hereunder as substitute Servicer, including
pursuant to Section 2.04 hereof and except that the Trustee makes no
-54-
representations and warranties hereunder, including pursuant to Section 2.04
hereof). If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Trustee (or any other
successor servicer) shall succeed to any rights and obligations of the Servicer
under any Sub-Servicing Agreement and shall be deemed to have assumed the
Servicer's interest therein; PROVIDED, HOWEVER, that the Servicer shall not
thereby be relieved of any liability or obligations under this Agreement, any
Sub-Servicing or substitute servicing agreement arising prior to the date of
such succession.
The Servicer shall, upon request of the Trustee, but at the expense of
the Servicer, deliver to the assuming party all documents and records relating
to the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of servicing to the assuming party.
SECTION 3.07 COLLECTION OF MORTGAGE LOAN PAYMENTS.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans and shall, to
the extent such procedures shall be consistent with this Agreement, follow such
collection procedures as it follows with respect to mortgage loans comparable to
the Mortgage Loans held in its own portfolio and serviced by the Servicer.
Consistent with the foregoing, the Servicer may in its discretion (a) waive any
late payment charge or any prepayment charge or penalty interest in connection
with the prepayment of a Mortgage Loan and (b) subject to Section 3.01, only
upon determining that the coverage of such Mortgage Loan by any related Primary
Mortgage Insurance Policy will not be affected, extend the due dates for
payments due on a Mortgage Note for a period not greater than 365 days, but in
no event beyond the maturity date of any Mortgage Loan. In the event of any such
arrangement described in clause (b) of the preceding sentence, the Servicer
shall continue to make timely Monthly Advances on the related Mortgage Loan,
pursuant to and in accordance with Section 5.01 of this Agreement (but subject
to any limitations contained therein), during the scheduled period in accordance
with the amortization schedule of such Mortgage Loan without modification
thereof by reason of such arrangements.
The Servicer shall establish and maintain, in its name on behalf of
the Certificateholders, the Custodial Account. The Servicer shall deposit into
the Custodial Account within two Business Days of receipt by the Servicer, or
receipt from the Sub-Servicers except as otherwise specifically provided herein,
the following payments and collections received or made by it subsequent to the
Cut-off Date (other than in respect of principal of and interest and any other
payments on the Mortgage Loans due on or before the Cut-off Date):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
less the Servicing Fee and, with respect to the Class AR5 Mortgage Loans, the
Additional Servicing Fee;
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged Property or
released to the Mortgagor in accordance with the Servicer's normal servicing
procedures, net of Liquidation Expenses, unpaid servicing compensation and
unreimbursed Monthly Advances;
-55-
(iv) any amount of any losses required to be deposited by the
Servicer pursuant to the second succeeding paragraph of this Section 3.07 in
connection with any losses on Eligible Investments;
(v) any amounts required to be deposited by the Servicer pursuant
to Section 3.11 hereof;
(vi) all proceeds of any purchase by the Seller or the Servicer,
as the case may be, of any Mortgage Loans or property acquired in respect of the
Mortgage Loans pursuant to Sections 2.01, 2.02, 2.03, 2.04, 3.12 or 10.01 hereof
and all amounts required to be deposited in connection with the substitution of
Replacement Mortgage Loans pursuant to Sections 2.01, 2.02, 2.03, 2.04 or 3.12
hereof; and
(vii) any other amounts required to be deposited in the Custodial
Account pursuant to this Agreement including, without limitation, the amounts
required to be deposited therein pursuant to Section 3.13 hereof.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, the Servicing Fee, the Additional Servicing Fee, payments in
the nature of prepayment penalties, fees or premiums, late payment charges and
assumption fees and any excess interest charges payable by the Mortgagor by
virtue of any default or other non-compliance by the Mortgagor with the terms of
the Mortgage or any other instrument or document executed in connection
therewith or otherwise, if collected, need not be remitted or deposited into the
Custodial Account by the Servicer. Notwithstanding the foregoing, the Additional
Servicing Fee may only be retained from the Class AR5 Mortgage Loans for so long
as REMIC I is in existence. In the event that the Servicer shall remit or
deposit any amount not required to be remitted or deposited and not otherwise
subject to withdrawal pursuant to Section 3.09 hereof, it may at any time
withdraw such amount from the Custodial Account on the following Distribution
Date, any provision herein to the contrary notwithstanding. Such direction may
be accomplished by delivering a Certificate of a Servicing Officer to the
Trustee which describes the amounts deposited in error in the Custodial Account.
All funds deposited in the Custodial Account shall be held by the Servicer in
trust for the Certificateholders until disbursed in accordance with this
Agreement or withdrawn in accordance with Section 3.09. In no event shall the
Trustee incur liability for withdrawals from the Custodial Account at the
direction of the Servicer.
Any investments of amounts on deposit in the Custodial Account shall
be made by the Servicer in Eligible Investments, which shall mature not later
than the second Business Day preceding the Distribution Date following the date
of such investment (except that if such Eligible Investment is an obligation of
the institution that maintains the Custodial Account, then such Eligible
Investment shall mature not later than such Distribution Date). All such
Eligible Investments shall be made in the name of the Trustee for the benefit of
the Certificateholders. All income and gain net of any losses realized from any
such investment shall be for the benefit of the Servicer and shall be subject to
withdrawal at its direction from time to time. The amount of any losses net of
any gains incurred by the Servicer in respect of any such investments shall be
remitted to the Trustee or deposited in the Custodial Account out of the
Servicer's own funds promptly following the date the same are realized.
-56-
So long as the Class I-A Certificates and the Class B Certificates are
outstanding, the Servicer shall promptly give notice to the Trustee, the Rating
Agencies and the Depositor of the location of the Custodial Account and of any
change thereof.
SECTION 3.08 COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS; ESCROW
ACCOUNTS.
In addition to the Custodial Account, the Servicer shall establish and
maintain one or more custodial accounts (each, an "Escrow Account") and deposit
and retain therein all collections from the Mortgagors (or advances by the
Servicer) for the payment of taxes, assessments and hazard insurance premiums or
comparable items for the account of the Mortgagors. Escrow Accounts shall be
Eligible Accounts. All costs incurred by the Servicer or by the related
Sub-Servicer 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
Principal Balance under the related Mortgage Loans, notwithstanding that the
terms of such Mortgage Loans so permit.
Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums or Primary Mortgage Insurance Policy premiums, condominium or PUD
association dues, or comparable items, to reimburse the Servicer pursuant to
Sections 3.10 hereof (with respect to the Primary Mortgage Insurance Policy) and
3.08 hereof (with respect to taxes and assessments) and 3.11 hereof (with
respect to hazard insurance), to refund to any Mortgagors any sums as may be
determined to be overages, to pay interest, if required, to Mortgagors on
balances in the Escrow Account or to clear and terminate the Escrow Account at
the termination of this Agreement in accordance with Section 10.01 hereof. As
part of its servicing duties, the Servicer shall, and the Sub-Servicers shall,
pursuant to any Sub-Servicing Agreement, be required to, pay to the Mortgagors
interest on funds in the Escrow Account, to the extent required by law.
The Servicer shall, with respect to each Mortgage Loan, to the extent
any related Sub-Servicer does not do so, advance the payments referred to in the
preceding paragraph that are not timely paid by the Mortgagors; PROVIDED,
HOWEVER, that the Servicer shall be required to so advance only to the extent
that such advances, in the good faith judgment of the Servicer, will be
recoverable by the Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise out of the related Mortgage Loan; and PROVIDED FURTHER, that such
payments shall be advanced when the tax, premium or other cost for which such
payment is intended is due.
SECTION 3.09 PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.
The Servicer may (and, with respect to clauses (e) and (g) below,
shall), from time to time, direct the Trustee to make, and the Trustee shall
make, to the extent required or authorized hereunder, withdrawals from the
Custodial Account for the following purposes:
(a) to pay to the Servicer from funds on deposit in the Custodial
Account earnings on or investment income with respect to funds in the Custodial
Account less losses referred to in Section 3.07(iv);
-57-
(b) to reimburse the Servicer for advances made pursuant to Sections
3.01, 3.08, 3.10, 3.11, 3.13, 5.01 and 5.02 hereof, such right of reimbursement
pursuant to this subclause (b) being limited to amounts received in respect of
the particular Mortgage Loan (including, for this purpose, Insurance Proceeds,
Liquidation Proceeds, amounts representing proceeds of other insurance policies,
if any, covering the related Mortgaged Property, rental and other income from
REO Property and proceeds of any purchase or repurchase of the related Mortgage
Loan);
(c) to reimburse the Servicer for any Nonrecoverable Advances made in
respect of any Mortgage Loan, PROVIDED, HOWEVER, that reimbursements in respect
of Mortgage Loans in Loan Group 5, Loan Group 6, Loan Group 7, Loan Group 8,
Loan Group 9 and the Class Y Mortgage Loans may only reimbursed from amounts
collected with respect to Mortgage Loans in such Loan Group or with respect to
the Class Y Mortgage Loans; and reimbursements in respect of Class AR5 Mortgage
Loans may only reimbursed from amounts collected on the Class AR5 Mortgage
Loans;
(d) to reimburse the Servicer from Liquidation Proceeds for
Liquidation Expenses and, to the extent that Liquidation Proceeds after such
reimbursement are in excess of the Principal Balance of the related Mortgage
Loan together with accrued and unpaid interest thereon at a rate equal to the
Net Mortgage Rate or Class AR5 Net Mortgage Rate, as applicable, to pay out of
such excess the amount of any unpaid servicing compensation to the Servicer with
respect to any Mortgage Loan, which may include any unpaid servicing
compensation to a Sub-Servicer (for disbursement in accordance with Section 3.16
hereof);
(e) to pay to the Seller or the Servicer, as the case may be, with
respect to each Mortgage Loan or property acquired in respect thereof that has
been purchased pursuant to Sections 2.01, 2.02, 2.03, 2.04 or 3.12 hereof all
amounts received thereon and not taken into account in determining the Purchase
Price of such repurchased Mortgage Loan;
(f) to reimburse the Servicer or the Depositor for expenses incurred
by and reimbursable to the Servicer or the Depositor pursuant to Section 7.03
hereof;
(g) to withdraw any amount deposited in the Custodial Account pursuant
to Section 3.07 and not required to be deposited therein; and
(h) to clear and terminate the Custodial Account upon termination of
this Agreement pursuant to Section 10.01 hereof. The Servicer shall keep and
maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the
purpose of justifying any withdrawal from the Custodial Account pursuant to such
subclauses (b), (c), (d) and (e).
On or prior to the Business Day preceding each Distribution Date after
payment of items (a) through (h) above, the Servicer shall withdraw from the
Custodial Account and remit to the Trustee, in immediately available funds, and
the Trustee, upon receipt thereof, shall deposit in the Certificate Account, an
amount equal to the Available Distribution Amount for such Distribution Date.
-58-
SECTION 3.10 MAINTENANCE OF PRIMARY MORTGAGE INSURANCE POLICIES;
COLLECTIONS THEREUNDER.
The Servicer shall not take, or permit any Sub-Servicer to take, any
action that would result in loss of coverage under any applicable Primary
Mortgage Insurance Policy for any loss which, but for the actions of the
Servicer or Sub-Servicer, would have been covered thereunder.
The Servicer shall keep in full force and effect each Primary Mortgage
Insurance Policy applicable to a Mortgage Loan being serviced by it until the
principal balance of the related Mortgage Loan, in the case of a Mortgage Loan
having a Loan-to-Value Ratio at origination in excess of 80%, is reduced to (a)
80% or less of the Appraised Value or (b) 80% or less of its current value based
on a new appraisal. The Servicer agrees to pay to the extent the related
Mortgagor does not do so, the premiums for each Primary Mortgage Insurance
Policy on a timely basis and shall use its best reasonable efforts to cause
itself or the Sub-Servicer to be named as loss payee, provided, however, that
the Servicer shall be required to pay such premiums only to the extent that such
advances, in the good faith judgment of the Servicer, will be recoverable by the
Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise out of the
related Mortgage Loan. In the event that the insurer under any Primary Mortgage
Insurance Policy shall cease to be qualified to transact a mortgage guaranty
insurance business under the laws of the state of its organization or any other
state that has jurisdiction over such insurer (or if such insurer's
claims-paying ability shall adversely affect the rating on the Class A
Certificates or the Class AR5 Certificates) or such Primary Mortgage Insurance
Policy is cancelled or terminated for any reason, the Servicer shall exercise
its best reasonable efforts to obtain, or to cause the related Sub-Servicer to
obtain, from another Qualified Insurer, a replacement policy comparable to such
Primary Mortgage Insurance Policy at the expense of the Mortgagor. The Servicer
shall not consent to the cancellation or refusal to renew any such Primary
Mortgage Insurance Policy applicable to any Mortgage Loan, which is in effect at
the date of the initial issuance of the Certificates and is required to be kept
in force hereunder unless the replacement Primary Mortgage Insurance Policy for
such cancelled or non-renewed policy is maintained with an insurer with a rating
not lower than the insurer issuing the Primary Mortgage Insurance Policy in
effect at the date of the initial issuance of the Certificates or whose
claims-paying will not adversely affect the rating on the Certificates or unless
any such cancellation or refusal, or consent thereto, will not adversely affect
the rating on the Certificates. In connection with any assumption and
modification agreement entered into by the Servicer or a Sub-Servicer pursuant
to Section 3.12, the Servicer shall obtain a replacement Primary Mortgage
Insurance Policy, as provided above.
In connection with its activities as administrator and servicer of the
Mortgage Loans, the Servicer agrees to present, on behalf of itself, the Trustee
for the benefit of the Certificateholders, claims to the insurer under any
Primary Mortgage Insurance Policies and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policies respecting defaulted Mortgage Loans. Pursuant to Section 3.07
hereof, any amounts collected by the Servicer under any Primary Mortgage
Insurance Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.09 hereof.
-59-
SECTION 3.11 MAINTENANCE OF HAZARD INSURANCE AND OTHER INSURANCE.
The Servicer shall cause to be maintained for each Mortgage Loan,
hazard insurance with extended coverage in an amount that is at least equal to
the maximum insurable value of improvements securing such Mortgage Loan or its
Principal Balance, whichever is less.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause complying in
all material respects in form and substance to applicable Xxxxxx Xxx guidelines.
The Servicer shall cause to be maintained on property acquired upon foreclosure
or deed in lieu of foreclosure of any Mortgage Loan, liability insurance and, to
the extent described below, flood insurance. Pursuant to Section 3.07 hereof,
any amounts collected by the Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or property thus acquired or amounts released to the Mortgagor in
accordance with the terms of the applicable Mortgage or the Servicer's normal
servicing procedures) shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.09 hereof.
Any cost incurred by the Servicer or the related Sub-Servicer in
maintaining any such insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for their
benefit, be added to the Principal Balance of the Mortgage Loan, notwithstanding
that the terms of the Mortgage Loan so permit. Such costs shall be recoverable
by the Servicer out of payments by the related Mortgagor or out of Insurance
Proceeds or Liquidation Proceeds to the extent permitted by Section 3.09 hereof.
If the Mortgaged Property is located at the time of origination of the Mortgage
Loan in a federally designated special flood hazard area, the Servicer shall
cause flood insurance to be maintained. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid Principal Balance of the related
Mortgage Loan or (ii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program, if the
area in which such Mortgaged Property is located is participating in such
program. Notwithstanding anything in this paragraph to the contrary, the
Servicer shall be required to pay the costs of maintain any insurance
contemplated by this Section 3.11 only to the extent that such advances, in the
good faith judgment of the Servicer, will be recoverable by the Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise out of the related
Mortgage Loan.
In the event that the Servicer shall obtain and maintain a blanket
policy insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first sentence of this Section 3.11, it being understood and agreed that such
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers, and
provided that the provider of such blanket policy is rated by A.M. Best Company
A:V or higher and the claims-paying ability of such provider is rated in one of
the three highest rating categories by at least one nationally recognized
statistical rating organization. If such policy contains a deductible clause,
the Servicer shall, to the extent that there shall not have been maintained on
the related Mortgaged Property a policy complying with the first sentence of
this Section 3.11 and there shall have been a loss that would have been covered
by such policy, remit to the Trustee for deposit in the Custodial Account the
amount not otherwise payable under the blanket policy because of such deductible
clause, accompanied by a certificate of a Servicing Officer describing the
calculation of such amount. In connection with its activities as administrator
and servicer of the Mortgage Loans, the Servicer
-60-
agrees to present, on behalf of itself, the Depositor, the Trustee or its agent
for the benefit of the Certificateholders, claims under any such blanket policy.
SECTION 3.12 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
(a) Except as otherwise provided in this Section 3.12(a), when any
property subject to a Mortgage has been conveyed by the Mortgagor, the Servicer
shall, to the extent that it has knowledge of such conveyance, enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. In the event that the Servicer or the
related Sub-Servicer is prohibited by law from enforcing any such due-on-sale
clause, or if coverage under any Required Insurance Policy would be adversely
affected, the Servicer is authorized, subject to Section 3.12(b), to take or
enter into an assumption and modification agreement from or with the person to
whom such property has been or is about to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, unless prohibited by
applicable state law, the Mortgagor remains liable thereon, provided that the
Mortgage Loan shall continue to be covered (if so covered before the Servicer
enters such agreement) by the applicable Required Insurance Policies. The
Servicer, subject to Section 3.12(b), is also authorized with the prior approval
of the insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with such person, pursuant to which the
original Mortgagor is released from liability and such person is substituted as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section
3.12(a) by reason of any transfer or assumption which the Servicer is restricted
by law from preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.12(a) hereof, in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, if an
assumption is permitted under Section 3.12(a) and such Person is to enter into
an assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage held for the benefit of the Certificateholders 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 Servicer shall deliver or cause to be delivered to the Trustee for signature
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. The Servicer shall also deliver or cause to be delivered to the
Trustee with the foregoing documents a letter explaining the nature of such
documents and the reason or reasons why the Trustee's signature is required.
With such letter, the Servicer shall deliver to the Trustee a
certificate of a Servicing Officer certifying that: (i) a Servicing Officer has
examined and approved such documents as to form and substance, (ii) the
Trustee's execution and delivery thereof will not conflict with or violate any
terms of this Agreement or cause the unpaid balance and interest on the Mortgage
Loan to be uncollectible in whole or in part, (iii) any required consents of
insurers under any Required Insurance Policies have been obtained and (iv)
subsequent to the closing of the transaction involving the assumption or
transfer (A) the Mortgage Loan will continue to be secured by a first mortgage
lien pursuant to the terms of the Mortgage, (B) such transaction will not
adversely affect the
-61-
coverage under any Required Insurance Policies, (C) the Mortgage Loan will fully
amortize over the remaining term thereof or, if the Mortgage Loan provided that
the amortization period on which the Monthly Payments were based was a longer
period, such period has not been extended, (D) the interest rate on the Mortgage
Loan will not be altered nor will the term of the Mortgage Loan be increased as
a result of such assumption or transfer and (E) if the seller/transferor of the
Mortgaged Property is to be released from liability on the Mortgage Loan, the
Servicer used the same underwriting standards in evaluating the creditworthiness
of the purchaser/transferee as were used in making the original Mortgage Loan,
and such release will not (based on the Servicer's good faith determination)
adversely affect the collectibility of the Mortgage Loan. Upon receipt of such
certificate, the Trustee for the benefit of the Certificateholders shall execute
any necessary instruments for such assumption or substitution of liability. Upon
the closing of the transactions contemplated by such documents, the Servicer
shall cause the originals of the assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Note or Mortgage to be delivered
to the Trustee or its agent for the benefit of the Certificateholders and
deposited with the Trustee Mortgage File for such Mortgage Loan. Any fee
collected by the Servicer for entering into an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation.
In the event that the Servicer, in connection with any such assumption
or modification agreement or supplement to the Mortgage Note, is unable to
deliver the certificate of the Servicing Officer set forth above, the Servicer
shall purchase, or cause the related Sub-Servicer to purchase the related
Mortgage Loan in the manner, and at the Purchase Price, set forth in Section
2.04 hereof.
SECTION 3.13 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
The Servicer shall foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which, in the reasonable judgment of the Servicer,
no satisfactory arrangements can, in accordance with prudent lending practices,
be made for collection of delinquent payments pursuant to Section 3.01 hereof.
In connection with such foreclosure or other conversion, the Servicer shall
follow such practices and procedures as it shall deem necessary or advisable, as
shall be normal and usual in its general mortgage servicing activities and for
its own portfolio and as are in accordance with the requirements of the insurer
under any Required Insurance Policy and shall deliver to the Trustee a
liquidation report with respect to the related Mortgage Loan on the form of
report customarily prepared by the Servicer. In particular, the Servicer will
service each Mortgage Loan in a manner that preserves the right to proceed
against all collateral securing such Mortgage Loan (e.g., in accordance with any
applicable "single action" rule). The Servicer shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration,
repair, protection or maintenance of any property unless it shall determine in
its sole discretion that such expenses will be recoverable to it as Liquidation
Expenses either through Liquidation Proceeds (respecting which it shall have
priority for purposes of withdrawals from the Custodial Account pursuant to
Section 3.09 hereof) or through Insurance Proceeds (respecting which it shall
have similar priority). The Servicer shall be responsible for all other costs
and expenses incurred by it in any such proceedings; PROVIDED, HOWEVER, that it
shall be entitled to reimbursement thereof from the proceeds of liquidation of
the related Mortgaged Property, as contemplated in Section 3.09 hereof.
-62-
In the event that any Mortgaged Property becomes an REO Property, the
deed or certificate of sale shall be taken in the name of the Trustee for the
benefit of the Certificateholders, or its nominee, on behalf of the
Certificateholders. Pursuant to its efforts to sell such REO Property, the
Servicer shall either itself or through an agent selected by the Servicer
protect and conserve such REO Property in the same manner and to such extent as
is customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the Servicer deems to
be in the best interest of the Servicer and the Certificateholders for the
period prior to the sale of such REO Property on such terms and conditions and
for such periods as the Servicer deems to be in the best interest of the
Servicer and the Certificateholders. Notwithstanding anything herein to the
contrary, in the event that the Trust REMIC, REMIC I or REMIC II acquires any
REO Property as aforesaid or otherwise in connection with a default or imminent
default on a Mortgage Loan, the Servicer, on behalf of the Trust REMIC, REMIC I
or REMIC II, shall dispose of such REO Property as soon as practicable, and in
any event within three full years after the taxable year of its acquisition by
the Trust REMIC, REMIC I or REMIC II for purposes of Section 860G(a)(8) of the
Code (or such shorter period as may be necessary under applicable state
(including any state in which such property is located) law to maintain the
status of the Trust REMIC, REMIC I or REMIC II as a REMIC under applicable state
law and avoid taxes resulting from such property failing to be foreclosure
property under applicable state law) or, at the expense of the Trust REMIC,
REMIC I or REMIC II, request, more than 60 days before the day on which such
grace period would otherwise expire, an extension of such grace period unless
the Servicer obtains for the Trustee an Opinion of Counsel, addressed to the
Trustee and the Servicer, to the effect that the holding by the Trust REMIC,
REMIC I or REMIC II of such REO Property subsequent to such period will not
result in the imposition of taxes on "prohibited transactions" as defined in
Section 860F of the Code, or cause the Trust REMIC, REMIC I or REMIC II to fail
to qualify as a REMIC under the Code at any time that any Certificates are
outstanding, in which case the Trust REMIC, REMIC I or REMIC II may continue to
hold such REO Property (subject to any conditions contained in such Opinion of
Counsel). The Servicer shall be entitled to be reimbursed from the Custodial
Account for any costs incurred in obtaining such Opinion of Counsel.
Notwithstanding any other provision of this Agreement, no REO Property acquired
by the Trust REMIC, REMIC I or REMIC II shall be rented (or allowed to continue
to be rented) or otherwise used by or on behalf of the Trust REMIC, REMIC I or
REMIC II in such circumstances or manner or pursuant to any terms that would (i)
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or (ii) subject the Trust REMIC, REMIC
I or REMIC II to the imposition of any federal income taxes on the income earned
from such REO Property, including any taxes imposed by reason of Section 860G(c)
of the Code, unless the Servicer has agreed to indemnify and hold harmless the
Trust REMIC, REMIC I or REMIC II with respect to the imposition of any such
taxes.
The decision of the Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by the Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any Mortgaged Properties acquired
through foreclosure or other judicial proceeding on behalf of the
Certificateholders, net of reimbursement to the Servicer for expenses incurred
(including any taxes) in connection with such management, advances made by the
Servicer pursuant to Sections 3.01, 3.08, 3.10, 3.11, 3.13, 5.01 or 5.02 in
connection with the related Mortgage Loan or REO Property and Liquidation
Expenses incurred by the Servicer in connection with the related Mortgage Loan,
shall be applied to the payment of principal of and interest on the related
defaulted Mortgage Loans
-63-
(with interest accruing and principal amortizing as though such Mortgage Loans
were still current) and all such income shall be deemed, for all purposes in
this Agreement, to be payments on account of principal of and interest on the
related Mortgage Notes and shall be deposited into the Custodial Account.
Prior to obtaining or causing the Trustee to obtain a deed as a result
of or in lieu of foreclosure, or otherwise acquiring (or causing the Trustee to
acquire) possession of or title to any Mortgaged Property, if the Servicer
determines that obtaining a deed or otherwise acquiring title or possession of
such Mortgaged Property would likely subject the Servicer, the Trustee or the
Trust Fund to substantial liability in respect of environmental conditions
concerning the Mortgaged Property, (a) the Servicer shall (i) notify the Trustee
and the Depositor of such determination and (ii) refrain from obtaining or
directing the Trustee to obtain a deed as a result of or in lieu of foreclosure
or otherwise acquiring title or possession to such Mortgaged Property and (b)
the obligations of the Servicer to make advances, including, without limitation,
Monthly Advances, in connection with the Mortgage Loan in question shall cease
as of the date that the Servicer makes such determination.
SECTION 3.14 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, and upon notification by the Servicer in the form
of a certification (which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Custodial Account have been or will be
so deposited) of a Servicing Officer and a Request for Release of the Trustee
Mortgage File in the form of Exhibit E hereto the Trustee shall promptly release
the related Trustee Mortgage File to the Servicer, and the Trustee shall execute
and deliver to the Servicer the request for reconveyance, deed of reconveyance
or release, satisfaction or assignment of mortgage or such instrument releasing
the lien of the Mortgage, and, in each case, such other documents or instruments
as may be reasonably required in connection therewith, as directed by the
Servicer, together with the Mortgage Note with written evidence of cancellation
thereon. The provisions of the immediately preceding sentence shall not, in any
manner, limit or impair the right of the Servicer to execute and deliver, on
behalf of the Trustee, the Certificateholders or any of them, any and all
instruments of satisfaction, cancellation or assignment, 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. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account but shall be paid by the Servicer. From time to time and as
shall be appropriate for the servicing or foreclosure of any Mortgage Loan,
including, without limitation, 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 or total 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 Trustee Mortgage
File, the Trustee shall, upon request of the Servicer and the delivery to the
Trustee of a Request for Release signed by a Servicing Officer, in the form of
Exhibit E hereto, release the Trustee Mortgage File to the Servicer. If the
Servicer at any time seeks to initiate a foreclosure proceeding in respect of
any Mortgaged Property, the Servicer shall deliver 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
-64-
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, together with a
certificate of a Servicing Officer requesting that such pleadings or documents
be executed by the Trustee. A Servicing Officer shall certify as to the reason
such documents or pleadings are required and that the execution and delivery
thereof by the Trustee will not invalidate the insurance coverage under any
Required Insurance Policy or invalidate or otherwise affect the lien of the
Mortgage except for the termination of such lien upon completion of the
foreclosure.
SECTION 3.15 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SERVICER TO BE
HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the Servicer
shall transmit to the Trustee to the extent required by this Agreement all
documents and instruments coming into the possession of the Servicer from time
to time and shall account fully to the Trustee for the benefit of the
Certificateholders for any funds received by the Servicer or which otherwise are
collected by the Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan. All Servicer Mortgage Files or Trustee Mortgage
Files and funds collected or held by, or under the control of, the Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds or Insurance Proceeds, including
but not limited to, any funds on deposit in the Custodial Account, shall be held
by the Servicer for and on behalf of the Trustee for the benefit of the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement. The
Servicer also agrees that it shall not create, incur or subject any Servicer
Mortgage File or Trustee Mortgage File or any funds that are deposited in the
Custodial Account or any Servicing or Escrow Account, or any funds that
otherwise are or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Servicer Mortgage File or Trustee Mortgage
File or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Servicer shall be entitled to set off against and deduct from
any such funds any amounts that are properly due and payable to the Servicer
under this Agreement subject to the terms of this Agreement.
SECTION 3.16 SERVICING COMPENSATION; COMPENSATING INTEREST.
As compensation for its activities hereunder, the Servicer shall be
entitled to (a) retain from the Monthly Payments the Servicing Fee for each
Mortgage Loan and the Additional Servicing Fee for each Class AR5 Mortgage Loan,
and (b) retain from the Custodial Account or withdraw from the Custodial Account
the amounts specified in subclause (a) of Section 3.09 hereof as payable to it.
Notwithstanding the foregoing, the Additional Servicing Fee may only be retained
from the Class AR5 Mortgage Loans.
Additional servicing compensation in the form of prepayment penalties,
fees or premiums, assumption fees, modification fees, late payment charges or
otherwise or any excess interest charges payable by the Mortgagor by virtue of
any default or other non-compliance by the Mortgagor with the terms of the
Mortgage or any other instrument or document executed in connection therewith or
otherwise shall be retained by the Servicer to the extent not required to be
deposited in the Custodial Account pursuant to Section 3.07 hereof. To the
extent provided in this
-65-
Agreement, the Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including the payment of
premiums for Primary Mortgage Insurance Policies, to the extent such premiums
are not required to be paid or have not been paid by the related Mortgagor or
the related Sub-Servicer, payment of any premiums for hazard insurance, as
required by Section 3.11 hereof and maintenance of the other forms of insurance
coverage required by Section 3.11 hereof, the payment of servicing compensation
to any Sub-Servicers pursuant to any Sub-Servicing Agreement and the payment of
the expenses of the Trustee to the extent provided in Section 9.05), and shall
not be entitled to reimbursement therefor except as specifically provided in
Sections 3.09, 3.13, 4.01 and 5.03 hereof.
Notwithstanding any other provision herein, the amount of servicing
compensation that the Servicer shall be entitled to receive for its activities
hereunder for the period ending on each Distribution Date shall be reduced (but
not below zero) by an amount equal to Compensating Interest (if any) for such
Distribution Date. The Servicer shall, within one Business Day of each
Distribution Date, remit to the Trustee the Compensating Interest due on such
Distribution Date. In the event that more than one Loan Group is entitled to
Compensating Interest and the amount of the aggregate Compensating Interest is
less than interest that should have been remitted on Principal Prepayments in
Full by Mortgagors during the related Due Period, such Compensating Interest
shall be distributed pro rata among each Loan Group.
SECTION 3.17 REPORTS TO THE DEPOSITOR; ACCOUNT STATEMENTS.
Within five Business Days following each Distribution Date, the
Servicer shall deliver to the Trustee a statement setting forth the status of
the Custodial Account, if any, as of the close of business on such Distribution
Date showing, for the period covered by such statement, the aggregate of
deposits in or withdrawals from the Custodial Account, if any, for each category
of deposit specified in Section 3.07 hereof and each category of withdrawal
specified in Section 3.09 hereof.
As long as the Class I-A Certificates and the Class B Certificates are
outstanding, the Servicer shall forward a copy of such statement to the Rating
Agencies.
SECTION 3.18 ANNUAL STATEMENT AS TO COMPLIANCE.
The Servicer shall deliver to the Depositor and the Trustee on or
before March 31 of each year, commencing March 31, 2001, an Officers'
Certificate stating, as to each signer thereof, that (a) a review of the
activities of the Servicer during the year ended on the preceding December 31
and of the performance of the Servicer under this Agreement has been made under
such officer's supervision, (b) to the best of such officer's knowledge, based
on such review, the Servicer has fulfilled all its obligations under this
Agreement in all material respects 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, (c) a Servicing Officer
has conducted an examination of the activities of each Sub-Servicer during the
immediately preceding year and its performance under any Sub-Servicing
Agreement, and (d) to the best of such Servicing Officer's knowledge, based on
such examination, each Sub-Servicer has performed and fulfilled its duties,
responsibilities and obligations under such Sub-Servicing Agreement in all
material respects throughout such year, or if there has been a default in the
performance or fulfillment of any such
-66-
duties, responsibilities or obligations, specifying each such default known to
such Servicing Officer and the nature and status thereof.
As long as the Class I-A Certificates and the Class B Certificates are
outstanding, the Servicer shall forward a copy of such statement to the Rating
Agencies.
SECTION 3.19 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before March 31 of each year, beginning with the first March 31
that occurs at least eleven months after the Cut-off Date, the Servicer, at its
expense, shall cause a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Depositor and the Trustee for the benefit of the Certificateholders to
the effect that such firm has examined certain documents substantially similar
to this Agreement and records relating to the servicing of mortgage loans
serviced by the Servicer or any successor servicer that are substantially
similar to the Mortgage Loans and that, on the basis of an examination conducted
substantially in compliance with the Uniform Single Audit Program for Mortgage
Bankers or the Audit Program for Mortgages serviced for Freddie Mac, such
servicing has been conducted in compliance with such agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
the Uniform Single Audit Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for Freddie Mac requires it to report. In rendering such
statement such firm may rely, as to matters relating to direct servicing of
Mortgage Loans by Sub-Servicers, if any, upon comparable statements for
examinations conducted substantially in compliance with the Uniform Single Audit
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
Freddie Mac (rendered within one year of such statement) of independent public
accounts with respect to the related Sub-Servicer.
As long as the Class I-A Certificates and the Class B Certificates are
outstanding, the Servicer shall forward a copy of such statement to the Rating
Agencies.
SECTION 3.20 REPORTS TO TRUSTEE.
On or prior to each Determination Date, the Servicer shall cause to be
delivered to the Trustee a monthly servicing report in electronic format
containing the information necessary to enable the Trustee to make the
distribution required by Section 4.02 and prepare the information set forth in
Section 4.04(a). The Trustee may conclusively rely on information provided by
the Servicer and shall have no obligation to recompute, recalculate, or verify
the accuracy of such information.
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 CERTIFICATE ACCOUNT.
The Trustee shall establish, prior to the Delivery Date, and shall
maintain, in the name of the Trustee on behalf of the Holders of interests in
the Trust Fund, the Certificate Account, which shall be an Eligible Account,
into which the Trustee upon receipt from the Servicer shall deposit all payments
remitted by the Servicer and any amounts required to be remitted by the
Depositor pursuant to the terms hereof. All distributions to be made from time
to time to Holders of interests in the Trust Fund out of funds in the
Certificate Account shall be made by or on behalf
-67-
of the Trustee. The Trustee will give notice to the Servicer, the Depositor and,
so long as any Class I-A or Class B Certificate is outstanding, the Rating
Agencies, of the location of the Certificate Account and of any change thereof,
prior to the use thereof. Funds held in the Certificate Account and delivered to
the Trustee earlier than one Business Day prior to the next Distribution Date
shall be invested by the Trustee in Eligible Investments as directed by the
Servicer or shall remain uninvested. The Trustee shall cause each such Eligible
Investment to be Delivered to it or its nominee (including a securities
intermediary). All income and gain net of any losses realized from any such
investment shall be for the benefit of the Servicer and shall be subject to
withdrawal at the Servicer's direction from time to time. The amount of any
losses net of any gains incurred by the Servicer in respect of any such
investments shall be deposited in the Certificate Account out of the Servicer's
own funds immediately as realized. Funds on deposit in the Certificate Account
on the Business Day prior to the next Distribution Date shall be uninvested.
The Trustee shall make, to the extent required or authorized
hereunder, withdrawals from the Certificate Account for the following purposes:
(i) to withdraw any amount deposited in the Certificate Account
and not required to be deposited therein;
(ii) to reimburse the Servicer for any unreimbursed
Nonrecoverable Advance, PROVIDED, HOWEVER, that reimbursements in respect of
Mortgage Loans in Loan Group 5, Loan Group 6, Loan Group 7, Loan Group 8 and
Loan Group 9 as a group and the Class Y Mortgage Loans may only reimbursed from
aggregate amounts collected with respect to Mortgage Loans in such Loan Groups
or with respect to the Class Y Mortgage Loans, respectively, and reimbursements
in respect of Class AR5 Mortgage Loans may only reimbursed from amounts
collected on the Class AR5 Mortgage Loans;
(iii) to make required distributions pursuant to Section 4.02;
and
(iv) to pay to the Depositor or the Servicer any amount to which
it is entitled pursuant to Section 7.03.
SECTION 4.02 DISTRIBUTIONS.
(a) On each Distribution Date, the Trustee shall withdraw from the
Certificate Account:
(x) an amount equal to the Available Distribution Amount for each Loan
Group and pay such amount in the following order of priority:
(i) to the holders of the Class A Certificates or Class R
Certificates in such Loan Group the related Class A Interest Distribution Amount
and the Class A Cumulative Interest Shortfall Amount or Class R Interest
Distribution Amount, as applicable; provided that if the Available Distribution
Amount is insufficient to make the full distributions of interest referred to in
this clause, the Available Distribution Amount shall be distributed to such
Class A Certificates pro rata based on such full amounts allocable to such Class
and provided further that with respect to Loan Group 9 such amount shall be
first paid to the holders of the Class R Certificates in respect of the Class R
Interest Distribution Amount;
-68-
(ii) to the Class A Certificates in such Loan Group (or, with
respect to Loan Group 9, the Class R Certificateholders and Class A
Certificateholders in such Loan Group) until the aggregate Certificate Principal
Balance of the Class A Certificates (or, with respect to Loan Group 9, the Class
R Certificateholders and Class A Certificateholders in such Loan Group) have
been reduced to zero (applied to reduce the Certificate Principal Balance of the
Class A Certificates or Class R Certificates, as applicable) the related Class A
Principal Distribution Amount or Class R Principal Distribution Amount, as
applicable; and
(iii) to the Class R Certificates, the balance, if any, of the
Available Distribution Amount.
(y) On each Distribution Date for the Class AR5 Certificates, the Class Y
Distribution Amount shall be distributed to the holder of the Class Y
Certificates.
(z) the Trustee shall distribute the Available Distribution Amount with
respect to the Class AR5 Certificates on each Distribution Date to the Holders
of the Class AR5 Certificates in the following order of priority:
(i) first, to the holders of the Class I-R Certificates in respect of
the Class R-II Component, the Class R-I Interest Distribution Amount, and
then to the holders of the Class I-A Certificates, the Class I-A Interest
Distribution Amount and any Class I-A Cumulative Interest Shortfall Amount;
(ii) second, to the holders of the Class I-R Certificates in respect
of Class R-II Component, the Senior Principal Distribution Amount until the
respective Certificate Principal Balances thereof have been reduced to zero
and then to the holders of the Class I-A Certificates, the Senior Principal
Distribution Amount;
(iii)third, to the holders of Class B-1 Certificates, the Class B-1
Interest Distribution Amount and any Class B-1 Cumulative Interest
Shortfall Amount;
(iv) fourth, to the Holders of the Class B-1 Certificates, the portion
of the Subordinate Principal Distribution Amount distributable to the Class
B-1 Certificates;
(v) fifth, to the holders of Class B-2 Certificates, the Class B-2
Interest Distribution Amount and any Class B-2 Cumulative Interest
Shortfall Amount;
(vi) sixth, to the Holders of the Class B-2 Certificates, the portion
of the Subordinate Principal Distribution Amount distributable to the Class
B-2 Certificates;
(vii) seventh, to the holders of Class B-3 Certificates, the Class B-3
Interest Distribution Amount and any Class B-3 Cumulative Interest
Shortfall Amount;
(viii) eighth, to the Holders of the Class B-3 Certificates, the
portion of the Subordinate Principal Distribution Amount distributable to
the Class B-3 Certificates;
(ix) ninth, to the holders of Class B-4 Certificates, the Class B-4
Interest Distribution Amount and any Class B-4 Cumulative Interest
Shortfall Amount;
-69-
(x) tenth, to the Holders of the Class B-4 Certificates, the portion
of the Subordinate Principal Distribution Amount distributable to the Class
B-4 Certificates;
(xi) eleventh, to the holders of Class B-5 Certificates, the Class B-5
Interest Distribution Amount and any Class B-5 Cumulative Interest
Shortfall Amount;
(xii) twelfth, to the Holders of the Class B-5 Certificates, the
portion of the Subordinate Principal Distribution Amount distributable to
the Class B-5 Certificates;
(xiii) thirteenth, to the holders of Class B-6 Certificates, the Class
B-6 Interest Distribution Amount and any Class B-6 Cumulative Interest
Shortfall Amount;
(xiv) fourteenth, to the Holders of the Class B-6 Certificates, the
portion of the Subordinate Principal Distribution Amount distributable to
the Class B-6 Certificates; and
(xv) fifteenth, any remaining amounts to the holders of the Class I-R
Certificates in respect of the Class R-I Component.
(b) The Trustee shall be responsible for the calculations with respect
to distributions from the Certificate Account so long as the Trust Fund has not
been terminated in accordance with this Agreement. All distributions made to
Certificateholders of any Class on such Distribution Date will be made to the
Certificateholders of the respective Class of record on the immediately
preceding Record Date, except for the final distribution, which shall be made as
provided in the form of Certificate. All distributions made to the
Certificateholders shall be based upon the Percentage Interest represented by
their respective Certificates. If on any Determination Date, the Trustee
determines that there are no Mortgage Loans outstanding and no other funds or
assets in the Trust Fund other than the funds in the Certificate Account, the
Trustee shall promptly send the final distribution notice to each
Certificateholder specifying the manner in which the final distribution will be
made.
(c) Any Certificateholder shall be entitled to receive distributions
hereunder on a Distribution Date (other than as provided in Section 10.02
respecting the final distribution) by wire transfer to the account specified in
writing by the Certificateholder to the Trustee if the Initial Certificate
Principal Balance evidenced by such Holder's Certificate is at least equal to
$2,500,000 or the Percentage Interest thereof is 100%; provided, however, that
any distribution in respect of any Certificate that is held by the Seller or the
Servicer (regardless of Initial Certificate Balance) shall be paid by wire
transfer if the Seller or Servicer, as applicable, has provided to the Trustee,
in writing, the account for such wire transfer. In each case, the account must
be specified in writing at least five Business Days prior to the Record Date for
the Distribution Date, as applicable, on which wire transfers will commence. All
other distributions shall be made by check payable to the Certificateholder
mailed by first class mail to the address of such Certificateholder reflected in
the Certificate Register.
SECTION 4.03 ALLOCATION OF REALIZED LOSSES.
Prior to each Distribution Date, based on the information provided by
the Servicer in its monthly report, the Trustee shall determine the total of
Realized Losses, if any, incurred with respect to the Mortgage Loans in each
Loan Group during the previous Prepayment Period. On each Distribution Date,
Realized Losses will be allocated after the distribution of principal
-70-
and interest on such Distribution Date; PROVIDED, HOWEVER, that if the
Certificate Principal Balance of any Class of Certificates would be reduced to
zero as a result of Realized Losses to be allocated on such Distribution Date if
no funds were available for distributions on the Certificates, then Realized
Losses will be allocated to such Class prior to the distribution of principal
and interest. In every case, each Loan Group and the Class A Certificates
related thereto, shall bear Realized Losses incurred in such Loan Group. Class
AR5 Certificates shall only bear Realized Losses allocated to the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates in accordance with the last
paragraph of this Section 4.03 on the related Distribution Date.
Except as provided in the following sentence, any allocation of the
principal portion of Realized Losses to a Class of Certificates shall be made by
reducing the Certificate Principal Balance thereof by the amount so allocated,
which allocation shall be deemed to have occurred on such Distribution Date.
Allocations of the interest portions of Realized Losses shall be made by
operation of the provisions of Section 4.02(a). All Realized Losses and all
other losses allocated to a Class of Certificates hereunder will be allocated
among the Certificates of such Class in proportion to the Percentage Interests
evidenced thereby.
The Class AR5 Certificates shall bear only the Realized Losses on the
Class AR5 Mortgage Loans. Except for Special Hazard Losses in excess of the
Special Hazard Coverage, Fraud Losses in excess of the Fraud Coverage and
Bankruptcy Losses in excess of the Bankruptcy Coverage, Realized Losses on the
Class AR5 Mortgage Loans shall be allocated (without duplication) first to the
Class B-6 Certificates until the Certificate Principal Balance thereof has been
reduced to zero, then to the Class B-5 Certificates until the Certificate
Principal Balance thereof has been reduced to zero, then to the Class B-4
Certificates until the Certificate Principal Balance thereof has been reduced to
zero, then to the Class B-3 Certificates until the Certificate Principal Balance
thereof has been reduced to zero, then to the Class B-2 Certificates until the
Certificate Principal Balance thereof has been reduced to zero, then to the
Class B-1 Certificates until the Certificate Principal Balance thereof has been
reduced to zero, then to the Class I-A Certificates. All Realized Losses and all
other losses allocated to a Class of Class AR5 Certificates hereunder will be
allocated among the Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. Special Hazard Losses in excess of the Special
Hazard Coverage, Fraud Losses in excess of the Fraud Coverage and Bankruptcy
Losses in excess of the Bankruptcy Coverage shall be allocated among the Class
AR5 Certificates by Pro Rata Allocation.
SECTION 4.04 MONTHLY STATEMENTS TO CERTIFICATEHOLDERS.
(a) Not later than each Distribution Date, the Trustee shall prepare
and the Trustee shall cause to be forwarded by mail to each Certificateholder,
the Servicer, the Depositor, and, as long as the Class AR5 Certificates are
outstanding, to the Rating Agencies and Bloomberg, a statement setting forth the
following information as to each Class of Certificates to the extent applicable:
(i) the amount of such distribution representing principal,
separately identifying (1) the aggregate amount of any Principal Prepayments
included therein, (2) the portion of such distribution, if any, representing a
Monthly Advance of principal, and (3) the aggregate Certificate Principal
Balance of each Class Certificates, after giving effect to such distributions,
separately identifying any reduction thereof due to Realized Losses other than
pursuant to an actual distribution of principal;
-71-
(ii) the amount of such distribution representing interest and
the portion of such distribution, if any, representing a Monthly Advance of
interest;
(iii) the aggregate Principal Balances of the Mortgage Loans as
of the close of business on such Distribution Date and the amount of Principal
Prepayments and the aggregate Principal Balances of the Mortgage Loans
repurchased by the Seller during the immediately preceding Prepayment Periods;
(iv) the Servicing Fees and Additional Servicing Fees (as
applicable) retained by the Servicer;
(v) the amount of Monthly Advances paid by the Servicer,
segregating such Monthly Advances relating to Loan Group 5, Loan Group 6, Loan
Group 7, Loan Group 8, Loan Group 9 and the Class Y Mortgage Loans, and the
Monthly Advances relating to the Class AR5 Mortgage Loans;
(vi) the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (1) one month, (2) two months, (3) three months or more and (B)
in foreclosure and (C) in bankruptcy;
(vii) the book value (within the meaning of 12 C.F.R.ss.571.13 or
comparable provision) of any REO Property;
(viii) the respective amounts, if any, of Realized Losses
allocated to the respective Classes of Certificates with respect to such
Distribution Date;
(ix) all Monthly Advances recovered during the related Due Period
and the extent of Monthly Advances remaining unreimbursed;
(x) the amount of any tax imposed on a "prohibited transaction"
of the Trust Fund as defined in Section 860F of the Code during the related Due
Period;
(xi) the amount of any reduction in Certificate Principal
Balance, the Class A Cumulative Interest Shortfall Amount or Class A or Class R
Interest Distribution Amount for any Class attributable to the application of
Realized Losses thereto on such Distribution Date;
(xii) the Certificate Rate applicable for such Distribution Date
and the Class AR5 Pass-Through Rate applicable for such Distribution Date;
(xiii) the aggregate principal balance of all Mortgage Loans
which are the subject of substitution or purchase by the Seller pursuant to
Section 2.01. 2.02. 2.03, 2.04 or 3.12, during the month of such Distribution
Date, together with the number of such Mortgage Loans removed and the amount of
any resulting shortage deposited into the Custodial Account by the Seller or
Servicer in such month;
(xiv) the Class AR5 Distribution Amount;
(xv) the Class Y Distribution Amount, separating out such amount
allocable to principal and such amount allocable to interest;
-72-
(xvi) the Cumulative Interest Shortfall Amount for each Class, as
applicable; and
(xvii) cumulative Realized Losses since the Delivery Date and for
the three year period commencing on the Delivery Date.
The foregoing information shall be provided by the Trustee to the holders of the
Class AR Certificates via the Trustee's internet website. The Trustee's internet
website shall initially be located at "xxx.xxx.xxxxxxx.xxx." Assistance in using
the website can be obtained by calling the Trustee's customer service desk at
(000) 000-0000. Parties that are unable to use the website are entitled to have
a paper copy mailed to them via first class mail by calling the customer service
desk and indicating such. The Trustee shall have the right to change the way
Distribution Date statements are distributed to the holders of the Class AR
Certificates in order to make such distribution more convenient and/or more
accessible to the above parties, provided that such procedures are no less
convenient for the Class AR Certificateholders, and the Trustee shall provide
timely and adequate notification to all above parties regarding any such changes
(b) Upon reasonable advance notice in writing, if required by federal
regulation, the Trustee will provide to each Certificateholder that is a savings
association, bank or insurance company certain reports and access to information
and documentation regarding the Mortgage Loans sufficient to permit such
Certificateholder to comply with applicable regulations of the Office of Thrift
Supervision or other regulatory authorities with respect to investment in the
Certificates and the Servicer shall cooperate with the Trustee in providing such
information; provided, however, that the Trustee shall be entitled to be
reimbursed by each such Certificateholder for the Trustee's actual expenses
incurred in providing such reports and access. The Trustee will provide to any
Certificateholder upon request the outstanding Certificate Principal Balances as
of the date requested and, if then known by the Trustee, the outstanding
Certificate Principal Balances after giving effect to any distribution to be
made on the next following Distribution Date.
SECTION 4.05 PREPAYMENT INTEREST SHORTFALLS AND RELIEF ACT SHORTFALLS.
Prepayment Interest Shortfalls resulting in any Loan Group from a
Principal Prepayment of a Mortgage Loan during any Prepayment Period and Relief
Act Shortfalls occurring during the related Interest Accrual Period will be
applied to reduce the Interest Distribution Amount of the Class A Certificates
in such Loan Group. Prepayment Interest Shortfalls resulting with respect to the
Class AR5 Mortgage Loans or the Class Y Mortgage Loans from a Principal
Prepayment of a Mortgage Loan during any Prepayment Period and Relief Act
Shortfalls occurring during the related Due Period will be applied to reduce the
Interest Distribution Amount of each Class of the Class AR5 Certificates pro
rata based upon the amount of the Interest Distribution Amount that would have
been distributed to such Class absent such reduction or the Class Y
Certificates, respectively.
-73-
ARTICLE V
ADVANCES
SECTION 5.01 MONTHLY ADVANCES BY THE SERVICER.
Subject to the conditions of this Article V, the Servicer, as required
below, shall make a Monthly Advance to the Certificate Account, in the amount,
if any, of the aggregate Monthly Payments less Prepayment Interest Shortfalls
and Relief Act Shortfalls, after adjustment of the interest portion of each such
Monthly Payment to the Net Mortgage Rate or Class AR5 Net Mortgage Rate, as
applicable, on the Mortgage Loans that were due on the Due Date but that were
not received and remitted to the Certificate Account on or prior to the Servicer
Advance Date. The Servicer shall be obligated to make any such Monthly Advance
only to the extent that such advance, in the good faith judgment of the
Servicer, will not be a Nonrecoverable Advance. Monthly Advances with respect to
the Mortgage Loans in Loan Group 5, Loan Group 6, Loan Group 7, Loan Group 8,
Loan Group 9 and the Class Y Mortgage Loans shall only be allocated to the Class
A-5, Class A-6, Class A-7, Class A-8, Class A-9, and Class Y Certificates
collectively and Monthly Advances with respect to the Class AR5 Mortgage Loans
shall only be allocated to the Class AR5 Certificates.
On the Determination Date immediately preceding the related
Distribution Date, the Servicer shall determine whether and to what extent any
Mortgagor has failed to make any Monthly Payment due on the Due Date and whether
such deficiencies, if advanced by the Servicer, would be a Nonrecoverable
Advance. If the Servicer shall have determined that it is not obligated to make
the entire Monthly Advance because all or a lesser portion of such Monthly
Advance would not be recoverable by the Servicer from related Insurance Proceeds
or Liquidation Proceeds (net of Liquidation Expenses), the Servicer shall
deliver to the Trustee, not less than two Business Days prior to the related
Distribution Date, for the benefit of the Certificateholders, a certificate of a
Servicing Officer setting forth the reasons for such determination.
In lieu of making all or a portion of any Monthly Advance, the
Servicer may cause to be made an appropriate entry in its records relating to
the Custodial Account that funds in such account, including but not limited to
any amounts received in respect of scheduled principal and interest on any
Mortgage due after the related Due Period, in excess of the Available
Distribution Amount (less the amount of such Monthly Advance) for the related
Distribution Date have been used by the Servicer in discharge of its obligation
to make any such Monthly Advance. Any funds so applied shall be replaced by the
Servicer by deposit, in the manner set forth above, in the Custodial Account no
later than the Servicer Advance Date to the extent that funds in the Custodial
Account on such date are less than the amounts required to be distributed on the
related Distribution Date. The Servicer shall be entitled to be reimbursed from
the Custodial Account and the Certificate Account for all Monthly Advances of
its own funds made pursuant to this Section as provided in Section 3.09 and
4.01.
SECTION 5.02 ADVANCES FOR ATTORNEYS' FEES.
The Servicer shall make advances from time to time for attorneys' fees
and court costs incurred, or which reasonably can be expected to be incurred,
for the foreclosure of any Mortgage Loan or for any transaction in which the
Trustee for the benefit of the Certificateholders
-74-
is expected to receive a deed-in-lieu of foreclosure, unless the Servicer has
made a good faith determination that such advances would be Nonrecoverable
Advances. If the Servicer shall make a good faith determination that such
advances would not be so recoverable, the Servicer shall promptly deliver to the
Trustee a Certificate of a Servicing Officer setting forth the reasons for such
determination. The Servicer shall be entitled to reimbursement for any such
advance as provided in Section 3.09 hereof.
SECTION 5.03 NONRECOVERABLE ADVANCES.
The determination by the Servicer that it has made a Nonrecoverable
Advance shall be evidenced by a certificate of a Servicing Officer promptly
delivered to the Trustee setting forth the reasons for such determination.
Following the Trustee's receipt of such certificate, the Servicer shall be
entitled to reimbursement for such Nonrecoverable Advance as provided in Section
3.09 and 4.01 hereof.
SECTION 5.04 ADVANCE PROCEDURES.
(a) If, on any Determination Date, the Servicer determines to make a
Monthly Advance in accordance with Section 5.01, it shall make such Monthly
Advance on or before noon, New York time, on the Business Day prior to the
related Distribution Date (the "Servicer Advance Date"). The Servicer shall
notify the Trustee of the aggregate amount of Monthly Advances for a
Distribution Date on or before three Business Days prior to such Distribution
Date. Any such Monthly Advance shall be included with the distribution on the
related Distribution Date pursuant to Section 4.02.
(b) In the event that the Servicer fails to make a Monthly Advance
required to be made pursuant to Section 5.01 on or before the close of business,
on the Servicer Advance Date, the Trustee shall on or before 12 noon, New York
time on the next Business Day provide notice to the Servicer, by telephone and
by writing (which may be by telecopy) of such failure and the amount of such
failure and that continuance of such failure for a period of one Business Day
thereafter will be an Event of Default.
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth in
Exhibits A and B hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted
-75-
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.
Each of the Class A Certificates will be in fully-registered form only
in minimum denominations of $100,000 Certificate Principal Balance and integral
multiples of $1 in excess thereof. Each of the Class R and Class I-R
Certificates will be in fully-registered form only in minimum denominations of
20% percentage interest.
The Class I-A, Class B-1, Class B-2 and Class B-3 Certificates will be
in minimum denominations of $25,000 Certificate Principal Balance and integral
multiples of $1 in excess thereof. Each of the Class B-4, Class B-5 and Class
B-6 Certificates will be in minimum denominations of $250,000 Certificate
Principal Balance and integral multiples of $1 in excess thereof.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trust Fund by the Trustee by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trust Fund, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication executed by the Trustee by manual signature, and such certificate
of authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
(b) From time to time Washington Mutual, as the initial Holder of the
Class Y Certificate, may exchange such Holder's Class Y Certificates for
Subclasses of Class Y Certificates to be issued under this Agreement by
delivering a "Request for Exchange" substantially in the form attached hereto as
Exhibit K executed by an authorized officer, which Subclasses, in the aggregate,
will represent the REMIC regular interests corresponding to the Class Y
Certificates so surrendered for exchange. Any Subclass so issued shall bear a
numerical designation commencing with Class Y-1 and continuing sequentially
thereafter, and will evidence ownership of the uncertificated REMIC regular
interest or interests specified in writing by such initial Holder to the
Trustee. The Trustee may conclusively, without any independent verification,
rely on, and shall be protected in relying on, Washington Mutual's
determinations of the uncertificated REMIC interests corresponding to any
Subclass, the initial Certificate Principal Balance and the initial Pass-Through
Rate on a Subclass as set forth in such Request for Exchange and the Trustee
shall have no duty to determine if any uncertificated REMIC regular interests
designated on a Request for Exchange corresponds to a Subclass which has
previously been issued. The Class Y Distribution Amount for each subclass shall
be the portion of the Class Y Distribution Amount related to the Class Y
Mortgage Loans representing such subclass. Each Subclass so issued shall be
substantially in the form set forth in Exhibit K and shall, on original issue,
be executed and delivered by the Trustee to the Certificate Registrar for
authentication and delivery in accordance with Section 6.01(a). Every
Certificate presented or surrendered for exchange by the initial Holder shall
(if so required by the Trustee or the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer attached to such
Certificate and shall be completed to the satisfaction of the Trustee and the
Certificate Registrar duly executed by, the initial Holder thereof or his
attorney duly authorized in
-76-
writing. The Certificates of any Subclass of Class Y Certificates may be
transferred in whole, but not in part, in accordance with the provisions of
Section 6.02.
SECTION 6.02 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Trustee shall maintain, or cause to be maintained, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Trustee shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in like aggregate interest and of the
same Class.
(b) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of authorized denominations and the same
aggregate interest in the Trust Fund and of the same Class, upon surrender of
the Certificates to be exchanged at the office or agency of the Trustee in the
City of New York where Certificates may be surrendered for registration of
transfer or exchange. The Trustee will give prompt written notice to
Certificateholders of any change in the location of the any such office or
agency. The Trustee initially designates its offices, located at 00 Xxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, for such purpose. The Certificate
Register will be kept in Chicago, Illinois at the offices of the Trustee located
at the Corporate Trust Office and may be kept in an electronic form capable of
printing out a hard copy of the Certificate Register. Whenever any Certificates
are so surrendered for exchange, the Trustee shall execute, authenticate and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing.
(c) No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
(d) All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(e) No transfer of any Class A, Class B-4, Class B-5, Class B-6 or
Class R 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. In the
event that a transfer is to be made without registration or qualification, (i)
the Trustee shall require, in order to assure compliance with such laws, that
the Certificateholder's prospective transferee and the Certificateholder
desiring to effect the transfer each certify to the Trustee in writing in the
forms set forth in Exhibit F and Exhibit G, respectively, the facts surrounding
the transfer and (ii) the Depositor or the Trustee may require an Opinion of
Counsel reasonably satisfactory to the requesting party that such transfer may
be made without such registration or qualification, which Opinion of Counsel
shall not be required to be an expense of the Depositor or the Trustee.
Notwithstanding the foregoing, so long as the Class B-4, Class B-5 and Class B-6
Certificates are
-77-
Book-Entry Certificates, no such opinions or forms need to be delivered with
respect to any proposed transfer and any transferee thereof shall be deemed to
have represented to have represented by virtue of its purchase or holding such
Certificate (or interest therein) that it is "qualified institutional buyer" as
defined under Rule 144A, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A of the Securities
Act of 1933, as amended, and is aware that the proposed transferor intends to
rely on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A. Neither the Depositor nor the Trustee
is obligated to register or qualify any Class A, Class B-4, Class B-5, Class B-6
or Class I-R Certificates under the 1933 Act or any other securities law or to
take any action not otherwise required under this Agreement to permit the
transfer of such Certificate or interest without registration or qualification.
Any such Holder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee and the Depositor against any liability that may
result if the transfer is not so exempt, or is not made in accordance with
federal and state laws.
(f) No transfer of a Class A, Class R or Class I-R 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. Any transferee
of a Class B-4, Class B-5 or Class B-6 Certificate shall be deemed to have
represented by virtue of its purchase or holding of such Certificate (or
interest therein) that either (i) such transferee is not a is not an employee
benefit plan or other plan subject to the prohibited transaction provisions of
ERISA or Section 4975 of the Code, or any Person (including an investment
manager, a named fiduciary or a trustee of any such plan) who is using "plan
assets" of any such plan to effect such acquisition (each, a "Plan Investor") or
(ii) such transferee is (a) an insurance company, (b) the source of funds used
to purchase or hold such Certificate (or interest therein) is an "insurance
company general account" (as defined in U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (c) the conditions set forth in
Sections I and III of PTCE 95-60 have been satisfied (each entity that satisfies
this clause (ii), a "Complying Insurance Company"). Any transferee of a Class
B-1, Class B-2 or Class B-3 Certificate shall be deemed to have represented by
virtue of its purchase or holding of such Certificate (or interest therein) that
either (a) such transferee is not a is not a Plan Investor, (b) it has acquired
and is holding such Certificate in reliance on Prohibited Transaction Exemption
("PTE") 89-90, 54 Fed. Reg. 42597 (October 17, 1989), as amended by PTE 97-34,
62 Fed. Reg. 39021 (July 21, 1997), and PTE 2000-58, 65 Fed. Reg. 67765
(November 13, 2000) (the "Exemption"), and that it understands that there are
certain conditions to the availability of the Exemption including that such
Certificate must be rated, at the time of purchase, not lower that "BBB-" (or
its equivalent) by Standard & Poor's, "BBB-" (or its equivalent) by Fitch or
"Baa3" (or its equivalent) by Xxxxx'x or (c) such transferee is a Complying
Insurance Company. If any Class B-1, Class B-2 or Class B-3 Certificate (or any
interest therein) is acquired or held by any Person that does not satisfy the
conditions described in this paragraph (f), then the last preceding transferee
that either (i) is not a Plan Investor, (ii) with respect to the Class B-1,
Class B-2 of Class B-3 Certificates, acquired such Certificate in compliance
with the Exemption, or (iii) is a Complying Insurance Company shall be restored,
to the extent permitted by law, to all rights and obligations as Certificate
Owner thereof retroactive to the date of such Transfer of such Class B
Certificate. The Trustee shall be under no liability to any Person for making
any payments due on such Certificate to such preceding transferee. Any purported
Certificateholder whose acquisition or holding of any Class Certificate (or
interest therein) was effected in violation of such restrictions shall indemnify
and hold harmless the Trustee, the
-78-
Servicer, Washington Mutual, any Subservicer, any underwriter and the Trust Fund
from and against any and all liabilities, claims, costs or expenses incurred by
such parties as a result of such acquisition or holding.
(g) Additional restrictions on transfers of the Class R and Class I-R
Certificates to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership interest in
a Class R, Class I-R Certificate shall be deemed by the acceptance or
acquisition of such ownership interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee or its
designee under clause (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 R or Class I-R Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any ownership interest
in a Class R or Class I-R Certificate shall be other than a Disqualified
Organization and shall promptly notify the Trustee of any change or
impending change in its status as other than a Disqualified Organization.
(B) In connection with any proposed transfer of any
ownership interest in a Class R or Class I-R Certificate to a U.S. Person,
the Trustee shall require delivery to it, and shall not register the
transfer of a Class R or Class I-R Certificate until its receipt of (1) an
affidavit and agreement (a "Transferee Affidavit and Agreement" attached
hereto as Exhibit H) from the proposed transferee, in form and substance
satisfactory to the Servicer, representing and warranting, among other
things, that it is not a non-U.S. Person, that such transferee is other
than a Disqualified Organization, that it is not acquiring its ownership
interest in a Class R or Class I-R 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 R or Class I-R 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 I, from the Holder wishing to
transfer a Class R or Class I-R Certificate, in form and substance
satisfactory to the Servicer, representing and warranting, among other
things, that no purpose of the proposed transfer is to allow such Holder to
impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit
and Agreement by a proposed transferee under clause (B) above, if the
Trustee has actual knowledge that the proposed transferee is not other than
a Disqualified Organization, no transfer of an ownership interest in a
Class R or Class I-R Certificate to such proposed transferee shall be
effected.
(D) Each Person holding or acquiring any ownership interest
in a Class R or I-R Certificate agrees, by holding or acquiring such
ownership interest, (1) to require a Transferee Affidavit and Agreement
from the other Person to whom such Person attempts to transfer its
ownership interest and to provide a certificate to the Trustee in the
-79-
form attached hereto as Exhibit I, and (2) to obtain the express written
consent of the Servicer prior to any transfer of such ownership interest,
which consent may be withheld in the Servicer's sole discretion.
(ii) The Trustee shall register the transfer of any Class R or
Class I-R 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 I and all of such other documents as shall have been
reasonably required by the Trustee as a condition to such registration.
(iii) (A) If any Disqualified Organization shall become a Holder
of a Class R or Class I-R 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 R or Class I-R
Certificate. If any non-U.S. Person shall become a Holder of a Class R or Class
I-R 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 R Certificate. If a transfer of a Class R or Class
I-R 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 R or Class I-R
Certificate. The Trustee shall be under no liability to any Person for any
registration of transfer of a Class R or Class I-R Certificate that is in fact
not permitted by this Section 6.02(g) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action with respect to
such Holder under the provisions of this Agreement.
(B) If any purported transferee of a Class R or Class I-R
Certificate shall become a Holder of a Class R 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 R or Class I-R Certificate
as described in clause (iii)(A) above shall be invalid, illegal or
unenforceable, then the Servicer shall have the right, without notice to the
preceding Holder or any prior Holder of such Class R Certificate or Class I-R to
sell such Class R or Class I-R Certificate to a purchaser selected by the
Servicer on such terms as the Servicer may choose. Such purported transferee
shall promptly endorse and deliver a Class R or Class I-R Certificate in
accordance with the instructions of the Servicer. Such purchaser may be the
Servicer itself or any affiliate of the Servicer. The proceeds of such sale, net
of the commissions (which may include commissions payable to the Servicer or its
affiliates), expenses and taxes due, if any, shall be remitted by the Servicer
to such purported transferee. The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion of the Servicer, and
the Servicer shall not be liable to any Person having an ownership interest or a
purported ownership interest in a Class R or Class I-R Certificate as a result
of its exercise of such discretion.
(iv) The Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, all information reasonably
available to it that is necessary to compute any tax imposed (A) as a result of
the transfer of an ownership interest in a Class R or Class I-R 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
-80-
Sections 1.860E-2(a)(5) or 1.860D-1(b)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organizations described in Section 1381 of the
Code having as among its record holders at any time any Person who is not other
than a Disqualified Organization. Reasonable compensation for providing such
information may be required by the Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior to
this Section (v) may be modified, added to or eliminated by the Servicer,
provided that there shall have been delivered to the Trustee a certificate of
the Servicer stating that the Servicer has received an Opinion of Counsel, in
form and substance satisfactory to the Servicer, to the effect that such
modification, addition to or elimination of such provisions will not cause the
Trust REMIC, REMIC I or REMIC II to cease to qualify as a REMIC and will not
create a risk that (i) the Trust REMIC, REMIC I or REMIC II may be subject to an
entity-level tax caused by the transfer of a Class R 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 R or Class I-R Certificate to a Person which is not other
than a Disqualified Organization.
(vi) The following legend shall appear on each Class R and Class
I-R Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO
THE SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER
THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAXES 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 R
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
-81-
CERTIFICATE. EACH HOLDER OF THE CLASS R CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS
OF THIS PARAGRAPH.
(h) The Trustee shall have no liability to the Trust Fund arising from
a transfer of any such Certificate in reliance upon a certification, ruling or
Opinion of Counsel described in this Section 6.02; provided, however, that the
Trustee shall not register the transfer of any Class R Certificate if it has
actual knowledge that the proposed transferee does not meet the qualifications
of a permitted Holder of a Class R Certificate as set forth in this Section
6.02.
(i) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (u) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (v) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (w) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(x) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (y) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(z) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor, (y) the Depositor at its option advises the
Trustee in writing that it elects to terminate the book-entry system through the
Depository or (z) after the occurrence of an Event of Default, Certificate
Owners representing at least 51% of the Certificate Balance of the Book-Entry
Certificates together advise the Trustee and the Depository through the
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Certificate
Owners, the Trustee shall notify all Certificate Owners, through the Depository,
of the occurrence of any such event and of the availability of definitive,
fully-registered Certificates (the "Definitive Certificates") to Certificate
Owners requesting the same. Upon surrender to the Trustee of the related Class
of Certificates by the Depository, accompanied by the instructions from the
Depository for registration, the Trustee shall issue the Definitive
Certificates. None of the Originator, the Servicer, the Depositor or the Trustee
shall be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Depositor shall
-82-
provide the Trustee with an adequate inventory of certificates to facilitate the
issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder; provided that the Trustee shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
SECTION 6.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Servicer and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
interest in the Trust Fund. In connection with the issuance of any new
Certificate under this Section 6.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 6.03 shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 6.04 PERSONS DEEMED OWNERS.
Prior to due presentation of a Certificate for registration of
transfer, the Servicer, the Trustee, and any agent of the Servicer or the
Trustee may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and neither the
Servicer, the Trustee nor any agent of the Servicer or the Trustee shall be
affected by any notice to the contrary.
SECTION 6.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
(a) If three or more Certificateholders (i) request in writing from
the Trustee a list of the names and addresses of Certificateholders, (ii) state
that such Certificateholders desire to communicate with other Certificateholders
with respect to their rights under this Agreement or under the Certificates and
(iii) provide a copy of the communication which such Certificateholders propose
to transmit, then the Trustee shall, within ten Business Days after the receipt
of such request, afford such Certificateholders access during normal business
hours to a current list of the Certificateholders. The expense of providing any
such information requested by a Certificateholder shall be borne by the
Certificateholders requesting such information and shall not be borne by the
Trustee. Every Certificateholder, by receiving and holding a Certificate, agrees
that the Trustee shall not be held accountable by reason of the disclosure of
any such information as to the list of the Certificateholders hereunder,
regardless of the source from which such information was derived.
-83-
(b) The Servicer, so long as it is the Servicer hereunder, shall have
unlimited access to a list of the names and addresses of the Certificateholders
which list shall be provided by the Trustee promptly upon the request of the
Servicer.
SECTION 6.06 MAINTENANCE OF OFFICE OR AGENCY.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustee in respect of the Certificates and this Agreement may be
served. The Trustee initially designates the office described in Section 9.11 as
its office for such purpose. The Trustee will give prompt written notice to the
Certificateholders of any change in the location of any such office or agency.
ARTICLE VII
THE DEPOSITOR, SELLER AND THE SERVICER
SECTION 7.01 LIABILITIES OF THE DEPOSITOR, SELLER AND THE SERVICER.
The Depositor, Seller and the Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
It is understood and agreed that the obligation under this Agreement
of the Seller or the Servicer to repurchase or substitute any Mortgage Loan as
to which any breach of representation or warranty made in Section 2.01, 2.02,
2.03 or 2.04 of this Agreement or in Section 2 of the Mortgage Loan Purchase
Agreement has occurred and is continuing shall constitute the sole and exclusive
remedy respecting such breach available to the Depositor, the Certificateholders
or the Trustee on their behalf so long as the Seller repurchases or substitutes
any such Mortgage Loan and such Certificateholders shall not be entitled to any
consequential damages.
Without limiting the effect of the preceding paragraph, the Servicer
shall defend and indemnify the Trust Fund, the Trustee, the Depositor, the
Certificate Registrar, the Seller and the Certificateholders against any and all
costs, expenses, losses, damages, claims or liabilities, including reasonable
fees and expenses of counsel and expenses of litigation, arising from third
party claims or actions (including penalties or fees imposed by any governmental
or regulatory body or agency) in respect of any breach of the Servicer's
covenants, representations or warranties set forth herein or in respect of any
action taken or omitted by the Servicer with respect to any Mortgage Loan
constituting a failure by the Servicer to perform its obligations under this
Agreement. This indemnity shall survive any Event of Default (but a Servicer's
obligations under this Section 7.01 shall not relate to any actions of any
predecessor or subsequent Servicer after an Event of Default) and any payment of
the amount owing under, or any repurchase by the Servicer of, any such Mortgage
Loan.
Without limiting the effect of the second preceding paragraph, the
Seller shall defend and indemnify the Trust Fund, the Trustee, the Depositor,
the Certificate Registrar, the Servicer and the Certificateholders against any
and all costs, expenses, losses, damages, claims or liabilities, including
reasonable fees and expenses of counsel and expenses of litigation, arising from
third party
-84-
claims or actions (including penalties or fees imposed by any governmental or
regulatory body or agency) in respect of any breach of the Seller's covenants,
representations or warranties set forth herein or in respect of any action taken
or omitted by the Seller with respect to any Mortgage Loan constituting a
failure by the Seller to perform its obligations under this Agreement. This
indemnity shall survive any payment of the amount owing under, or any repurchase
by the Seller of, any such Mortgage Loan.
Any amounts received by the Trustee from the Seller or Servicer on
behalf of the Trust Fund pursuant to this Article VII shall be deposited in the
Certificate Account and shall be distributed as part of the Available
Distribution Amount. If either the Seller or the Servicer has made any indemnity
payments to the Trustee pursuant to this Article VII and the Trustee thereafter
collects any of such amounts from others, the Trustee will repay such amounts
collected to the Seller or Servicer, as applicable, together with any interest
collected thereon.
SECTION 7.02 MERGER OR CONSOLIDATION OF THE DEPOSITOR, THE SELLER OR THE
SERVICER.
Subject to the next succeeding paragraph, the Depositor, the Seller
and the 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 of the Seller, the Servicer or the Depositor may merge or
consolidate with any Person, and any Person into which the Seller, the Servicer
or the Depositor may be merged or consolidated, or any Person resulting from any
merger or consolidation to which the Seller or the Servicer shall be a party, or
any Person succeeding to the business of the Seller, Servicer or the Depositor,
shall be the successor of the Seller, the Servicer or the Depositor, as the case
may be, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; PROVIDED, HOWEVER, that the successor or surviving Person to
the Servicer shall be qualified to sell mortgage loans to, and to service
mortgage loans on behalf of, Xxxxxx Xxx or Freddie Mac.
Notwithstanding anything else in this Section 7.02 or in Section 7.04
hereof to the contrary, the Servicer may assign its rights and delegate its
duties and obligations under this Agreement (except for the obligation of the
Servicer or Seller to effectuate repurchases or substitutions of Mortgage Loans
hereunder, including pursuant to Section 2.01, 2.02 or 2.04 hereof, which shall
remain with Washington Mutual hereunder); PROVIDED, HOWEVER, that the Servicer
gives the Depositor and the Trustee notice of such assignment; and PROVIDED
FURTHER, that such purchaser or transferee accepting such assignment and
delegation shall be an institution that is a Xxxxxx Xxx and Freddie Mac approved
seller/servicer in good standing, which has a net worth of at least $15,000,000,
and which is willing to service the Mortgage Loans and executes and delivers to
the Depositor and the Trustee an agreement accepting such delegation and
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with like
effect as if originally named as a party to this Agreement. In the case of any
such assignment and delegation, the Servicer shall be released from its
obligations under this Agreement (except as provided above), except that the
Servicer shall remain liable for all liabilities
-85-
and obligations incurred by it as Servicer hereunder prior to the satisfaction
of the conditions to such assignment and delegation set forth in the preceding
sentence.
SECTION 7.03 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE SERVICER AND
OTHERS.
Neither the Depositor nor the Servicer nor any of the directors,
officers, employees or agents of the Depositor or the 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 or the Servicer against any breach of representations or warranties
made by it herein or protect the Depositor or the Servicer or any such person
from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Depositor, the
Servicer and any director, officer, employee or agent of the Depositor or the
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 Servicer and any director, officer, employee or agent of the
Depositor or the 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 negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither the Depositor nor the
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 either the Depositor or the Servicer may in its discretion
undertake any such action that it may deem necessary or desirable in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustee and the Certificateholders hereunder.
SECTION 7.04 SERVICER NOT TO RESIGN.
The Servicer shall not resign from the obligations and duties imposed
upon it hereunder except upon determination that such obligations and duties
hereunder are no longer permissible under applicable law or except in connection
with a permitted assignment pursuant to Section 7.02. Any such determination
that the Servicer's obligations are no longer permissible shall be evidenced by
an Opinion of Counsel to such effect delivered to the Trustee. The Servicer
shall give notice of any proposed resignation to the Trustee, the
Certificateholders and, so long as any Class I-A or Class B Certificate is
outstanding, the Rating Agencies. No such resignation by the Servicer shall
become effective until the Trustee or a successor servicer shall have assumed
the Servicer's responsibilities and obligations in accordance with Section 8.02
hereof or shall affect any obligation of the Seller hereunder.
SECTION 7.05 ERRORS AND OMISSIONS INSURANCE; FIDELITY BONDS.
The Servicer shall, for so long as it acts as servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of insurance
covering errors and omissions in the performance of its obligations as servicer
hereunder, and (b) a fidelity bond in respect of its officers, employees and
agents. Each such policy or policies and bond shall, together, comply with the
requirements from time to time of Xxxxxx Xxx or Freddie Mac for persons
performing servicing for mortgage loans purchased by Xxxxxx Xxx or Freddie Mac.
In the event that any such policy or bond
-86-
ceases to be in effect, the Servicer shall obtain a comparable replacement
policy or bond from an insurer or issuer, meeting the requirements set forth
above as of the date of such replacement.
SECTION 7.06 SELLER AND SERVICER MAY OWN CERTIFICATES.
Each of the Seller and the 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 Seller or the Servicer, as the case may be.
ARTICLE VIII
DEFAULT
SECTION 8.01 EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) any failure by the Servicer to remit to the Trustee any payment
other than a Monthly Advance required to be made by the Servicer under the terms
of this Agreement, which failure shall continue unremedied for a period of three
Business Days after the date upon which written notice of such failure shall
have been given to the Servicer by the Trustee or the Depositor or to the
Servicer and the Trustee by the Holders of Certificates having not less than 25%
of the Voting Rights evidenced by the Certificates; or
(b) any failure by the Servicer to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement (except as set forth in (c) below) which failure (i)
materially affects the rights of the Certificateholders and (ii) shall continue
unremedied for a period of 60 days after the date on which written notice of
such failure shall have been given to the Servicer by the Trustee or the
Depositor, or to the Servicer and the Trustee by the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the Certificates;
or
(c) if a representation or warranty set forth in Section 2.03 hereof
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, or the affected Mortgage
Loan shall not have been substituted for or repurchased, within 60 days (or, is
such breach is not capable of being cured within 60 days and is not subject to
the remedies set forth in Section 2.04 and provided that the Servicer believes
in good faith that such breach can be cured and is diligently pursuing the cure
thereof, within 120 days) after the date on which written notice thereof shall
have been given to the Servicer and Seller by the Trustee for the benefit of the
Certificateholders or by the Depositor; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for
-87-
the winding-up or liquidation of its affairs, shall have been entered against
the Servicer and such decree or order shall have remained in force undischarged
or unstayed for a period of 60 days; or
(e) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to the Servicer or
all or substantially all of the property of the Servicer; or
(f) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of, or commence
a voluntary case under, any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(g) any failure of the Servicer to make any Monthly Advance in the
manner and at the time required to be made from its own funds pursuant to this
Agreement and after receipt of notice from the Trustee pursuant to Section 5.04,
which failure continues unremedied after the close of business on the Business
Day immediately preceding the Distribution Date.
If an Event of Default due to the actions or inaction of the Servicer
described in clauses (a) through (f) of this Section shall occur, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Trustee shall, if so directed by the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the Certificates,
by notice in writing to the Servicer (and so long as the Class I-A and the Class
B Certificates are outstanding with a copy to the Rating Agencies), terminate
all of the rights and obligations of the Servicer under this Agreement (other
than rights to reimbursement for Monthly Advances or other advances previously
made, as provided in Section 3.09 or 4.01).
If an Event of Default described in clause (g) shall occur, the
Trustee shall, prior to the next Distribution Date, terminate the rights and
obligations of the Servicer hereunder (other than rights to reimbursement for
Monthly Advances or other advances previously made, as provided in Section 3.09
or 4.01) and succeed to the rights and obligations of the Servicer hereunder
pursuant to Section 8.02, including the obligation to make Monthly Advances on
such Distribution Date pursuant to the terms hereof.
SECTION 8.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time the Servicer receives a notice of termination
pursuant to Section 8.01 hereof or resigns pursuant to Section 7.04 hereof,
subject to the provisions of Section 3.06 hereof, the Trustee shall be the
successor in all respects to the Servicer in its capacity as servicer under this
Agreement and with respect to the transactions set forth or provided for herein
and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof,
provided that neither the Trustee nor any other successor to the Servicer
pursuant to this Section 8.02 shall be deemed to have made any representation or
warranty made by the Servicer, shall be obligated to effect any repurchase or
substitute of any Mortgage Loan, or shall have any responsibility for an act or
omission of any predecessor Servicer. As compensation therefor, the Trustee
shall be entitled to all funds relating to the Mortgage Loans that the Servicer
would have been entitled to charge to the related Custodial Account if the
Servicer had continued to act hereunder (except that the terminated Servicer
shall retain the right to be reimbursed for advances (including, without
limitation, Monthly Advances)
-88-
theretofore made by the Servicer with respect to which it would be entitled to
be reimbursed if it had not been so terminated as Servicer). Notwithstanding the
foregoing, if the Trustee has become the successor to the Servicer in accordance
with this Section 8.02, the Trustee may, if it shall be unwilling to so act, or
shall, if it is unable to so act (exclusive of the obligations with respect to
Monthly Advances), 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 Servicer hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of the Servicer. Pending appointment
of a successor to the Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall act in such capacity as provided herein.
In connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; PROVIDED, HOWEVER, that no such
compensation shall be in excess of that permitted the Servicer hereunder. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
The Servicer that has been terminated shall, at the request of the
Trustee but at the expense of such Servicer, deliver to the assuming party all
documents and records relating to each Sub-Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
each Sub-Servicing Agreement to the assuming party.
The Servicer shall cooperate with the Trustee and any successor
servicer in effecting the termination of the Servicer's responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or thereafter received with respect to
the Mortgage Loans and the Servicer Mortgage Files.
Neither the Trustee nor any other successor servicer shall be deemed
to be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (a) the
failure of the 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 Servicer Mortgage Files to the Trustee as required by this
Agreement, or (b) restrictions imposed by any regulatory authority having
jurisdiction over the Servicer.
Any successor to the Servicer as servicer shall during the term of its
service as servicer maintain in force the policy or policies that the Servicer
is required to maintain pursuant to Section 7.05 hereof. No termination of the
Servicer shall have any affect on the obligations of the Seller hereunder.
SECTION 8.03 NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination or appointment of a successor to the
Servicer, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register and, so long as the Class I-A and the Class B Certificates are
outstanding, to the Rating Agencies.
-89-
(b) Within 2 Business Days after its notice of the occurrence of any
Event of Default, the Trustee shall transmit by mail to all Certificateholders
and, so long as the Class I-A and the Class B Certificates are outstanding, to
the Rating Agencies notice of each such Event of Default hereunder known to the
Trustee, unless such Event of Default shall have been cured or waived.
SECTION 8.04 WAIVER OF EVENTS OF DEFAULT.
The Holders representing at least 66-2/3% 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 (a) or (g) of Section 8.01 may be waived only by Holders of
Certificates of 66-2/3 of the Class affected by such default or Event of Default
and (b) no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 11.01(b)(i), (ii) or (iii). Upon
any such waiver of a default or Event of Default by the Holders representing the
requisite percentage of Voting Rights of Certificates affected by such default
or Event of Default, such default or Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 DUTIES OF TRUSTEE.
The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default that may have occurred, undertakes
with respect to the Trust Fund to perform such duties and only such duties as
are specifically set forth in this Agreement. In case an Event of Default has
occurred and remains uncured and not waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. 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.
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, and after the
curing or waiver of all such Events of Default that may have occurred, the
duties and obligations of the Trustee shall
-90-
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 or acted in bad faith or with
willful misfeasance;
(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 the direction of Holders of Certificates evidencing not less than 25% of
the Voting Rights allocated to each Class of Certificates relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(d) no provision of this Agreement shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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 the Servicer, the Depositor or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided, however,
that the Trustee shall use its best efforts to remit to the Servicer, upon
receipt, 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.
-91-
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, Officers' Certificate,
certificate of Servicing Officers, auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee may consult with counsel 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 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 (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 waiving 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 not
less than 25% of the Voting Rights allocated to each Class of Certificates;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or liability
as a condition to taking any such action; the reasonable expense of every such
investigation shall be paid by the Servicer in the event that such investigation
relates to an Event of Default by the Servicer, if an Event of Default by the
Servicer shall have occurred and is continuing, and otherwise by the
Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
affiliates, agents or attorneys;
-92-
(vii) the Trustee shall not be required to expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is not
assured to it; and
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement.
(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 Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement, the Certificates or of any
Mortgage Loan or related document. The Trustee shall not be accountable for the
use or application by the Depositor, the Seller or the Servicer of any funds
paid to the Depositor, the Seller or the Servicer in respect of the Mortgage
Loans or deposited in or withdrawn from the Certificate Account by the
Depositor, the Seller or the Servicer.
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 with the same rights as it would have if it were not the Trustee.
SECTION 9.05 TRUSTEE'S COMPENSATION AND EXPENSES.
As compensation for its services hereunder, the Trustee shall be
entitled to the Trustee Float. In the event that the Servicer fails to remit
amounts that it is required to remit to the Certificate Account hereunder on the
Business Day prior to each Distribution Date hereunder, it shall pay to the
Trustee, from its own funds, an amount equal to the Trustee Float with respect
to such Distribution Date, as certified in writing by the Trustee to the
Servicer and agreed to by the Servicer. The Servicer shall also pay, from its
own funds, the Trustee any additional amounts as may be agreed upon between the
Trustee and the Servicer from time to time. Any payment hereunder made by the
Servicer to the Trustee, other than any amount to be paid from the Certificate
Account pursuant to this Section 9.05, shall be paid from the Servicer's own
funds, without reimbursement from the Trust Fund therefor.
The Trustee and any director, officer, employee or agent of the
Trustee shall be indemnified by the Servicer and held harmless against any loss,
liability or expense (a) incurred in connection with any legal action relating
to this Agreement or the Certificates, or the performance of any of the
Trustee's duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Trustee's duties hereunder or by reason of reckless disregard of the
Trustee's obligations and duties hereunder and
-93-
(b) resulting from the exercise of any power of attorney granted by the Trustee
in accordance with this Agreement. Such indemnity shall survive the termination
of this Agreement or the resignation or removal of the Trustee hereunder.
SECTION 9.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee hereunder shall at all times be a corporation or
association having its principal office in a state and city acceptable to the
Depositor and the Servicer and organized and doing business under the laws of
such state or the United States of America, authorized under such laws to
exercise corporate trust powers, having ratings on its long-term debt
obligations at the time of such appointment in at least the third highest rating
category by both Moody's and Xxxx and Xxxxxx or such lower ratings as will not
cause Moody's or Xxxx and Xxxxxx to lower their then-current ratings of the
Class A Certificates, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 9.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 9.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.07 hereof.
SECTION 9.07 RESIGNATION AND REMOVAL OF TRUSTEE.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (a) giving written notice of resignation to the Depositor, the
Seller and the Servicer and by mailing notice of resignation by first class
mail, postage prepaid, to the Certificateholders at their addresses appearing on
the Certificate Register and, so long as the Class I-A and the Class B
Certificates are outstanding, to the Rating Agencies, not less than 60 days
before the date specified in such notice when, subject to Section 9.08, such
resignation is to take effect, and (b) acceptance by a successor trustee in
accordance with Section 9.08 meeting the qualifications set forth in Section
9.06. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 hereof and shall fail to resign after
written request thereto by the Servicer, 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, with the consent of the Servicer, may remove the Trustee and, with
the consent of the Servicer, 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 and, so long as the Class I-A and the Class B
Certificates are outstanding, to the Rating Agencies. 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.
-94-
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.
If the Trustee resigns pursuant to Section 9.07, the Depositor, with
the consent of the Servicer, shall appoint a successor trustee that satisfies
the requirements of Section 9.06. Any successor trustee appointed as provided in
Section 9.07 hereof shall execute, acknowledge and deliver to the Depositor and
the Servicer 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 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 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 Servicer shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Servicer fails to mail such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Depositor.
SECTION 9.09 MERGER OR CONSOLIDATION OF TRUSTEE.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any Person succeeding
to the business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such Person shall be eligible under the provisions of Section 9.06
hereof without the execution or filing of any paper or further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 9.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicer 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 Servicer and the
Trustee may consider necessary
-95-
or desirable. If the Servicer shall not have joined in such appointment within
fifteen days after the receipt by it of a request to do so, or in the case an
Event of Default shall have occurred and be continuing, the Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 9.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 9.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for any obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed by the Trustee (whether as Trustee
hereunder or as successor to the Servicer), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Trustee;
(b) no trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder; and
(c) the Servicer 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
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
-96-
SECTION 9.11 OFFICE OF THE TRUSTEE.
The office of the Trustee for purposes of receipt of notices and
demands is the Corporate Trust Office.
SECTION 9.12 TAX RETURNS.
The Servicer, upon request, will furnish the Trustee with all such
information in the possession of the Servicer as may be reasonably required in
connection with the preparation by the Trustee of all tax and information
returns of the Trust Fund, and the Trustee shall sign such returns. The Servicer
shall indemnify the Trustee for all reasonable costs, including legal fees,
related to errors in such tax returns due to errors in information provided by
the Servicer.
ARTICLE X
TERMINATION
SECTION 10.01 TERMINATION UPON LIQUIDATION OR REPURCHASE OF ALL MORTGAGE
LOANS.
(a) The obligations and responsibilities of the Servicer, the Seller,
the Depositor and the Trustee created hereby with respect to the Trust Fund
created hereby shall terminate upon the earlier of:
(i) the repurchase by the Servicer at its election, of all
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, which repurchase right the Servicer may exercise at
its sole and exclusive election as of any Distribution Date (such applicable
Distribution Date being herein referred to as the "Optional Termination Date")
on or after the date on which the aggregate Principal Balance of the Mortgage
Loans at the time of the repurchase is less than or equal to 10% of the
aggregate Principal Balance of the Mortgage Loans as of the Cut-off Date.
Notwithstanding the foregoing, the Servicer, will not exercise any such right on
any Optional Termination Date unless the aggregate Principal Balance of the
Class AR5 Mortgage Loans at the time of repurchase is less than or equal to
1.00% of the aggregate Principal Balance of the Class AR5 Mortgage Loans as of
the Class AR5 Cut-off Date;
(ii) the later of (i) twelve months after the maturity of the
last Mortgage Loan remaining in the Trust Fund, (ii) the liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (iii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement; and
(iii) the date upon which all Certificateholders vote to
terminate the Trust REMIC, REMIC I and REMIC II.
In no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the United States to Great Britain,
living on the date of execution of this Agreement.
-97-
The Mortgage Loan Repurchase Price for any such Optional Termination
of the Trust Fund shall be equal to the aggregate Principal Balance of the
Mortgage Loans as of the date of repurchase, together with accrued and unpaid
interest thereon from the date to which such interest was paid or advanced at
the sum of the applicable Net Mortgage Rate or Class AR5 Net Mortgage Rate, as
applicable, with respect to each Mortgage Loan through the last day of the month
of such repurchase, plus any sums on account of such Mortgage Loan that have
been advanced by the Servicer and are reimbursable to the Servicer hereunder
(including the Principal Balance of each Mortgage Loan that was secured by any
REO Property); PROVIDED, HOWEVER, that if the Servicer shall so choose, the
Servicer may remit the Mortgage Loan Repurchase Price net of advances that would
otherwise be reimbursable to the Servicer and the Servicer would have no further
entitlement to reimbursement for such advances. The Trustee shall give notice to
the Rating Agencies of the Servicer's election to purchase the Class AR5
Mortgage Loans pursuant to this Section 10.01.
(b) The Servicer shall also have the right, on any Distribution Date
on which the aggregate Principal Balance of the Class AR5 Mortgage Loans is less
than or equal to 1.00% of the aggregate Principal Balance of the Class AR5
Mortgage Loans as of the Class AR5 Cut-off Date to purchase the assets of REMIC
I at a price equal to the aggregate Principal Balance of the Class AR5 Mortgage
Loans as of the date of repurchase, together with accrued and unpaid interest
thereon from the date to which such interest was paid or advanced at the sum of
the applicable Class AR5 Net Mortgage Rate with respect to each Mortgage Loan
through the last day of the month of such repurchase, plus any sums on account
of such Class AR5 Mortgage Loan that have been advanced by the Servicer and are
reimbursable to the Servicer hereunder or, in the case of any REO Property, the
fair market value of the REO Property, if less; PROVIDED, HOWEVER, that if the
Servicer shall so choose, the Servicer may remit the Mortgage Loan Repurchase
Price net of advances that would otherwise be reimbursable to the Servicer and
the Servicer would have no further entitlement to reimbursement for such
advances (a "Class AR5 Optional Termination Date").
SECTION 10.02 PROCEDURE UPON OPTIONAL OR OTHER FINAL TERMINATION.
(a) In case of any Optional Termination or Class AR5 Optional
Termination, pursuant to Section 10.01, the Servicer shall, at least twenty days
prior to the date notice is to be mailed to the affected Certificateholders
notify the Trustee of such Optional Termination Date or Class AR5 Optional
Termination Date, as applicable.
(b) Any repurchase of the Mortgage Loans or the REMIC I Regular
Interests held as assets of REMIC II by the Servicer shall be made on an
Optional Termination Date or Class AR5 Optional Termination Date, as applicable,
by deposit of the applicable repurchase price into the Certificate Account, as
applicable, before the Distribution Date on which such repurchase is effected.
Upon receipt by the Trustee of an Officers' Certificate of the Servicer
certifying as to the deposit of such repurchase price into the Certificate
Account, the Servicer shall prepare and the Trustee and each co-trustee and
separate trustee, if any, then acting as such under this Agreement, shall, upon
request and at the expense of the Servicer execute and deliver all such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary, to vest title in the Servicer in the Mortgage Loans or assets of
REMIC I so repurchased and shall transfer or deliver to the Servicer the
repurchased Mortgage Loans or assets. Any distributions on the Mortgage Loans or
assets of REMIC I received by the Trustee subsequent to (or with respect to any
period subsequent to) the Optional Termination Date or Class AR5 Optional
Termination Date shall be promptly remitted by it to the Servicer.
-98-
(c) Notice of the Distribution Date on which the Servicer anticipates
that the final distribution shall be made (whether upon Optional Termination or
otherwise) or notice of the Class AR5 Optional Termination Date, shall be given
promptly by the Servicer to the Trustee and by the Trustee by first class mail
to Holders of the affected Certificates. Such notice shall be mailed no earlier
than the 15th day and not later than the 10th day preceding the Optional
Termination Date, Class AR5 Optional Termination Date or date of final
distribution, as the case may be. Such notice shall specify (i) the Distribution
Date upon which final distribution on the affected Certificates will be made
upon presentation and surrender of such Certificates at the office or agency
therein designated, (ii) the amount of such final distribution and (iii) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, such distribution being made only upon presentation and surrender of
such Certificates at the office or agency maintained for such purposes (the
address of which shall be set forth in such notice).
(d) In the event that any Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining such Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain subject to
the Trust Fund.
SECTION 10.03 ADDITIONAL TERMINATION REQUIREMENTS.
(a) In the event the Servicer exercises its purchase option pursuant
to Section 10.01 or the Certificateholders vote to terminate the Trust REMIC,
REMIC I and REMIC II pursuant to Section 10.01(a)(iii), the Trust REMIC shall be
terminated in accordance with the following additional requirements, unless the
Trustee has received an Opinion of Counsel to the effect that the failure of the
Trust REMIC, REMIC I and REMIC II to comply with the requirements of this
Section will not (i) result in the imposition of taxes on a "prohibited
transaction" of the Trust REMIC, REMIC I and REMIC II, as described in Section
860F of the Code, or (ii) cause the Trust REMIC, REMIC I and REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(A) within 90 days prior to the final Distribution Date set
forth in the notice given by the Servicer under Section 10.02, the Holder
of the Class R and Class I-R Certificates shall adopt a plan of complete
liquidation of the Trust REMIC, REMIC I and REMIC II and specify the first
day of the applicable 90-day liquidation period in a statement attached to
the Trust Fund's final tax return pursuant to Treasury Regulations Section
1.860F-1, and satisfy (or cause to be satisfied) all of the requirements of
a qualified liquidation under the REMIC Provisions; and
(B) at or after the time of adoption of any such plan of
complete liquidation for the Trust REMIC, REMIC I and REMIC II at or prior
to the final Distribution Date, the Trustee shall sell all of the assets of
the Trust Fund to the Servicer 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
-99-
Trustee shall not sell any of the assets of the Trust Fund prior to the
close of that calendar quarter.
(b) By its acceptance of a Class R Certificate, the Holders thereof
hereby agree to adopt such a plan of complete liquidation and to take such other
action in connection therewith as may be reasonably required to liquidate and
otherwise terminate the Trust REMIC, REMIC I and REMIC II.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 AMENDMENT.
(a) This Agreement may be amended from time to time by the Depositor,
the Servicer, the Seller and the Trustee without the consent of any of the
Certificateholders,
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein that may be
inconsistent with any other provisions herein,
(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 REMIC, REMIC I or REMIC II 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 REMIC,
REMIC I or REMIC II as a REMIC or adversely affect in any material respect the
interests of any Certificateholder,
(iv) 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, or
(v) To add appropriate restrictions and legends to any of the
Class A Certificates.
(b) This Agreement may be amended from time to time by the Depositor,
the Servicer, the Seller 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 each Class of Certificates affected by such amendment, 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) reduce the aforesaid percentages of Voting Rights, the
holders
-100-
of which are required to consent to any such amendment without the consent of
100% of the Holders of Certificates of the Class affected thereby, (iii) change
the percentage of the Principal Balance of the Mortgage Loans specified in
Section 10.01(a)(i) relating to optional termination of the Trust Fund without
the consent of 100% of the Holders of Certificates, (iv) modify the provisions
of this Section 11.01 amendment without the consent of 100% of the Holders of
Certificates, or (v) terminate this Agreement or the Trust Fund created
hereunder other than as provided in Article X hereof without the consent of 100%
of the Holders of Certificates. It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(c) Promptly after the execution of any amendment to this Agreement,
the Trustee shall furnish written notification of the substance of such
amendment to each Certificateholder and, if any Class I-A or Class B Certificate
is outstanding, to the Rating Agencies.
(d) Prior to the execution of any amendment to this Agreement, the
Trustee shall receive an Opinion of Counsel that any such amendment is
authorized by and permitted hereunder and that it will not cause an Adverse
REMIC Event.
SECTION 11.02 RECORDATION OF AGREEMENT; COUNTERPARTS.
(a) This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. Such recordation,
if any, shall be effected by the Servicer at its expense on direction of the
Trustee, but only upon direction of the Trustee accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders of the Trust Fund.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.04 INTENTION OF PARTIES.
(a) It is the express intent of the Depositor, the Seller, the
Servicer and the Trustee that the conveyance by the Seller to the Depositor
pursuant to the Mortgage Loan Purchase Agreement and the conveyance by the
Depositor to the Trustee and by the Seller to the Trustee as
-101-
provided for in Section 2.01 of each of the Seller's and Xxxxxxxxx's right,
title and interest in and to the Mortgage Loans be, and be construed as, an
absolute sale and assignment by the Seller 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 either conveyance be deemed to be a pledge of
the Mortgage by the Seller 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 the Seller or the Depositor, or if for any
reason the Mortgage Loan Purchase Agreement or this Agreement is held or deemed
to create a security interest in the Mortgage Loans, then it is intended that
(i) this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (ii) the
conveyances provided for in Section 2.01 shall be deemed to be a grant by the
Seller 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 Seller's 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, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting of the
Trust Fund, 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 Mortgage Files, and including any Replacement
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 Custodial 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 or control 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 possession or
control by the secured party, or possession or control by a purchaser, for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Sections 9-305 or 9-115 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, securities
intermediaries, bailees or agents of, or persons holding for, the Trustee, as
applicable, 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, (ii)
all other obligations of the Seller and the Depositor under this Agreement and
the Mortgage Loan Purchase Agreement and (iii) the right of the
Certificateholders to the Mortgage Loans.
(b) The Seller and the Depositor, and, at the Depositor's direction,
the Servicer and the Trustee, shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans
and the other Trust Fund property described above, such security interest would
be deemed to be a perfected security interest of first priority as applicable.
The Servicer shall file, at its expense, all filings necessary to maintain the
effectiveness of any original filings necessary under the
-102-
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, (ii) such other statements as may be
occasioned by any transfer of any interest of the Servicer or the Depositor in
any Mortgage Loan; and filings necessary as a result in any change in the UCC.
SECTION 11.05 NOTICES.
In addition to other notices provided under this Agreement, so long as
any Class I-A or Class B Certificate is outstanding, the Trustee shall notify
the Rating Agencies in writing: (a) of any substitution of any Mortgage Loan;
(b) of the final payment of any amounts owing to a Class of Certificates; (c)
any Event of Default under this Agreement; and (d) in the event any Mortgage
Loan is repurchased in accordance with this Agreement.
All directions, demands and notices hereunder shall be in writing
(except where also required to be given telephonically) and shall be deemed to
have been duly given when received (i) in the case of the Depositor, Credit
Suisse First Boston Mortgage Securities Corp., 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: President; (ii) in the case of the Trustee, Bank One,
National Association, 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx
00000-0126, Attention: Global trust Services or such other address as may
hereafter be furnished to the Depositor, the Seller and the Servicer in writing
by the Trustee; (iv) in the case of the Seller or Servicer, Washington Mutual
Bank, FA, 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X.
Xxxxxxx and a copy to 00000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx (with a copy to 00000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxx X. Xxxxxxx, General Counsel); and (iv) in the
case of the Rating Agencies, Xxxxx'x Investors Service, 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Mortgage-Backed Securities Rating Group and
Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Notices given by telecopy shall be deemed received when request is confirmed by
telephone. Notices of default are also required to be given by registered mail.
Notices to Certificateholders shall be deemed given when mailed, first class
postage prepaid.
SECTION 11.06 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
Fund, or otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations
-103-
of the parties hereto, nor shall anything herein set forth or contained in the
terms of the Certificates be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as provided herein, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby shall have given its written consent, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
each Certificateholder with every other Certificateholder and the Trustee, that
no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 11.07, each
and every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
SECTION 11.08 CERTIFICATES NONASSESSABLE AND FULLY PAID.
It is the intention of the Depositor that Certificateholders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
-104-
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized all as of the 6th day of December, 2001.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
WASHINGTON MUTUAL BANK, FA,
as Seller and Servicer
By:
-----------------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Trustee
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title:
STATE OF ILLINOIS )
: ss.:
COUNTY OF )
---------------
On this th day of December, 2001, before me, personally appeared
---
, known to me to be a of Bank
------------------------- -------------------------
One, National Association, the national association that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said national association, and acknowledged to me that such national 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.
----------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the th day of December 2001, before me, personally appeared
----
Xxxx X. Xxxxxxx, 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.
----------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF WASHINGTON )
: ss.:
COUNTY OF )
-------------
On the th day of December, 2001, before me, a Notary Public in and
----
for said State, personally appeared Xxxxxxx Xxxxxx, known to me to be a the
of Washington Mutual Bank, FA, the federally chartered
-------------------------
savings association, that executed the within instrument and also known to me to
be the person who executed it on behalf of said bank, and acknowledged to me
that such bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------------------
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
FORM OF CLASS A CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE.
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 CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., WASHINGTON MUTUAL BANK, FA OR THE
TRUSTEE REFERRED TO BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS
NOT GUARANTEED OR INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
A-1
WASHINGTON MUTUAL BANK, FA
MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 1999-WM4, CLASS A-[1][2][3[4][5][6[7][8][9]
Evidencing an undivided interest in a Trust Fund whose assets consist of a pool
of fixed-rate and adjustable-rate, mortgage loans secured by first liens on one-
to- four-family residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP $ Initial Aggregate Class A-[1] [2]
-------- ------- [3] [4] [5][6][7][8] [9] Certificate
Principal Balance
Certificate No. A-[1], [2], $ Initial Certificate Principal
[3],[4][5][6][7][8][9] ------- Balance Of This Certificate
---
First Distribution Date: Scheduled Final Distribution
January 19, 2000 Date: [ ]
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a beneficial
interest in the Trust Fund referred to below consisting of a pool of fixed-rate
and adjustable-rate mortgage loans secured by first liens on one- to-
four-family residential real properties (the "Mortgage Loans") and certain other
property held in trust transferred to the Trust Fund by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"), and certain related
property. The Trust Fund was created pursuant to the Pooling and Servicing
Agreement, dated as of December 1, 1999 (the "Agreement"), among the Depositor,
Bank One, National Association, as trustee (the "Trustee", which term includes
any successor entity under the Agreement) and Washington Mutual Bank, FA., as
seller and servicer, a summary of certain of the pertinent provisions of which
is set forth herein. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series
1999-WM4 (the "Certificates"), which is comprised of the following ten Classes:
Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7,
Class A-8, Class A-9 and Class R. Reference is hereby made to the Agreement for
a statement of the respective rights thereunder of the Depositor and the Trustee
and the Holders of the Certificates and the terms upon which the Certificates
are authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Mortgage
Loans and all distributions thereon payable after the Cut-off Date, net of
certain amounts in accordance with the provisions of the Agreement, (ii) REO
Property, (iii) the Certificate Account and the Custodial Account and all
amounts deposited therein pursuant to the applicable provisions of the
Agreement, net of any investment earnings thereon, (iv) the interest of the
Trust Fund in any insurance policies with respect to the Mortgage Loans, (v) the
rights of the Depositor assigned to the Trustee pursuant to Sections 2.01 and
3.01 of the Agreement, and (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
A-2
This Class A Certificate represents a Percentage Interest equal to the
Initial Certificate Principal Balance of this Certificate divided by the Initial
Certificate Principal Balance of the Class A-[ ] Certificates, both as set forth
above.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 19th day of each month (each, a "Distribution
Date"), or if such 19th day is not a Business Day, the next succeeding Business
Day, to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (each, a "Record Date"), from the Available Distribution
Amount in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount of interest and principal, if any required to be
distributed to the Class A-[ ] Certificates on such Distribution Date.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Holder hereof entitled thereto at the address
appearing in the Certificate Register or, if such Holder holds one or more of
this Class of Certificates with an aggregate initial Certificate Principal
Balance of at least $2,500,000 or all of the Certificates of this Class, by wire
transfer in immediately available funds to the account of such Certificateholder
designated in writing to the Trustee at least five Business Days prior to the
applicable Record Date. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice of the pendency of such final
distribution and only upon presentation and surrender of this Certificate at the
office or agency designated in such notice.
The Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Servicer and the Seller and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer, the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Voting Rights aggregating not less than 66-2/3% of the
Voting Rights of all 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 Mortgage Loans are required to be
distributed in respect of 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 in (i) above
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the Voting Rights of such Class, (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent to
any such amendment, without the consent of 100% of the Holders of Certificates
of the Class affected thereby, (iv) change the percentage of the Principal
Balance of the Mortgage Loans specified in Section 10.01(a) of the Agreement
relating to optional termination of the Trust Fund without the consent of 100%
of the Holders of Certificates, (v) modify the provisions of Section 11.01 of
the Agreement without the consent of 100% of the Holders of Certificates, or
(vi) terminate the Agreement or the Trust Fund created hereunder other than as
provided in Article X of the Agreement without the consent of 100% of the
Holders of Certificates. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the Depositor, the
Servicer, the Seller and the Trustee to amend certain terms and conditions set
forth in the Agreement without the consent of Holders of the Certificates. At
any time that any of the Class of Certificates are outstanding, 99% of all
Voting Rights will be allocated to the Holders of the Certificates (other than
the Class R Certificates), in proportion to their then outstanding Certificate
Principal Balances and 1.00% of all Voting Rights will be allocated to the
Holders of the Class R Certificates.
A-3
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class and of authorized denominations, and for the same aggregate
interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Class A Certificates will be issued in fully registered form in
minimum denominations of $100,000 Certificate Principal Balance and in integral
multiples of $1,000 in excess of such amount. As provided in the Agreement and
subject to certain limitations therein set forth, this Certificate is
exchangeable for one or more new Certificates of the same Class and of
authorized denominations evidencing a like aggregate Certificate Principal
Balance, as requested by the Holder surrendering the same.
No service charge will be made for such registrations of transfers or
exchanges, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. The Trustee
and any agent of the Trustee may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Trustee nor
any such agent thereof shall be affected by notice to the contrary.
The obligations and responsibilities of the Servicer, the Seller,
Depositor and the Trustee created by the Agreement will terminate upon the
earlier of (a) the purchase by the Servicer from the Trust Fund of all remaining
Mortgage Loans and all property acquired in respect of such Mortgage Loans,
thereby effecting early retirement of the Certificates, (b) twelve months after
the maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (c) the agreement by all Certificateholders to terminate the
Trust REMIC, REMIC I and REMIC II. As provided in the Agreement, the right to
purchase all Mortgage Loans pursuant to clause (a) above shall be conditioned
upon the unpaid Principal Balances of such Mortgage Loans, at the time of any
such repurchase, aggregating less than or equal to 10% of the aggregate
Principal Balances thereof as of the Cut-off Date.
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. If the terms hereof are inconsistent with the
Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid or obligatory for any
purpose.
The recitals contained herein shall be taken as statements of the
Depositor and not of the Trustee. The Trustee assumes no responsibility for the
correctness of the statements contained in this Certificate and makes no
representation as to the validity or sufficiency of the Agreement, this
Certificate, any Mortgage Loan or any related document.
A-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its corporate seal.
BANK ONE, NATIONAL ASSOCIATION
solely as Trustee and not individually
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date:
---------------------
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Authorized Officer
A-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned xxxxxx xxxx(s), assign(s) and
transfer(s) unto
---------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, or
assignee) the undivided interest in the Trust Fund evidenced by the within
Certificate and hereby authorize(s) the transfer of registration of such
interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of the
same Class and of a like Initial Certificate Principal Balance and undivided
interest in the Trust Fund to the above-named assignee and to deliver such
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-----------------
------------------------------ ------------------------------------------
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee (signature must be signed as registered)
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Servicer:
Distribution shall be made by check mailed to
----------------------
-------------------------------------------------------------------------------,
or if the aggregate Initial Certificate Principal Balance of Certificates of
this Class held by the Holder is at least $2,500,000 or the Percentage Interest
within such Class is 100%, and the Trustee shall have received appropriate
wiring instructions in accordance with the Agreement, by wire transfer in
immediately available funds to the account of ,
------------------------------
account number . This information is provided by the assignee
------------
named above, or its agent.
A-6
EXHIBIT A-1
FORM OF CLASS I-A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
WAMU MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2001-AR5, CLASS I-A
Evidencing an undivided interest in a Trust Fund whose assets consist of a pool
of adjustable-rate mortgage loans secured by first liens on one- to- four-family
residential real properties and certain other property held in trust transferred
by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP $ Initial Aggregate Class I-A
-------- -------- Certificate Principal Balance
Certificate No. I-A- $ Initial Certificate Principal
--- -------- Balance Of This Certificate
First Distribution Date: Scheduled Final Distribution
December 19, 2001 Date: [ ]
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a beneficial
interest in the Trust Fund referred to below consisting of a pool of
adjustable-rate mortgage loans secured by first liens on one- to- four-family
residential real properties (the "Mortgage Loans") and certain other property
held in trust transferred to the Trust Fund by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"), and certain related property. The
Trust Fund was created pursuant to the Pooling and Servicing Agreement, dated as
of December 1, 1999, as amended and restated as of November 1, 2001, (the
"Agreement"), among the Depositor, Bank One, National Association, as trustee
(the "Trustee", which term includes any successor entity under the Agreement)
and Washington Mutual Bank, FA., as seller and servicer, a summary of certain of
the pertinent provisions of which is set forth herein. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to
A-1-1
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series
2001-AR5 (the "AR5 Certificates"), which is comprised of the following nine
Classes: Class I-A, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class Y, and Class I-R. Pursuant to the Agreement, the Depositor also
issued the Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates,
Series 1999-WM4 (the "WM4 Certificates", and together with the AR5 Certificates,
the "Certificate") which is comprised of the following ten Classes: Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8,
Class A-9 and Class R. Reference is hereby made to the Agreement for a statement
of the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Class AR5
Mortgage Loans and all distributions thereon payable after the Class AR5 Cut-off
Date, net of certain amounts in accordance with the provisions of the Agreement,
(ii) REO Property, (iii) the Certificate Account and the Custodial Account and
all amounts deposited therein pursuant to the applicable provisions of the
Agreement, net of any investment earnings thereon, (iv) the interest of the
Trust Fund in any insurance policies with respect to the Mortgage Loans, (v) the
rights of the Depositor assigned to the Trustee pursuant to Sections 2.01 and
3.01 of the Agreement, and (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
This Class I-A Certificate represents a Percentage Interest equal to
the Initial Certificate Principal Balance of this Certificate divided by the
Initial Certificate Principal Balance of the Class I-A Certificates, both as set
forth above.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 19th day of each month (each, a "Distribution
Date"), or if such 19th day is not a Business Day, the next succeeding Business
Day, to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (each, a "Record Date"), from the Available Distribution
Amount for the AR5 Certificates in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any required to be distributed to the Class I-A Certificates on
such Distribution Date.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Holder hereof entitled thereto at the address
appearing in the Certificate Register or, if such Holder holds one or more of
this Class of Certificates with an aggregate initial Certificate Principal
Balance of at least $2,500,000 or all of the Certificates of this Class, by wire
transfer in immediately available funds to the account of such Certificateholder
designated in writing to the Trustee at least five Business Days prior to the
applicable Record Date. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice of the pendency of such final
distribution and only upon presentation and surrender of this Certificate at the
office or agency designated in such notice.
The Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Servicer and the Seller and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
A-1-2
Servicer, the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Voting Rights aggregating not less than 66-2/3% of the
Voting Rights of all 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 Mortgage Loans are required to be
distributed in respect of 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 in (i) above
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the Voting Rights of such Class, (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent to
any such amendment, without the consent of 100% of the Holders of Certificates
of the Class affected thereby, (iv) change the percentage of the Principal
Balance of the Mortgage Loans specified in Section 10.01(a) of the Agreement
relating to optional termination of the Trust Fund without the consent of 100%
of the Holders of Certificates, (v) modify the provisions of Section 11.01 of
the Agreement without the consent of 100% of the Holders of Certificates, or
(vi) terminate the Agreement or the Trust Fund created hereunder other than as
provided in Article X of the Agreement without the consent of 100% of the
Holders of Certificates. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the Depositor, the
Servicer, the Seller and the Trustee to amend certain terms and conditions set
forth in the Agreement without the consent of Holders of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class and of authorized denominations, and for the same aggregate
interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Class I-A Certificates will be issued in fully registered form in
minimum denominations of $25,000 Certificate Principal Balance and in integral
multiples of $1,000 in excess of such amount. As provided in the Agreement and
subject to certain limitations therein set forth, this Certificate is
exchangeable for one or more new Certificates of the same Class and of
authorized denominations evidencing a like aggregate Certificate Principal
Balance, as requested by the Holder surrendering the same.
No service charge will be made for such registrations of transfers or
exchanges, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. The Trustee
and any agent of the Trustee may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Trustee nor
any such agent thereof shall be affected by notice to the contrary.
The obligations and responsibilities of the Servicer, the Seller,
Depositor and the Trustee created by the Agreement will terminate upon the
earlier of (a) the purchase by the Servicer from the Trust Fund of all remaining
Mortgage Loans and all property acquired in respect of such Mortgage Loans,
thereby effecting early retirement of the Certificates, (b) twelve months after
the maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (c) the agreement by all Certificateholders to terminate the
Trust REMIC, REMIC I and REMIC II. As provided in the Agreement, the right to
purchase all Mortgage Loans pursuant to clause (a) above shall be conditioned
upon the unpaid Principal Balances of such Mortgage Loans, at the
A-1-3
time of any such repurchase, aggregating less than or equal to 10% of the
aggregate Principal Balances thereof as of the Cut-off Date.
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. If the terms hereof are inconsistent with the
Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid or obligatory for any
purpose.
The recitals contained herein shall be taken as statements of the
Depositor and not of the Trustee. The Trustee assumes no responsibility for the
correctness of the statements contained in this Certificate and makes no
representation as to the validity or sufficiency of the Agreement, this
Certificate, any Mortgage Loan or any related document.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its corporate seal.
BANK ONE, NATIONAL ASSOCIATION
solely as Trustee and not individually
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date:
---------------------
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Authorized Officer
A-1-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned xxxxxx xxxx(s), assign(s) and
transfer(s) unto
---------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, or
assignee) the undivided interest in the Trust Fund evidenced by the within
Certificate and hereby authorize(s) the transfer of registration of such
interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of the
same Class and of a like Initial Certificate Principal Balance and undivided
interest in the Trust Fund to the above-named assignee and to deliver such
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-----------------
------------------------------ ------------------------------------------
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee (signature must be signed as registered)
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Servicer:
Distribution shall be made by check mailed to
----------------------
-------------------------------------------------------------------------------,
or if the aggregate Initial Certificate Principal Balance of Certificates of
this Class held by the Holder is at least $2,500,000 or the Percentage Interest
within such Class is 100%, and the Trustee shall have received appropriate
wiring instructions in accordance with the Agreement, by wire transfer in
immediately available funds to the account of ,
------------------------------
account number . This information is provided by the assignee
------------
named above, or its agent.
A-1-6
EXHIBIT A-2
FORM OF CLASS B-[1][2][3] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS II A, CLASS
R-I AND CLASS R-II CERTIFICATES [CLASS B-1 CERTIFICATES] [AND CLASS B-2
CERTIFICATES] AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED BY VIRTUE
OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN) THAT EITHER
(A) SUCH TRANSFEREE IS NOT AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE
OF ANY PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR PURCHASING ANY
CERTIFICATE WITH "PLAN ASSETS" OF ANY PLAN (A "PLAN INVESTOR"), (B) IT HAS
ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION
EXEMPTION ("PTE") 89-90, 59 FED. REG. 42597 (OCTOBER 17, 1989), AS AMENDED BY
PTE 97-34, 62 FED. REG. 39021 (JULY 21, 1997), AND PTE 2000-58, 65 FED. REG.
67765 (NOVEMBER 13, 2000) (THE "EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE
ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE EXEMPTION INCLUDING THAT SUCH
CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR
ITS EQUIVALENT) BY STANDARD & POOR'S, FITCH OR XXXXX'X OR (C) (I) THE TRANSFEREE
IS AN INSURANCE COMPANY, (II) THE SOURCE OF FUNDS TO BE USED BY IT TO PURCHASE
THE CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60), AND
(III) THE CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (C), A "COMPLYING INSURANCE
COMPANY).
IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD BY ANY PERSON
THAT DOES NOT SATISFY THE CONDITIONS DESCRIBED IN THE PRECEDING PARAGRAPH, THEN
THE LAST PRECEDING TRANSFEREE THAT EITHER (I) IS NOT A PLAN INVESTOR, (II)
ACQUIRED SUCH CERTIFICATE IN
A-2-1
COMPLIANCE WITH THE RFC EXEMPTION, OR (III) IS A COMPLYING INSURANCE COMPANY
SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS
AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF THIS
CERTIFICATE. THE TRUSTEE SHALL BE UNDER NO LIABILITY TO ANY PERSON FOR MAKING
ANY PAYMENTS DUE ON THIS CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS IN SECTION
5.02(E) OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS
THE COMPANY, THE TRUSTEE, THE SERVICER, ANY SUBSERVICER, AND THE TRUST FUND FROM
AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH
PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
WAMU MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2001-AR5, CLASS B-[1][2][3]
Evidencing an undivided interest in a Trust Fund whose assets consist of a pool
of adjustable-rate mortgage loans secured by first liens on one- to- four-family
residential real properties and certain other property held in trust transferred
by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP $ Initial Aggregate Class B-[1][2]
---------- --------- [3]Certificate Principal Balance
Certificate No. B-[1][2][3]- $ Initial Certificate Principal
--- --------- Balance Of This Certificate
First Distribution Date: Scheduled Final Distribution
December 19, 2001 Date: [ ]
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a beneficial
interest in the Trust Fund referred to below consisting of a pool of
adjustable-rate mortgage loans secured by first liens on one- to- four-family
residential real properties (the "Mortgage Loans") and certain other property
held in trust transferred to the Trust Fund by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"), and certain related property. The
Trust Fund was created pursuant to the Pooling and Servicing Agreement, dated as
of December 1, 1999, as amended and restated as of November 1, 2001, (the
"Agreement"), among the Depositor, Bank One, National Association, as trustee
(the "Trustee", which term includes any successor entity under the Agreement)
and Washington Mutual Bank, FA., as seller and servicer, a summary of certain of
the pertinent provisions of which is set forth herein. 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.
A-2-2
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series
2001-AR5 (the "AR5 Certificates"), which is comprised of the following nine
Classes: Class I-A, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class Y, and Class I-R. Pursuant to the Agreement, the Depositor also
issued the Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates,
Series 1999-WM4 (the "WM4 Certificates", and together with the AR5 Certificates,
the "Certificates") which is comprised of the following ten Classes: Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8,
Class A-9 and Class R. Reference is hereby made to the Agreement for a statement
of the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Class AR5
Mortgage Loans and all distributions thereon payable after the Class AR5 Cut-off
Date, net of certain amounts in accordance with the provisions of the Agreement,
(ii) REO Property, (iii) the Certificate Account and the Custodial Account and
all amounts deposited therein pursuant to the applicable provisions of the
Agreement, net of any investment earnings thereon, (iv) the interest of the
Trust Fund in any insurance policies with respect to the Mortgage Loans, (v) the
rights of the Depositor assigned to the Trustee pursuant to Sections 2.01 and
3.01 of the Agreement, and (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
This Class B-[1][2][3] Certificate represents a Percentage Interest
equal to the Initial Certificate Principal Balance of this Certificate divided
by the Initial Certificate Principal Balance of the Class B-[1][2][3]
Certificates, both as set forth above.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 19th day of each month (each, a "Distribution
Date"), or if such 19th day is not a Business Day, the next succeeding Business
Day, to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (each, a "Record Date"), from the Available Distribution
Amount for the AR5 Certificates in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any required to be distributed to the Class B-[1][2][3]
Certificates on such Distribution Date.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Holder hereof entitled thereto at the address
appearing in the Certificate Register or, if such Holder holds one or more of
this Class of Certificates with an aggregate initial Certificate Principal
Balance of at least $2,500,000 or all of the Certificates of this Class, by wire
transfer in immediately available funds to the account of such Certificateholder
designated in writing to the Trustee at least five Business Days prior to the
applicable Record Date. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice of the pendency of such final
distribution and only upon presentation and surrender of this Certificate at the
office or agency designated in such notice.
The Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Servicer and the Seller and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer, the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Voting Rights aggregating not less than 66-2/3% of the
Voting Rights of all the Certificates; PROVIDED, HOWEVER, that no such amendment
may (i) reduce in any manner the amount of, delay the timing of or change the
A-2-3
manner in which payments received on Mortgage Loans are required to be
distributed in respect of 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 in (i) above
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the Voting Rights of such Class, (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent to
any such amendment, without the consent of 100% of the Holders of Certificates
of the Class affected thereby, (iv) change the percentage of the Principal
Balance of the Mortgage Loans specified in Section 10.01(a) of the Agreement
relating to optional termination of the Trust Fund without the consent of 100%
of the Holders of Certificates, (v) modify the provisions of Section 11.01 of
the Agreement without the consent of 100% of the Holders of Certificates, or
(vi) terminate the Agreement or the Trust Fund created hereunder other than as
provided in Article X of the Agreement without the consent of 100% of the
Holders of Certificates. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the Depositor, the
Servicer, the Seller and the Trustee to amend certain terms and conditions set
forth in the Agreement without the consent of Holders of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class and of authorized denominations, and for the same aggregate
interest in the Trust Fund will be issued to the designated transferee or
transferees.
As described above, no transfer of the Class B-[1][2][3] Certificates
will be made unless (i) the Trustee has received either an opinion of counsel or
a representation letter, each as described in the Agreement, relating to the
permissibility of such transfer under ERISA and Section 4975 of the Code, or
(ii) this Certificate is held by a Depository, in which case the Transferee will
be deemed to have made representations relating to the permissibility of such
transfer under ERISA and Section 4975 of the Code, as described in Section
6.02(f) of the Agreement. In addition, any purported Certificate Owner whose
acquisition or holding of this Certificate (or interest herein) was effected in
violation of the restrictions in Section 6.02(f) of the Agreement shall
indemnify and hold harmless the Depositor, the Trustee, the Servicer, any
Subservicer, and the Trust Fund from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
The Class B-[1][2][3] Certificates will be issued in fully registered
form in minimum denominations of $25,000 Certificate Principal Balance and in
integral multiples of $1,000 in excess of such amount. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates of the same Class and of
authorized denominations evidencing a like aggregate Certificate Principal
Balance, as requested by the Holder surrendering the same.
No service charge will be made for such registrations of transfers or
exchanges, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. The Trustee
and any agent of the Trustee may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Trustee nor
any such agent thereof shall be affected by notice to the contrary.
A-2-4
The obligations and responsibilities of the Servicer, the Seller,
Depositor and the Trustee created by the Agreement will terminate upon the
earlier of (a) the purchase by the Servicer from the Trust Fund of all remaining
Mortgage Loans and all property acquired in respect of such Mortgage Loans,
thereby effecting early retirement of the Certificates, (b) twelve months after
the maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (c) the agreement by all Certificateholders to terminate the
Trust REMIC, REMIC I and REMIC II. As provided in the Agreement, the right to
purchase all Mortgage Loans pursuant to clause (a) above shall be conditioned
upon the unpaid Principal Balances of such Mortgage Loans, at the time of any
such repurchase, aggregating less than or equal to 10% of the aggregate
Principal Balances thereof as of the Cut-off Date.
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. If the terms hereof are inconsistent with the
Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid or obligatory for any
purpose.
The recitals contained herein shall be taken as statements of the
Depositor and not of the Trustee. The Trustee assumes no responsibility for the
correctness of the statements contained in this Certificate and makes no
representation as to the validity or sufficiency of the Agreement, this
Certificate, any Mortgage Loan or any related document.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its corporate seal.
BANK ONE, NATIONAL ASSOCIATION
solely as Trustee and not individually
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date:
---------------------
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Authorized Officer
A-2-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned xxxxxx xxxx(s), assign(s) and
transfer(s) unto
---------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, or
assignee) the undivided interest in the Trust Fund evidenced by the within
Certificate and hereby authorize(s) the transfer of registration of such
interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of the
same Class and of a like Initial Certificate Principal Balance and undivided
interest in the Trust Fund to the above-named assignee and to deliver such
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-----------------
------------------------------ ------------------------------------------
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee (signature must be signed as registered)
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Servicer:
Distribution shall be made by check mailed to
----------------------
-------------------------------------------------------------------------------,
or if the aggregate Initial Certificate Principal Balance of Certificates of
this Class held by the Holder is at least $2,500,000 or the Percentage Interest
within such Class is 100%, and the Trustee shall have received appropriate
wiring instructions in accordance with the Agreement, by wire transfer in
immediately available funds to the account of ,
------------------------------
account number . This information is provided by the assignee
------------
named above, or its agent.
A-2-7
EXHIBIT A-3
FORM OF CLASS B-[4][5][6] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS II A, CLASS
R-I AND CLASS R-II CERTIFICATES [CLASS B-1 CERTIFICATES] [CLASS B-2
CERTIFICATES] [CLASS B-3 CERTIFICATES] [CLASS B-$ CERTIFICATES] [AND CLASS B-5
CERTIFICATES] AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED BY VIRTUE
OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN) THAT THE
PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL
NOT SUBJECT THE SERVICER, THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION OR
LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD BY ANY PERSON
THAT DOES NOT SATISFY THE CONDITIONS DESCRIBED IN THE PRECEDING PARAGRAPH, THEN
THE LAST PRECEDING TRANSFEREE THAT THE OWNERSHIP THEREOF WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA, OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE SERVICER, THE COMPANY OR THE
TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
A-3-1
UNDERTAKEN IN THE AGREEMENT, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND
OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH
TRANSFER OF THIS CERTIFICATE. THE TRUSTEE SHALL BE UNDER NO LIABILITY TO ANY
PERSON FOR MAKING ANY PAYMENTS DUE ON THIS CERTIFICATE TO SUCH PRECEDING
TRANSFEREE.
A-3-2
WAMU MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2001-AR5, CLASS B-[4][5][6]
Evidencing an undivided interest in a Trust Fund whose assets consist of a pool
of adjustable-rate mortgage loans secured by first liens on one- to- four-family
residential real properties and certain other property held in trust transferred
by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP $ Initial Aggregate Class B-[4][5]
---------- ---------- [6]Certificate Principal Balance
Certificate No. B-[4][5][6]- $ Initial Certificate Principal
--- ---------- Balance Of This Certificate
First Distribution Date: Scheduled Final Distribution
December 19, 2001 Date: [ ]
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a beneficial
interest in the Trust Fund referred to below consisting of a pool of
adjustable-rate mortgage loans secured by first liens on one- to- four-family
residential real properties (the "Mortgage Loans") and certain other property
held in trust transferred to the Trust Fund by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"), and certain related property. The
Trust Fund was created pursuant to the Pooling and Servicing Agreement, dated as
of December 1, 1999, as amended and restated as of November 1, 2001, (the
"Agreement"), among the Depositor, Bank One, National Association, as trustee
(the "Trustee", which term includes any successor entity under the Agreement)
and Washington Mutual Bank, FA., as seller and servicer, a summary of certain of
the pertinent provisions of which is set forth herein. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series
2001-AR5 (the "AR5 Certificates"), which is comprised of the following nine
Classes: Class I-A, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class Y and Class I-R. Pursuant to the Agreement, the Depositor also issued
the Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series
1999-WM4 (the "WM4 Certificates", and together with the AR5 Certificates, the
"Certificates") which is comprised of the following ten Classes: Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8,
Class A-9 and Class R. Reference is hereby made to the Agreement for a statement
of the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Class AR5
Mortgage Loans and all distributions thereon payable after the Class AR5 Cut-off
Date, net of certain amounts in accordance with the provisions of the Agreement,
(ii) REO Property, (iii) the Certificate Account and the Custodial Account and
all amounts deposited therein pursuant to the applicable provisions of the
Agreement, net of any investment earnings thereon, (iv) the interest of the
Trust Fund in any insurance policies with respect to
A-3-3
the Mortgage Loans, (v) the rights of the Depositor assigned to the Trustee
pursuant to Sections 2.01 and 3.01 of the Agreement, and (vi) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
This Class B-[4][5][6] Certificate represents a Percentage Interest
equal to the Initial Certificate Principal Balance of this Certificate divided
by the Initial Certificate Principal Balance of the Class B-[4][5][6]
Certificates, both as set forth above.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 19th day of each month (each, a "Distribution
Date"), or if such 19th day is not a Business Day, the next succeeding Business
Day, to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (each, a "Record Date"), from the Available Distribution
Amount for the AR5 Certificates in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any required to be distributed to the Class B-[4][5][6]
Certificates on such Distribution Date.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Holder hereof entitled thereto at the address
appearing in the Certificate Register or, if such Holder holds one or more of
this Class of Certificates with an aggregate initial Certificate Principal
Balance of at least $2,500,000 or all of the Certificates of this Class, by wire
transfer in immediately available funds to the account of such Certificateholder
designated in writing to the Trustee at least five Business Days prior to the
applicable Record Date. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice of the pendency of such final
distribution and only upon presentation and surrender of this Certificate at the
office or agency designated in such notice.
The Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Servicer and the Seller and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer, the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Voting Rights aggregating not less than 66-2/3% of the
Voting Rights of all 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 Mortgage Loans are required to be
distributed in respect of 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 in (i) above
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the Voting Rights of such Class, (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent to
any such amendment, without the consent of 100% of the Holders of Certificates
of the Class affected thereby, (iv) change the percentage of the Principal
Balance of the Mortgage Loans specified in Section 10.01(a) of the Agreement
relating to optional termination of the Trust Fund without the consent of 100%
of the Holders of Certificates, (v) modify the provisions of Section 11.01 of
the Agreement without the consent of 100% of the Holders of Certificates, or
(vi) terminate the Agreement or the Trust Fund created hereunder other than as
provided in Article X of the Agreement without the consent of 100% of the
Holders of Certificates. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the Depositor, the
Servicer,
A-3-4
the Seller and the Trustee to amend certain terms and conditions set forth in
the Agreement without the consent of Holders of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class and of authorized denominations, and for the same aggregate
interest in the Trust Fund will be issued to the designated transferee or
transferees.
No transfer of this Class B-[4][5][6] Certificate will be made unless
such transfer is exempt from the registration requirements of the Securities Act
of 1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Company may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor that such transfer is exempt (describing the applicable exemption and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described by the Agreement. The Holder hereof desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Servicer and the Certificate Registrar acting on behalf of the
Trustee against any liability that may result if the transfer is not so exempt
or is not made in accordance with such Federal and state laws. In connection
with any such transfer, the Trustee will also require either (i) an opinion of
counsel acceptable to and in form and substance satisfactory to the Trustee, the
Depositor and the Servicer with respect to the permissibility of such transfer
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and Section 4975 of the Internal Revenue Code (the "Code") and stating, among
other things, that the transferee's acquisition of a Class B Certificate will
not constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code or (ii) a representation letter, in the
form as described by the Agreement, either stating that the transferee is not an
employee benefit or other plan subject to the prohibited transaction provisions
of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including
an investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any Plan, or stating that the transferee is an insurance company, the
source of funds to be used by it to purchase the Certificate is an "insurance
company general account" (within the meaning of Department of Labor Prohibited
Transaction Class Exemption.
The Class B-[4][5][6] Certificates will be issued in fully registered
form in minimum denominations of $25,000 Certificate Principal Balance and in
integral multiples of $1,000 in excess of such amount. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates of the same Class and of
authorized denominations evidencing a like aggregate Certificate Principal
Balance, as requested by the Holder surrendering the same.
No service charge will be made for such registrations of transfers or
exchanges, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. The Trustee
and any agent of the Trustee may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Trustee nor
any such agent thereof shall be affected by notice to the contrary.
The obligations and responsibilities of the Servicer, the Seller,
Depositor and the Trustee created by the Agreement will terminate upon the
earlier of (a) the purchase by the Servicer from the
A-3-5
Trust Fund of all remaining Mortgage Loans and all property acquired in respect
of such Mortgage Loans, thereby effecting early retirement of the Certificates,
(b) twelve months after the maturity or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan or (c) the agreement by all Certificateholders
to terminate the Trust REMIC, REMIC I and REMIC II. As provided in the
Agreement, the right to purchase all Mortgage Loans pursuant to clause (a) above
shall be conditioned upon the unpaid Principal Balances of such Mortgage Loans,
at the time of any such repurchase, aggregating less than or equal to 10% of the
aggregate Principal Balances thereof as of the Cut-off Date.
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. If the terms hereof are inconsistent with the
Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid or obligatory for any
purpose.
The recitals contained herein shall be taken as statements of the
Depositor and not of the Trustee. The Trustee assumes no responsibility for the
correctness of the statements contained in this Certificate and makes no
representation as to the validity or sufficiency of the Agreement, this
Certificate, any Mortgage Loan or any related document.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its corporate seal.
BANK ONE, NATIONAL ASSOCIATION
solely as Trustee and not individually
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date:
---------------------
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Authorized Officer
A-3-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned xxxxxx xxxx(s), assign(s) and
transfer(s) unto
---------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, or
assignee) the undivided interest in the Trust Fund evidenced by the within
Certificate and hereby authorize(s) the transfer of registration of such
interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of the
same Class and of a like Initial Certificate Principal Balance and undivided
interest in the Trust Fund to the above-named assignee and to deliver such
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-----------------
------------------------------ ------------------------------------------
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee (signature must be signed as registered)
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Servicer:
Distribution shall be made by check mailed to
----------------------
-------------------------------------------------------------------------------,
or if the aggregate Initial Certificate Principal Balance of Certificates of
this Class held by the Holder is at least $2,500,000 or the Percentage Interest
within such Class is 100%, and the Trustee shall have received appropriate
wiring instructions in accordance with the Agreement, by wire transfer in
immediately available funds to the account of ,
------------------------------
account number . This information is provided by the assignee
------------
named above, or its agent.
A-3-8
EXHIBIT B
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., WASHINGTON MUTUAL BANK, FA OR THE
TRUSTEE REFERRED TO BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS
NOT GUARANTEED OR INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
ANY SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT EITHER (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 TAXES
IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE, (C) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775 OF THE CODE OR 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 (3) 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 R 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
B-1
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 R
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE.
WASHINGTON MUTUAL BANK, FA
MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 1999-WM4, CLASS R
Evidencing an undivided interest in a Trust Fund whose assets consist of a pool
of fixed-rate and adjustable-rate, mortgage loans secured by first liens on one-
to- four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Certificate No. R 100% Percentage Interest Represented By
This Certificate
First Distribution Date: Scheduled Final Distribution
January 19, 2000 Date: [ ]
THIS CERTIFIES THAT is the registered owner of a beneficial interest
in the Trust Fund referred to below consisting of a pool of fixed-rate and
adjustable-rate mortgage loans secured by first liens on one- to- four-family
residential real properties (the "Mortgage Loans") and certain other property
held in trust transferred to the Trust Fund by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"), and certain related property. The
Trust Fund was created pursuant to the Pooling and Servicing Agreement, dated as
of November 1, 1999 (the "Agreement"), among the Depositor, Bank One, National
Association, as trustee (the "Trustee", which term includes any successor entity
under the Agreement) and Washington Mutual Bank, FA., as seller and servicer, a
summary of certain of the pertinent provisions of which is set forth herein.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series
1999-WM4 (the "Certificates"), which is comprised of the following ten Classes:
Class A-1, Class A-2, Class A-3, Class A-4, Class A -5, Class A-6, Class A-7,
Class A-8, Class A-9 and Class R. Reference is hereby made to the Agreement for
a statement of the respective rights thereunder of the Depositor and the Trustee
and the Holders of the Certificates and the terms upon which the Certificates
are authenticated and delivered. This Certificate represents an interest in the
Trust
B-2
Fund, which Trust Fund consists of, among other things, (i) the Mortgage Loans
and all distributions thereon payable after the Cut-off Date, net of certain
amounts in accordance with the provisions of the Agreement, (ii) REO Property,
(iii) the Certificate Account and the Custodial Account and all amounts
deposited therein pursuant to the applicable provisions of the Agreement, net of
any investment earnings thereon, (iv) the interest of the Trust Fund in any
insurance policies with respect to the Mortgage Loans, (v) the rights of the
Depositor assigned to the Trustee pursuant to Sections 2.01 and 3.01 of the
Agreement, and (vi) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing into cash or other liquid property.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
The Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Servicer and the Seller and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer, the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Voting Rights aggregating not less than 66-2/3% of the
Voting Rights of all 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 Mortgage Loans are required to be
distributed in respect of 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 in (i) above
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the Voting Rights of such Class, (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent to
any such amendment, without the consent of 100% of the Holders of Certificates
of the Class affected thereby, (iv) change the percentage of the Principal
Balance of the Mortgage Loans specified in Section 10.01(a) of the Agreement
relating to optional termination of the Trust Fund without the consent of 100%
of the Holders of Certificates, (v) modify the provisions of Section 11.01 of
the Agreement without the consent of 100% of the Holders of Certificates, or
(vi) terminate the Agreement or the Trust Fund created hereunder other than as
provided in Article X of the Agreement without the consent of 100% of the
Holders of Certificates. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the Depositor, the
Servicer, the Seller and the Trustee to amend certain terms and conditions set
forth in the Agreement without the consent of Holders of the Certificates. At
any time that any of the Class of Certificates are outstanding, 99% of all
Voting Rights will be allocated to the Holders of the Certificates (other than
the Class R Certificates), in proportion to their then outstanding Certificate
Principal Balances and 1.00% of all Voting Rights will be allocated to the
Holders of the Class R Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class and of authorized denominations, and for the same aggregate
interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Class R Certificates will be issued in fully registered form in
minimum Percentage Interests of 20% and integral multiples thereof. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates of the same
B-3
Class and of authorized Percentage Interests evidencing a like aggregate
Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for such registrations of transfers or
exchanges, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. The Trustee
and any agent of the Trustee may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Trustee nor
any such agent thereof shall be affected by notice to the contrary.
Pursuant to the Agreement, the Depositor will make an election to
treat the Trust REMIC, as a real estate mortgage investment conduit (a "REMIC")
for federal income tax purposes. The Class R Certificates will be the "residual
interest" in the Trust REMIC and all other Classes A Certificates will
constitute the "regular interests" in the Trust REMIC.
The obligations and responsibilities of the Depositor, the Seller, the
Servicer and the Trustee created by the Agreement will terminate upon the
earlier of (a) the purchase by the Servicer from the Trust Fund of all remaining
Mortgage Loans and all property acquired in respect of such Mortgage Loans,
thereby effecting early retirement of the Certificates, (b) twelve months after
the maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (c) the agreement by all Certificateholders to terminate the
Trust REMIC. As provided in the Agreement, the right to purchase all Mortgage
Loans pursuant to clause (a) above shall be conditioned upon the unpaid
Principal Balances of such Mortgage Loans, at the time of any such repurchase,
aggregating less than or equal to 10% of the aggregate Principal Balances
thereof as of the Cut-off Date.
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. If the terms hereof are inconsistent with the
Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid or obligatory for any
purpose.
The recitals contained herein shall be taken as statements of the
Depositor and not of the Trustee. The Trustee assumes no responsibility for the
correctness of the statements contained in this Certificate and makes no
representation as to the validity or sufficiency of the Agreement, this
Certificate, any Mortgage Loan or any related document.
B-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its corporate seal.
BANK ONE, NATIONAL ASSOCIATION,
solely as Trustee and not individually
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date:
----------------------
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Authorized Officer
B-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned xxxxxx xxxx(s), assign(s) and
transfer(s) unto
---------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, or
assignee) the undivided interest in the Trust Fund evidenced by the within
Certificate and hereby authorize(s) the transfer of registration of such
interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of the
same Class and of a like Initial Certificate Principal Balance and undivided
interest in the Trust Fund to the above-named assignee and to deliver such
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-----------------
------------------------------ ------------------------------------------
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee (signature must be signed as registered)
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Servicer:
Distribution shall be made by check mailed to
----------------------
-------------------------------------------------------------------------------,
or if the aggregate Initial Certificate Principal Balance of Certificates of
this Class held by the Holder is at least $2,500,000 or the Percentage Interest
within such Class is 100%, and the Trustee shall have received appropriate
wiring instructions in accordance with the Agreement, by wire transfer in
immediately available funds to the account of ,
------------------------------
account number . This information is provided by the assignee
------------
named above, or its agent.
B-6
EXHIBIT B-1
FORM OF CLASS I-R CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., WASHINGTON MUTUAL BANK, FA OR THE
TRUSTEE REFERRED TO BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS
NOT GUARANTEED OR INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
ANY SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS I-R CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
TRUSTEE TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH
TRANSFEREE IS NOT EITHER (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 TAXES IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS
SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE, (C) AN ELECTING LARGE
PARTNERSHIP UNDER SECTION 775 OF THE CODE OR 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 (3) 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 I-R CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN
AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED
B-1-1
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
I-R CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE.
WAMU MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2001-AR5, CLASS I-R-[1][2]
Evidencing an undivided interest in a Trust Fund whose assets consist of a pool
of fixed-rate and adjustable-rate, mortgage loans secured by first liens on one-
to- four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Certificate No. I R-[1][2] 100% Percentage Interest Represented By
This Certificate
First Distribution Date: Scheduled Final Distribution
December 19, 2001 Date: [ ]
THIS CERTIFIES THAT is the registered owner of a
--------------
beneficial interest in the Trust Fund referred to below consisting of a pool of
adjustable-rate mortgage loans secured by first liens on one- to- four-family
residential real properties (the "Mortgage Loans") and certain other property
held in trust transferred to the Trust Fund by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"), and certain related property. The
Trust Fund was created pursuant to the Pooling and Servicing Agreement, dated as
of December 1, 1999, as amended and restated as of November 1, 2001, (the
"Agreement"), among the Depositor, Bank One, National Association, as trustee
(the "Trustee", which term includes any successor entity under the Agreement)
and Washington Mutual Bank, FA., as seller and servicer, a summary of certain of
the pertinent provisions of which is set forth herein. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series
2001-AR5 (the "AR5 Certificates"), which is comprised of the following nine
Classes: Class I-A, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class Y and Class I-R. This Class I R Certificate represents the interests
of the Class R-1 Certificate and the Class R-2 Certificate. Pursuant to the
Agreement, the Depositor also issued the Washington Mutual Bank, FA
Mortgage-Backed Pass-Through Certificates, Series 1999-WM4 (the "WM4
Certificates", and together with the AR5 Certificates, the "Certificates") which
is comprised of the following ten Classes: Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9 and
B-1-2
Class R. Reference is hereby made to the Agreement for a statement of the
respective rights thereunder of the Depositor and the Trustee and the Holders of
the Certificates and the terms upon which the Certificates are authenticated and
delivered. This Certificate represents an interest in the Trust Fund, which
Trust Fund consists of, among other things, (i) the Class AR5 Mortgage Loans and
all distributions thereon payable after the Class AR5 Cut-off Date, net of
certain amounts in accordance with the provisions of the Agreement, (ii) REO
Property, (iii) the Certificate Account and the Custodial Account and all
amounts deposited therein pursuant to the applicable provisions of the
Agreement, net of any investment earnings thereon, (iv) the interest of the
Trust Fund in any insurance policies with respect to the Mortgage Loans, (v) the
rights of the Depositor assigned to the Trustee pursuant to Sections 2.01 and
3.01 of the Agreement, and (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
The Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor, the Trustee, the Servicer and the Seller and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer, the Seller and the Trustee with the consent of the Holders of
Certificates evidencing Voting Rights aggregating not less than 66-2/3% of the
Voting Rights of all 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 Mortgage Loans are required to be
distributed in respect of 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 in (i) above
without the consent of the Holders of Certificates evidencing not less than
66-2/3% of the Voting Rights of such Class, (iii) reduce the aforesaid
percentages of Voting Rights, the holders of which are required to consent to
any such amendment, without the consent of 100% of the Holders of Certificates
of the Class affected thereby, (iv) change the percentage of the Principal
Balance of the Mortgage Loans specified in Section 10.01(a) of the Agreement
relating to optional termination of the Trust Fund without the consent of 100%
of the Holders of Certificates, (v) modify the provisions of Section 11.01 of
the Agreement without the consent of 100% of the Holders of Certificates, or
(vi) terminate the Agreement or the Trust Fund created hereunder other than as
provided in Article X of the Agreement without the consent of 100% of the
Holders of Certificates. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the Trustee duly executed by the Holder hereof or such Xxxxxx's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class and of authorized denominations, and for the same aggregate
interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Class I-R Certificates will be issued in fully registered form in
minimum Percentage Interests of 20% and integral multiples thereof. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates of the same Class
and of authorized Percentage Interests evidencing a like aggregate Percentage
Interest, as requested by the Holder surrendering the same.
B-1-3
No service charge will be made for such registrations of transfers or
exchanges, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. The Trustee
and any agent of the Trustee may treat the person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Trustee nor
any such agent thereof shall be affected by notice to the contrary.
The Class R-1 Certificate evidenced by this Class I-R Certificates
will be the "residual interest" in REMIC I and the Class R-2 Certificate
evidenced by this Class I-R Certificates will be the "residual interest" in
REMIC II and.
The obligations and responsibilities of the Depositor, the Seller, the
Servicer and the Trustee created by the Agreement will terminate upon the
earlier of (a) the purchase by the Servicer from the Trust Fund of all remaining
Mortgage Loans and all property acquired in respect of such Mortgage Loans,
thereby effecting early retirement of the Certificates, (b) twelve months after
the maturity or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan or (c) the agreement by all Certificateholders to terminate REMIC
I and REMIC II.
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. If the terms hereof are inconsistent with the
Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid or obligatory for any
purpose.
The recitals contained herein shall be taken as statements of the
Depositor and not of the Trustee. The Trustee assumes no responsibility for the
correctness of the statements contained in this Certificate and makes no
representation as to the validity or sufficiency of the Agreement, this
Certificate, any Mortgage Loan or any related document.
B-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its corporate seal.
BANK ONE, NATIONAL ASSOCIATION,
solely as Trustee and not individually
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date:
---------------------
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Authorized Officer
B-1-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned xxxxxx xxxx(s), assign(s) and
transfer(s) unto
---------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, or
assignee) the undivided interest in the Trust Fund evidenced by the within
Certificate and hereby authorize(s) the transfer of registration of such
interest to the assignee on the Certificate Register.
I (we) further direct the Trustee to issue a new Certificate of the
same Class and of a like Initial Certificate Principal Balance and undivided
interest in the Trust Fund to the above-named assignee and to deliver such
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-----------------
------------------------------ ------------------------------------------
Social Security or other Tax Signature by or on behalf of assignor
Identification No. of Assignee (signature must be signed as registered)
------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Servicer:
Distribution shall be made by check mailed to
----------------------
-------------------------------------------------------------------------------,
or if the aggregate Initial Certificate Principal Balance of Certificates of
this Class held by the Holder is at least $2,500,000 or the Percentage Interest
within such Class is 100%, and the Trustee shall have received appropriate
wiring instructions in accordance with the Agreement, by wire transfer in
immediately available funds to the account of ,
------------------------------
account number . This information is provided by the assignee
------------
named above, or its agent.
B-1-6
EXHIBIT C
SCHEDULE OF MORTGAGE LOANS
(A copy may be obtained from the Trustee)
C-1
EXHIBIT D-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
December 23, 2000
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Washington Mutual Bank, FA.
Mortgage-Backed Pass-Through Certificates, Series 1999-WM4
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
D-1
EXHIBIT D-2
FORM OF CERTIFICATION OF TRUSTEE
[date]
Washington Mutual Bank, FA
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Washington Mutual Bank, FA
Mortgage-Backed Pass-Through Certificates, Series 1999-WM4
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 of the Pooling and Servicing Agreement are in
its possession or its agent, (ii) such documents have been reviewed by it and
have not been mutilated, damaged, defaced, torn or otherwise physically altered
and such documents relate to such Mortgage Loan and (iii) each Mortgage Note has
been endorsed and each assignment of Mortgage has been delivered as provided in
Section 2.01 of the Pooling and Servicing Agreement. The Trustee has made no
independent examination of any documents required to be delivered in accordance
with Section 2.01 of the Pooling and Servicing Agreement beyond the review
specifically required therein. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents required to be delivered in accordance with Section 2.01 of the
Pooling and Servicing Agreement or any of the Mortgage Loans identified on the
Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness
or suitability of any such Mortgage Loan.
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------------
Authorized Representative
D-2-1
EXHIBIT E
FORM OF REQUEST FOR RELEASE
[date]
To:
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of December 1,
1999, among Credit Suisse First Boston Mortgage Securities Corp., as Depositor,
Washington Mutual Bank, FA, as seller and servicer, and you, as Trustee (the
"Pooling and Servicing Agreement"), the undersigned hereby requests a release of
the Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Xxxxxxxxx'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 Custodial 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 Custodial Account pursuant to the
Pooling and Servicing Agreement.)
3. The Mortgage Loan is being foreclosed.
----
4. Other. (Describe)
----
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned, except if the Mortgage Loan has been
paid in full or repurchased (in which case the Mortgage File will be retained by
us permanently) when no longer required by us for such purpose.
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[SERVICER]
By:
-----------------------------------------
Name:
Title:
E-1
EXHIBIT F
FORM OF INVESTOR REPRESENTATION LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0126
Re: Washington Mutual Bank, FA Mortgage-Backed Pass-Through
Certificates, Series 1999-WM4
Ladies and Gentlemen:
[ ] (the "Purchaser") intends to purchase from
-------------------------
[ ] (the "Seller") the Washington Mutual Bank, FA
-------------------------------
Mortgage-Backed Pass-Through Certificates, Series 1999-WM4 Class A-[1], [2],
[3][4][5][6]7][8][9][Class R] (together, the "Certificates"), issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of December 1, 1999 among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Company"), Washington Mutual Bank, FA, as
seller and servicer, and Bank One, National Association, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Purchaser hereby
certifies, represents and warrants to, and covenants with, the Company and the
Trustee that:
1. The Purchaser understands that (a) the Certificates have not been
and will not be registered or qualified under the Securities Act of 1933, as
amended (the "Act") or any state securities law, (b) the Company is not required
to so register or qualify the Certificates, (c) the Certificates may be resold
only if registered and qualified pursuant to the provisions of the Act or any
state securities law, or if an exemption from such registration and
qualification is available, (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates and (e) the Certificates
will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any applicable
state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters,
and, in particular, in such matters related to securities similar to the
Certificates, such that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the economic risks of such an
investment and (c) an "accredited investor" within the meaning of Rule 501(a)
promulgated pursuant to the Act.
F-1
4. The Purchaser has been furnished with, and has had an opportunity
to review (a) a copy of the Pooling and Servicing Agreement and (b) such other
information concerning the Certificates, the Mortgage Loans and the Company as
has been requested by the Purchaser from the Company or the Seller and is
relevant to the Purchaser's decision to purchase the Certificates. The Purchaser
has had any questions arising from such review answered by the Company or the
Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicit any offer to buy or to accept
a pledge, disposition of other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest in
any Certificate or any other similar security with any person in any manner, (d)
make any general solicitation by means of general advertising or in any other
manner or (e) take any other action, that (as to any of (a) through (e) above)
would constitute a distribution of any Certificate under the Act, that would
render the disposition of any Certificate a violation of Section 5 of the Act or
any state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
6. The Purchaser:
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (a "Plan"), or any other person (including an investment manager, a
named fiduciary or a trustee of any Plan) acting, directly or indirectly, on
behalf of or purchasing any Certificate with "plan assets" of any Plan within
the meaning of the Department of Labor ("DOL") regulation at 29 C.F.R.
ss.2510.3-101; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within the
meaning of DOL Prohibited Transaction Class Exemption ("PTCE") 95-60), and the
purchase is being made in reliance upon the availability of the exemptive relief
afforded under Sections I and III of PTCE 95-60.
Very truly yours,
[Purchaser]
By:
-----------------------------------------
Name:
Title:
F-2
EXHIBIT G
FORM OF TRANSFEROR REPRESENTATION LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0126
Re: Washington Mutual Bank, FA Mortgage-Backed Pass-Through
Certificates, Series 1999-WM4
Ladies and Gentlemen:
In connection with the sale by [ ] (the "Seller")
-----------------
to [ ] (the "Purchaser") the Washington Mutual Bank,
---------------------------
FA Mortgage-Backed Pass-Through Certificates, Series 1999-WM4 Class A-[1], [2],
[3][4][5][6][7][8][9][Class R] (together, the "Certificates"), issued pursuant
to the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of December 1, 1999 among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Company"), Washington Mutual Bank, FA., as
seller and servicer, and Bank One, National Association, as trustee (the
"Trustee"), the Seller hereby certifies, represents and warrants to, and
covenants with, the Company and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act, in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
[SELLER]
By:
---------------------------------------
Name:
Title:
G-1
EXHIBIT H
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
[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 I R Certificates (the "Class R
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 R Certificates, and (iii) is
acquiring the Class R Certificates for its own account or for the account of
another Owner from which it has received an affidavit and agreement in
substantially the same form as this affidavit and agreement. 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 electing large
partnership under Section 775 of the Code or any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives) that
is generally exempt from federal income tax unless such organization is subject
to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R Certificates to disqualified organizations under the Code;
(ii) that such tax would be on the transferor (or, with respect to electing
large partnerships, on such partnership), 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 (other than with transfers with
respect to electing large partnerships) otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such person an
affidavit that the transferee is 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 R Certificates may be "noneconomic residual
interests" within the meaning of Treasury regulations promulgated pursuant to
the Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
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 R Certificates if at any time during the taxable year of
the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
H-1
5. That the Owner is aware that the Trustee will not register the
Transfer of any Class R Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner expressly
agrees that it will not consummate any such transfer if it knows or believes
that any of the representations contained in such affidavit and agreement are
false.
6. That the Owner has reviewed the restrictions set forth on the face
of the Class R Certificates and the provisions of Section 6.02 of the Pooling
and Servicing Agreement under which the Class R 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 R 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 or any political subdivision thereof, 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
R 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. 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.
14. 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.
15. The Owner 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.
H-2
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this day of .
[NAME OF OWNER]
By:
---------------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this day of .
------- ------------------
----------------------------------------------
NOTARY PUBLIC
COUNTY OF
-------------------------
STATE OF
-------------------------
My Commission expires the day of
-----------
, 20 .
-------------- ---
H-3
EXHIBIT I
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0126
Re: Washington Mutual Bank, FA Mortgage-Backed Pass-Through
Certificates, Series 1999-WM4, Class R or Series 2001-AR5, Class
I-R (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 December 1, 1999,
as amended and restated as of December 1, 2001, among Credit Suisse First Boston
Mortgage Securities Corp. as depositor (the "Depositor"), Bank One, National
Association, as trustee (the "Trustee") and Washington Mutual Bank, FA, as
seller and servicer. All terms used herein and not otherwise defined shall have
the meanings set forth in the Pooling and Servicing Agreement. The Seller hereby
certifies, represents and warrants to, and covenants with, the Depositor 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 J. The Seller does not know or believe that
any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee is
not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificate.
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due, and
found no significant evidence to indicate that the Purchaser will not continue
to pay its debts as they come due in the future.
I-1
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:
I-2
EXHIBIT J
FORM OF ALLONGE
ALLONGE
PAY THE NOTE AFFIXED TO THIS ALLONGE TO THE ORDER OF
, WITHOUT RECOURSE.
--------------------------------------------------------
WASHINGTON MUTUAL BANK, FA
------------------------------------------
[Signature]
Name:
-----------------------------------
Title:
-----------------------------------
J-1
EXHIBIT K
FORM OF REQUEST FOR EXCHANGE
[DATE]
----------------------
----------------------
----------------------
Re: Credit Suisse First Boston Mortgage Securities Corp., Washington
Mutual Bank, FA Mortgage Pass-Through Certificates, SerieS
2001-AR5
-----------------------------------------------------------------
Washington Mutual Bank, FA, as the Holder of a % Percentage Interest
of the Class Y [-1] Certificates, hereby requests the Trustee to exchange the
above-referenced Certificates for the Subclasses referred to below:
1. Class Y- Certificates, corresponding to the following
uncertificated REMIC regular interests: [List numbers
corresponding to the related loans from the Mortgage Loan
Schedule]. The initial Certificate Principal Balance and the
Pass-Through Rate on the Class Y- Certificates will be $ and %,
respectively.
2. [Repeat as appropriate.]
The Subclasses requested above will represent in the aggregate all of
the Uncertificated REMIC regular interests represented by the Class Y [-1]
Certificates surrendered for exchange.
All capitalized terms used but not defined herein shall have the
meanings set forth in the Amended and Restated Pooling and Servicing Agreement,
dated as of November 1, 2001 among Washington Mutual Bank, FA, as seller
servicer, Credit Suisse First Boston Mortgage Securities Corp,. as depositor,
and Bank One, National Association, as trustee.
WASHINGTON MUTUAL BANK, FA
By:
-----------------------------------------
Name:
Title:
K-1
SCHEDULE X
(A copy may be obtained from the Trustee)
Schedule X
SCHEDULE Y
(A copy may be obtained from the Trustee)
Schedule Y
