Exhibit 99.1
EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
DLJ MORTGAGE CAPITAL, INC.,
Seller,
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
Seller and Servicer,
VESTA SERVICING, L.P.,
Servicer and Special Servicer
and
BANK ONE, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
relating to
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2001-28
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Table of Contents
Page
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ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Trust Fund...................................................................42
Section 2.02 Acceptance by the Trustee..................................................................45
Section 2.03 Representations and Warranties of the Sellers and Servicers...............................46
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans...................48
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions............................49
Section 2.06 Issuance of Certificates...................................................................49
Section 2.07 REMIC Provisions...........................................................................49
Section 2.08 Covenants of each Servicer.................................................................54
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans........................................................55
Section 3.02 Subservicing; Enforcement of the Obligations of Subservicers...............................56
Section 3.03 Notification of Adjustments................................................................57
Section 3.04 Trustee to Act as Servicer.................................................................57
Section 3.05 Collection of Mortgage Loans; Collection Accounts; Certificate Account.....................58
Section 3.06 Establishment of and Deposits to Escrow Accounts; Permitted Withdrawals from
Escrow Accounts; Payments of Taxes, Insurance and Other Charges............................61
Section 3.07 Access to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections................................................................................63
Section 3.08 Permitted Withdrawals from the Collection Accounts and Certificate Account.................63
Section 3.09 Maintenance of Hazard Insurance; Mortgage Impairment Insurance and Primary
Insurance Policy; Claims; Restoration of Mortgaged Property................................65
Section 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements..................................68
Section 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans............69
Section 3.12 Trustee to Cooperate; Release of Mortgage Files............................................73
Section 3.13 Documents, Records and Funds in Possession of a Servicer to be Held for the Trustee........74
Section 3.14 Servicing Fee..............................................................................74
Section 3.15 Access to Certain Documentation............................................................75
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TABLE OF CONTENTS
(Continued)
Page
Section 3.16 Annual Statement as to Compliance..........................................................75
Section 3.17 Annual Independent Public Accountants' Servicing Statement; Financial Statements...........75
Section 3.18 Maintenance of Fidelity Bond and Errors and Omissions Insurance............................76
Section 3.19 Special Serviced Mortgage Loans............................................................76
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01 Priorities of Distribution.................................................................78
Section 4.02 Allocation of Losses.......................................................................82
Section 4.03 Reserved...................................................................................83
Section 4.04 Monthly Statements to Certificateholders...................................................83
Section 4.05 Servicer to Cooperate......................................................................85
Section 4.06 Cross-Collateralization; Adjustments to Available Funds....................................85
ARTICLE V
ADVANCES BY A SERVICER
Section 5.01 Advances by a Servicer.....................................................................87
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates...........................................................................88
Section 6.02 Registration of Transfer and Exchange of Certificates......................................89
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates..........................................94
Section 6.04 Persons Deemed Owners......................................................................94
Section 6.05 Access to List of Certificateholders' Names and Addresses..................................94
Section 6.06 Maintenance of Office or Agency............................................................94
Section 6.07 Book-Entry Certificates....................................................................95
Section 6.08 Notices to Clearing Agency.................................................................95
Section 6.09 Definitive Certificates....................................................................96
ARTICLE VII
THE DEPOSITOR, THE SELLERS, THE SERVICERS AND THE SPECIAL SERVICER
Section 7.01 Liabilities of the Sellers, the Depositor , the Servicers and the Special Servicer........97
Section 7.02 Merger or Consolidation of the Depositor, the Sellers, the Servicers or the
Special Servicer...........................................................................97
Section 7.03 Limitation on Liability of the Depositor, the Sellers, the Servicers, the Special
Servicer and Others.......................................................................98
Section 7.04 Servicer and Special Servicer Not to Resign; Transfer of Servicing.........................98
Section 7.05 Sellers, Servicers and Special Servicer May Own Certificates...............................99
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TABLE OF CONTENTS
(Continued)
Page
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.........................................................................100
Section 8.02 Trustee to Act; Appointment of Successor..................................................101
Section 8.03 Notification to Certificateholders........................................................102
Section 8.04 Waiver of Events of Default...............................................................103
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties of Trustee.........................................................................104
Section 9.02 Certain Matters Affecting the Trustee.....................................................105
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans.....................................107
Section 9.04 Trustee May Own Certificates..............................................................107
Section 9.05 Trustee's Fees and Expenses...............................................................107
Section 9.06 Eligibility Requirements for Trustee......................................................108
Section 9.07 Resignation and Removal of Trustee........................................................108
Section 9.08 Successor Trustee.........................................................................109
Section 9.09 Merger or Consolidation of Trustee........................................................109
Section 9.10 Appointment of Co-Trustee or Separate Trustee.............................................109
Section 9.11 Office of the Trustee.....................................................................111
Section 9.12 Tax Return................................................................................111
Section 9.13 Periodic Filings..........................................................................111
Section 9.14 Determination of LIBOR....................................................................111
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Repurchase of all Mortgage Loans..........................112
Section 10.02 Procedure Upon Optional Termination.......................................................113
Section 10.03 Additional Termination Requirements.......................................................114
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.................................................................................115
Section 11.02 Recordation of Agreement; Counterparts....................................................116
Section 11.03 Governing Law.............................................................................116
Section 11.04 Intention of Parties......................................................................116
Section 11.05 Notices...................................................................................118
Section 11.06 Severability of Provisions................................................................118
Section 11.07 Limitation on Rights of Certificateholders................................................119
Section 11.08 Certificates Nonassessable and Fully Paid.................................................119
Section 11.09 Protection of Assets......................................................................120
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TABLE OF CONTENTS
(Continued)
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EXHIBITS
Exhibit A: Form of Class I-A Certificate..............................................................A-1
Exhibit B: Form of Class II-A-1 Certificate...........................................................B-1
Exhibit C: Form of Class I-B-[ ] Certificate..........................................................C-1
Exhibit D: Form of Class AR Certificate...............................................................D-1
Exhibit E: Form of Class I-X Certificate..............................................................E-1
Exhibit F: Form of Class I-P Certificate..............................................................F-1
Exhibit G: Form of Class PP Certificate...............................................................G-1
Exhibit H: Form of Servicer Information...............................................................H-1
Exhibit I: Form of Initial Certification of Trustee...................................................I-1
Exhibit J: Form of Final Certification of Trustee.....................................................J-1
Exhibit K: Form of Request for Release................................................................K-1
Exhibit L: Form of Transferor Certificate.............................................................L-1
Exhibit M-1: Form of Investment Letter................................................................M-1-1
Exhibit M-2: Form of Rule 144A Letter.................................................................M-2-1
Exhibit N: Form of Investor Transfer Affidavit and Agreement..........................................N-1
Exhibit O: Form of Transfer Certificate...............................................................O-1
Exhibit P: Form of TGIC PMI Policy....................................................................P-1
Exhibit Q-1: Form of Escrow Account Certificate.......................................................Q-1-1
Exhibit Q-2: Form of Escrow Account Letter............................................................Q-2-1
SCHEDULES
Schedule IA: Mortgage Loan Schedule - DLJ Loans........................................................IA-1
Schedule IB: Mortgage Loan Schedule - WMMSC Loans......................................................IB-1
Schedule II: Representations and Warranties of the Sellers/Servicers...................................II-1
Schedule III: Representations and Warranties as to the Mortgage Loans..................................III-1
Schedule IV: TGIC Mortgage Loans.......................................................................IV-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2001,
is hereby executed by and between CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation, as depositor (the "Depositor"), DLJ
Mortgage Capital, Inc. ("DLJMC"), a Delaware Corporation, in its capacity as a
seller (a "Seller"), WASHINGTON MUTUAL MORTGAGE SECURITIES CORP. ("WMMSC"), a
Delaware corporation, in its capacity as a seller (a "Seller" and together
with DLJMC in its role as a seller, the "Sellers") and as a servicer (a
"Servicer"), VESTA SERVICING, L.P., a Delaware limited partnership, in its
capacity as a servicer (a "Servicer" and together with WMMSC in its role as a
servicer, the "Servicers"), and as special servicer (the "Special Servicer"),
and Bank One, National Association, a national banking association, as trustee
(the "Trustee"). Capitalized terms used in this Agreement and not otherwise
defined will have the meanings assigned to them in Article I below.
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. As provided herein, the Trustee
will elect that the Trust Fund be treated for federal income tax purposes as
comprising three real estate mortgage investment conduits (each a "REMIC" or,
in the alternative, the "Lower Tier REMIC," the "Middle Tier REMIC," and the
"Master REMIC," respectively). Each Certificate, other than the Class A-R
Certificate, will represent ownership of one or more regular interests in the
Master REMIC for purposes of the REMIC Provisions. The Class A-R Certificate
represents ownership of the sole class of residual interest in the Lower Tier
REMIC, the Middle Tier REMIC, and the Master REMIC. The Master REMIC will hold
as assets the several classes of uncertificated Middle Tier REMIC Interests
(other than the Class MTR-AR Interest). The Middle Tier REMIC will hold as
assets the several classes of uncertificated Lower Tier REMIC Interests other
than the Class LTR-AR Interest). Each Lower Tier REMIC Interest (other than
the Class LTR-AR Interest) is hereby designated as a regular interest in the
Lower Tier REMIC. Each Middle Tier REMIC Interest (other than the Class MTR-AR
Interest) is hereby designated as a regular interest in the Middle Tier REMIC.
The Lower Tier REMIC will hold as assets all property of the Trust Fund. The
latest possible maturity date of all REMIC regular interests created herein
shall be the Latest Possible Maturity Date.
The following table specifies the class designation, interest rate,
and principal amount for each class of Lower Tier REMIC Interests:
Lower Tier REMIC Interests
Lower Tier REMIC Class Initial Class
Designation Principal Balance Class Interest Rate
------------------------- ---------------------- -----------------------
LTR-I-P&I $219,348,638 (1) 7.75%
------------------------- ---------------------- -----------------------
LTR-I-PO $19,781,350 (2)
------------------------- ---------------------- -----------------------
LTR-I-IP $8,269,788 (2)
------------------------- ---------------------- -----------------------
LTR-I-X (3) (3)
------------------------- ---------------------- -----------------------
LTR-I-PP (4) (4)
------------------------- ---------------------- -----------------------
1
Lower Tier REMIC Class Initial Class
Designation Principal Balance Class Interest Rate
------------------------- ---------------------- -----------------------
LTR-II-P&I $57,521,925 (5)
------------------------- ---------------------- -----------------------
LTR-A-R (6) (6)
------------------------- ---------------------- -----------------------
(1) The Initial Principal Balance of the Class LTR-I-P&I Interest is (a) the
principal balance of the Group I Mortgage Loans minus (b) the amount of the
Class LTR-I-PO Interest and the Class LTR-I-IP Interest.
(2) This Class of Lower Tier Interest does not pay any interest.
(3) The Class LTR-I-X Interest is entitled to receive on each Distribution
Date a specified portion of the interest payable on each Premium Rate Mortgage
loans. Specifically, for each related Distribution Date, the Class LTR-I-X
Interest is entitled to the interest accruals on each Premium Rate Mortgage
loan in excess of 7.75% per annum.
(4) The Class LTR-PP Interest is entitled to receive on each Distribution Date
any amounts received representing prepayment penalties on the Prepayment
Penalty Mortgage Loans.
(5) The Initial Principal Balance of the Class LTR-II-P&I Interest is the
principal balance of the Group II Mortgage Loans.
(6) The Class LTR-A-R Interest is the sole class of residual interest in
the Lower Tier REMIC. It does not pay any interest or principal.
On each Distribution Date, the Trustee will allocate the losses on,
and distribute the principal on the Group I Mortgage Loans among the Class
LTR-I-PO Interest, the Class LTR-I-IP Interest, and the Class LTR-I-P&I
Interest, in the same manner that such items are allocated to or distributed,
respectively among the Class I-A-3 Certificates, the Class I-P Certificates
and the remaining Group I Certificates.
On each Distribution Date, the Trustee shall allocate the losses on,
and distribute the principal on the Group II Mortgage Loans to the Class
LTR-II-P&I Interest.
On each Distribution Date, interest is payable on each Lower Tier
REMIC Interest at the rates shown above.
Middle Tier REMIC Interests
---------------------------
Middle Tier REMIC Class Initial Class Class Interest Rate Corresponding Class
Designation Principal Balance of Certificates
------------------------- ---------------------- ----------------------- ----------------------
MTR I-A-1 $204,407,274 8.50% Class I-A-1
Class I-A-2 (1)
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-A-3 $19,781,350(2) (3) Class I-A-3
------------------------- ---------------------- ----------------------- ----------------------
2
Middle Tier REMIC Class Initial Class Class Interest Rate Corresponding Class
Designation Principal Balance of Certificates
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-P $8,269,788(4) (3) Class I-P
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-X (5) (5) Class I-X
------------------------- ---------------------- ----------------------- ----------------------
MTR-PP $100 $100 7.75% Class PP
------------------------- ---------------------- ----------------------- ----------------------
MTR-AR$100 $100 7.75% Class AR
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-B-1 $8,842,729 (6) Class I-B-1
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-B-2 $2,286,912 (6) Class I-B-2
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-B-3 $1,524,608 (6) Class I-B-3
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-B-4 $762,304 (6) Class I-B-4
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-B-5 $457,382 (6) Class I-B-5
------------------------- ---------------------- ----------------------- ----------------------
MTR-I-B-6 $1,067,229(7) (6) Class I-B-6
------------------------- ---------------------- ----------------------- ----------------------
MTR-II-A-1 $57,521,925 (8) Class II-A-1
------------------------- ---------------------- ----------------------- ----------------------
MTR-PP (9) (9) Class PP
------------------------- ---------------------- ----------------------- ----------------------
MTR-AR (10) (10) Class AR
------------------------- ---------------------- ----------------------- ----------------------
(1) The Class I-A-2 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class MTR-I-A-1
Interest. Specifically, for each related Distribution Date, the Class I-A-2
Certificates are entitled to interest accruals on the Class MTR-I-A-1 Interest
at a rate of 7.850% minus LIBOR but no less than 0.00% per annum.
(2) This Class of Middle Tier Interest corresponds to the Class LTR-I-PO
Interest.
(3) This Class of Middle Tier Interest does not pay any interest.
(4) This Class of Middle Tier Interest corresponds to the Class LTR-I-IP
Interest.
(5) This Class of Middle Tier Interest corresponds to the Class LTR-I-IP
Interest. It does not pay any principal.
(6) The interest rate on this class of Middle Tier Interest for any
Distribution Date will be a per annum rate equal to 7.75% capped at a rate
equal to the quotient, expressed as a percentage, of (a) the sum of (i) 7.75%
multiplied by the excess of the aggregate of the Class Certificate Balances of
the Class I-A, Class I-P, Class AR and Class PP Certificates over the
aggregate Stated Principal Balance of the Group I Mortgage Loans and (ii) the
weighted average net mortgage rate of the Group II Mortgage Loans multiplied
by the excess of the Class II-A-1 Certificate Balance over the aggregate
Stated Principal Balance of the Group II Mortgage Loans over (b) the sum of
(i) the excess of the aggregate of the Class Certificate Balances of the Class
I-A, Class I-P, Class AR and Class PP Certificates over the Stated Principal
Balance of the Group I Mortgage Loans and (ii) the excess of the Class II-A-1
Certificate Balance over the Stated Principal Balance of the Group II Mortgage
Loans.
(7) The initial principal balance of the Class MTR-I-B-6 Interest is meant to
equal (a) the aggregate the principal balance of the Group I Mortgage Loans
minus the aggregate Class
3
Certificate Balance of all Group I Certificate Classes that are senior to
the Class I-B-6 Certificate.
(8) The interest rate on this class of Middle Tier Interest for any
Distribution Date will be a per annum rate equal to the weighted average net
mortgage rate of the Group II Mortgage Loans capped at a rate equal to the
quotient, expressed as a percentage, of (a) the sum of (i) the weighted
average net mortgage rate of the Group II Mortgage Loans multiplied the
aggregate Stated Principal Balance of the Group II Mortgage Loans and (ii)
7.75% multiplied by the excess of the aggregate Stated Principal Balance of
the Group I Mortgage Loans over the aggregate of the Class Certificate
Balances of the Group I Certificates over (b) the sum of (i) the aggregate
Stated Principal Balance of the Group II Mortgage Loans and (ii) the excess of
the aggregate Stated Principal Balance of the Group I Mortgage Loans over
aggregate of the Class Certificate Balances of the Group I Certificates.
(9) The payments on the Class MTR-PP Interest are allocated to the Class
PP Certificate.
(10) This Middle Tier Interest is the sole class of residual interest in
the Middle REMIC. It pays no interest or principal.
On each Distribution Date, the Trustee shall allocate the losses on,
and distribute the principal on the Lower Tier Interests among the Middle Tier
Regular Interests in the same manner that such items are allocated to or
distributed among the corresponding Certificates.
On each Distribution Date, interest is payable on each Middle Tier
REMIC Interest at the rates shown above.
The following table sets forth characteristics of the Certificates in
the Master REMIC, each of which Certificates, except for the Class AR
Certificates, is hereby designated as a "regular interest" in the Master
REMIC, together with the minimum denominations in which such Classes shall be
issuable (except that one Certificate of each Class of Certificates may be
issued in a different amount and, in addition, one Residual Certificate
representing the Tax Matters Person Certificate may be issued in a different
amount):
Master REMIC Class Initial Principal Balance Pass-Through Rate Minimum Denomination or
Designation Percentage Ownership
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-A-1 $ 204,407,274.00 Variable (1) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-A-2 $ 204,407,274.00(2) Variable (3) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-A-3 $ 19,781,350.00 (4) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-X $ 22,328,723.00(5) 7.75% $100,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-P $ 8,269,788.00 (6) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class PP $ 100 7.75% 20%
------------------------------- ---------------------------------- ------------------- -------------------------------
Class AR $ 100 7.75% 20%
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-B-1 $ 8,842,729.00 7.75% (7) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-B-2 $ 2,286,912.00 7.75% (7) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-B-3 $ 1,524,608.00 7.75% (7) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-B-4 $ 762,304.00 7.75%(7) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-B-5 $ 457,382.00 7.75% (7) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class I-B-6 $ 1,067,229.28 7.75% (7) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
Class II-A-1 $ 57,521,925.00 Variable (8) $25,000
------------------------------- ---------------------------------- ------------------- -------------------------------
4
(1) The initial pass-through rate on the Class I-A-1 Certificates is 2.7600%
per annum. After the first Distribution Date, the per annum pass-through rate
on these Certificates will be equal to LIBOR plus 0.650%, but no more than
8.50% per annum.
(2) The Class I-A-2 Certificates will not receive any distributions of
principal, but will accrue interest on the Class I-A-2 Notional Amount. The
initial Class I-A-2 Notional Amount will initially equal approximately
$204,407,274 and will on each subsequent Distribution Date equal the Class
Principal Balance of the Class I-A-1 Certificates immediately before that
Distribution Date.
(3) The initial pass-through rate on the Class I-A-2 Certificates is 5.7400%
per annum. After the first Distribution Date, the per annum pass-through rate
on these Certificates will be equal to 7.850% minus LIBOR, but not less than
0.00% per annum.
(4) This class of Certificates is not entitled to payments in respect
of interest.
(5) The Class I-X Certificates will not receive any distributions of
principal, but will accrue interest on the Class I-X Notional Amount. For any
Distribution Date, the Class I-X Notional Amount will equal the product of (x)
the aggregate Stated Principal Balance, as of the second preceding Due Date
after giving effect to scheduled payments for that Due Date, whether or not
received, or for the initial Distribution Date, as of the Cut-off Date, of the
Premium Rate Mortgage Loans with respect to Loan Group I; and (y) a fraction,
the numerator of which is the weighted average of the Stripped Interest Rates
for the Premium Rate Mortgage Loans in Loan Group I as of that Due Date and
the denominator of which is 7.75%. The Class I-X Notional Amount as of the
Closing Date will be approximately $22,328,723.00.
(6) This Class of Certificates is not entitled to payments in respect
of interest.
(7) The initial pass-through rate for the Class I-B Certificates will equal
7.75%. If the Class Principal Balance of the Class I-B Certificates exceeds
the aggregate Stated Principal Balance of the Group I Mortgage Loans, then the
pass-through rate for the Class I-B Certificates will equal, on any related
Distribution Date, the quotient, expressed as a percentage, of (a) the sum of
(i) the product of (x) 7.75% and (y) the Subordinate Component Balance for
Loan Group I immediately before that Distribution Date, and (ii) the product
of (x) the weighted average net Mortgage Rate of the Group II Mortgage Loans
and (y) the Subordinate Component Balance for Loan Group II immediately before
that Distribution Date divided by (b) the sum of the Subordinate Component
Balances for Loan Group I and Loan Group II immediately before that
Distribution Date.
(8) The initial pass-through rate of the Class II-A-1 Certificates will be
approximately 6.9762% per annum. The pass-through rate of the Class II-A-1
Certificates will equal the weighted average (by principal balance) of the net
Mortgage Rates on the Group II Mortgage Loans as of the second preceding Due
Date, or with respect to the initial Distribution Date, as of the Cut-off
Date, but may be subject to adjustment under limited circumstances. If the
Class Principal Balance of the Class II-A-1 Certificates exceeds the aggregate
Stated Principal Balance of the Group II Mortgage Loans, then the pass-through
rate for the Class II-A-1 Certificates will equal, on any related Distribution
Date, the quotient, expressed as a percentage, of (a) the sum of
5
(i) the product of (x) the weighted average net Mortgage Rate of the
Group II Mortgage Loans and (y) the Stated Principal Balance of the Group II
Mortgage Loans immediately before that Distribution Date, and (ii) the product
of (x) 7.75% and (y) the excess of the Stated Principal Balance for Loan Group
I over the Class Principal Balance of the Group I Certificates immediately
before that Distribution Date divided by (b) the sum of (i) the aggregate
Stated Principal Balance of the Group II Mortgage Loans and (ii) the
Subordinate Component Balance for Loan Group I immediately before that
Distribution Date.
6
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates.......................... All Classes of Certificates other than the Physical Certificates.
Class A Certificates:............................ Class I-A-1, Class I-A-2, Class I-A-3, Class II-A-1 and Class AR
Certificates.
ERISA-Restricted Certificates................... The Residual Certificates, the Subordinate Certificates and any
Certificates that do not satisfy the applicable ratings requirement
under the Underwriter's Exemption.
Group I Certificates............................. Group I-A, Group I-B, Class I-X, Class I-P, Class PP and Class AR
Certificates.
Group I-A Certificates........................... Class I-A-1, Class I-A-2 and Class I-A-3 Certificates.
Group I-B Certificates........................... Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4, Class I-B-5
and Class I-B-6 Certificates.
Group I Senior Certificates...................... Class I-A-1, Class I-A-2, Class I-A-3, Class I-X, Class I-P, Class PP
and Class AR Certificates.
Group II Certificates............................ Class II-A-1 Certificates.
Interest Only Certificates....................... Class I-A-2 and Class I-X Certificates.
LIBOR Certificates............................... Class I-A-1 and Class I-A-2 Certificates.
Notional Amount Certificates..................... The Interest Only Certificates.
Offered Certificates............................. All Classes of Certificates other than the Private Certificates.
Prepayment Penalty Certificates.................. Class PP Certificates
Principal Only Certificates...................... Class I-P and Class I-A-3 Certificates.
Private Certificates............................. Class I-B-4, Class I-B-5 and Class I-B-6 Certificates.
Physical Certificates............................ Class AR Certificates, Class PP Certificates and the Private Certificates.
Rating Agencies.................................. Xxxxx'x and Fitch.
7
Regular Certificates............................. All Classes of Certificates other than the Class AR Certificates.
Residual Certificates............................ Class AR Certificates.
Senior Certificates.............................. Group I-A, Group II, Class I-X, Class I-P, Class PP and Class AR
Certificates.
Subordinate Certificates......................... Group I-B Certificates.
Senior Subordinate Certificates.................. Class I-B-1, Class I-B-2 and Class I-B-3 Certificates.
Junior Subordinate Certificates.................. Class I-B-4, Class I-B-5 and Class I-B-6 Certificates.
All covenants and agreements made by the Depositor herein are for the
benefit and security of the Certificateholders. The Depositor is entering into
this Agreement, and the Trustee is accepting the trusts created hereby and
thereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged. The principal balance of the Mortgage Loans as
of the Cut-off Date is $304,921,702.06.
8
The parties hereto intend to effect an absolute sale and assignment
of the Mortgage Loans to the Trustee for the benefit of Certificateholders
under this Agreement. However, the Depositor and DLJMC will hereunder
absolutely assign and, as a precautionary matter grant a security interest, in
and to its rights, if any, in the related Mortgage Loans to the Trustee on
behalf of Certificateholders to ensure that the interest of the
Certificateholders hereunder in the Mortgage Loans is fully protected.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicers, the Special Servicer, the Sellers and the Trustee
agree as follows:
9
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Accrual Period: For any interest bearing Class of Certificates and
any Distribution Date, the calendar month immediately preceding the related
Distribution Date.
Adjusted Net Mortgage Rate: As to each Mortgage Loan, and at any
time, the per annum rate equal to the Mortgage Rate for such Mortgage Loan
less the related Expense Fee Rate.
Advance: The payment required to be made by a Servicer with respect
to any Distribution Date pursuant to Section 5.01.
Adverse REMIC Event: As defined in Section 2.07(f).
Adjustment Date: With respect to each adjustable-rate Mortgage Loan,
each adjustment date on which the Mortgage Rate thereon changes pursuant to
the related Mortgage Note. The first Adjustment Date following the Cut-off
Date as to each such Mortgage Loan is set forth in the Mortgage Loan Schedule.
Aggregate Loan Balance: As of any date of determination will be equal
to the aggregate of the Stated Principal Balances of the Mortgage Loans as of
the last day of the prior month.
Aggregate Loan Group Balance: As to any Loan Group and as of any date
of determination will be equal to the aggregate of the Stated Principal
Balances of the Mortgage Loans in that Loan Group as of the last day of the
prior month.
Aggregate Subordinate Percentage: For any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the aggregate
Class Principal Balance of the Class I-B Certificates immediately prior to
that Distribution Date and the denominator of which is the aggregate Stated
Principal Balance of the Group I and Group II Mortgage Loans immediately prior
to that Distribution Date.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans, other
than Servicing Fees, including but not limited to, late charges, fees received
with respect to checks or
10
bank drafts returned by the related bank for non-sufficient funds,
assumption fees, optional insurance administrative fees and all other
incidental fees and charges. With respect to the WMMSC Serviced Loans,
Ancillary Income will also include all Prepayment Penalities and prepayment
fees received on the WMMSC Serviced Loans.
Appraised Value: The appraised value of the Mortgaged Property based
upon the appraisal made for the originator at the time of the origination of
the related Mortgage Loan or the sales price of the Mortgaged Property at the
time of such origination, whichever is less, or with respect to any Mortgage
Loan that represents a refinancing, the lower of the appraised value at
origination or the appraised value of the Mortgaged Property based upon the
appraisal made at the time of such refinancing.
Assignment and Assumption Agreement: That certain assignment and
assumption agreement dated as of November 1, 2001, by and between DLJ Mortgage
Capital, Inc., as assignor and the Depositor, as assignee, relating to the
Mortgage Loans.
Available Distribution Amount: With respect to any Distribution Date
and each of Group I and Group II, the sum of: (i) all amounts in respect of
Scheduled Payments (net of the related Servicing Fees) due on the related Due
Date for the month in which such Distribution Date occurs and received prior
to the related Determination Date on the related Mortgage Loans, together with
any Monthly Advances including advances from the Simple Interest Excess
Sub-Account, for the related Mortgage Loans, if any; (ii) all Insurance
Proceeds (to the extent not applied to the restoration of the Mortgaged
Property or released to the Mortgagor in accordance with the applicable
Servicer's Accepted Servicing Standards) and all Liquidation Proceeds received
during the calendar month preceding the month of that Distribution Date on the
related Mortgage Loans, in each case net of unreimbursed Liquidation Expenses
incurred with respect to such Mortgage Loans, if any; (iii) all Principal
Prepayments received during the related Prepayment Period on the related
Mortgage Loans, excluding Prepayment Penalties and premiums; (iv) amounts
received with respect to such Distribution Date as the Substitution Adjustment
Amount or purchase price in respect of a Mortgage Loan in the related Loan
Group repurchased by the applicable Seller or a Servicer as of such
Distribution Date, in the case of clauses (i) through (iv) above reduced by
amounts in reimbursement for Monthly Advances previously made and other
amounts as to which the Servicer is entitled to be reimbursed pursuant to
Section 3.08 in respect of Mortgage Loans in Loan Group I and Loan Group II,
(v) any amounts payable as Compensating Interest by a Servicer with respect to
the Mortgage Loans in Loan Group I and Loan Group II on such Distribution
Date, minus (vi) in the case of clauses (i) through (iv) above, the amounts to
which the Servicers for such group are entitled under this Agreement,
including accrued and unpaid Servicing Fees, unreimbursed advances and certain
expenses, minus (vii) the TGIC Fee, as applicable, on the TGIC Mortgage Loans.
Balloon Loan: Any Mortgage Loan which, by its terms, does not fully
amortize the principal balance thereof by its stated maturity and thus
requires a payment at the stated maturity larger than the monthly payments due
thereunder.
Bankruptcy Code: The United States Bankruptcy Code, as amended from
time to time (11 U.S.C.ss.ss.101 et seq.).
11
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: A Deficient Valuation or Debt Service Reduction.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss
Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to the Group I Certificates and Group II Certificates since the
Cut-off Date and (ii) any permissible reductions in the Bankruptcy Loss
Coverage Amount as evidenced by a letter of each Rating Agency to the Trustee
to the effect that any such reduction will not result in a downgrading of, or
otherwise adversely affect, the then current ratings assigned to such Classes
of Certificates rated by it.
Beneficial Holder: A Person holding a beneficial interest in any
Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate.
Book-Entry Certificates: As specified in the Preliminary Statement.
Book-Entry Form: Any Certificate held through the facilities of the
Depository.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in New York or the state in which any
Servicer or the Corporate Trust Office are located are authorized or obligated
by law or executive order to be closed.
Certificate: Any Certificates 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 Eligible Account created and
maintained with the Trustee, or any other bank or trust company acceptable to
the Rating Agencies which is incorporated under the laws of the United States
or any state thereof pursuant to Section 3.05, which account shall bear a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Trustee on behalf of the Certificateholders or
any other account serving a similar function acceptable to the Rating
Agencies. Funds in the Certificate Account may (i) be held uninvested without
liability for interest or compensation thereon or (ii) be invested at the
direction of the Trustee in Eligible Investments and reinvestment earnings
thereon (net of investment losses) shall be paid to the Trustee. Funds
deposited in the Certificate Account (exclusive of amounts permitted to be
withdrawn pursuant to Section 3.08(b)(i) and (ii)) shall be held in trust for
the Certificateholders.
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof minus
all distributions of principal previously made with respect thereto and
reduced by any Realized Losses allocated to such Class on prior Distribution
Dates pursuant to Section 4.02.
Certificate Group: Any of Certificate Group I or Certificate Group
II, as applicable.
12
Certificate Group I: Any of the Certificates relating to Loan Group I
with a Class designation beginning with "I," "PP" and "AR."
Certificate Group II: Any of the Certificates relating to Loan Group
II with a Class designation beginning with "II."
Certificate Register: The register maintained pursuant to Section
6.02(a) hereof.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary Statement.
Class Interest Shortfall: As to any Distribution Date and Class of
Group I Certificates and Group II Certificates, the amount by which the amount
described in clause (i) of the definition of Interest Distribution Amount for
such Class, exceeds the amount of interest actually distributed on such Class
on such Distribution Date.
Class I-A-2 Notional Amount: With respect to any Distribution Date,
the Class Principal Balance of the Class I-A-1 Certificates immediately prior
to that Distribution Date.
Class I-P Deferred Amount: The Class I-P Fraction of any Realized
Loss on a Class I-P Mortgage Loan, other than an Excess Loss, allocated to the
Class I-P Certificates on or prior to the applicable Credit Support Depletion
Date and not previously reimbursed. A payment made in respect of the Class I-P
Deferred Amount shall not reduce the Class Principal Balance of the Class I-P
Certificates.
Class I-P Mortgage Loan: Any group I mortgage loan with a net
mortgage rate of less than 7.75% per annum.
Class I-P Principal Distribution Amount: For each distribution date,
a portion of the Available Funds for the Group I Mortgage Loans attributable
to principal received on or in respect of a Class I-P Mortgage Loan, equal to
the amount of principal so attributable multiplied by the applicable Class I-P
Fraction plus, prior to the applicable Credit Support Depletion Date and to
the extent of any amounts otherwise available to be paid as principal to the
Group I-B Certificates, the Class I-P Deferred Amount on such date.
Class I-P Fraction: For any Class I-P Mortgage Loan, a fraction, the
numerator of which is 7.75% minus the net mortgage rate on that Class I-P
Mortgage Loan and the denominator of which is 7.75%.
Class I-X Notional Amount: With respect to any Distribution Date, the
notional amount of the Class I-X Certificates for any distribution date will
equal the product of: (i) the aggregate Stated Principal Balance, as of the
second preceding due date after giving effect to scheduled payments for that
due date, whether or not received, or for the initial distribution date,
13
as of the cut-off date, of the Premium Rate Mortgage Loans; and (ii) a
fraction, the numerator of which is the weighted average of the Stripped
Interest Rates for such Premium Rate Mortgage Loans as of that due date and
the denominator of which is 7.75%.
Class Notional Amount: Any of the Class I-A-2 Notional Amount or
Class I-X Notional Amount, as applicable.
Class Principal Balance: With respect to any Class and as to any date
of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest-bearing Group I Certificates and Group II Certificates, the amount
by which the aggregate Class Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount distributed on such Class on prior
Distribution Dates pursuant to clause (ii) of the definition of Interest
Distribution Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
which initially shall be DTC.
Closing Date: November 30, 2001.
Code: The Internal Revenue Code of 1986, as amended.
Collection Account: The accounts established and maintained by a
Servicer in accordance with Section 3.05.
Collection Period: With respect to each Distribution Date, the period
commencing on the second day of the month preceding the month of the
Distribution Date and ending on the first day of the month of the Distribution
Date.
Compensating Interest Payment: For any Distribution Date and the
WMMSC Serviced Mortgage Loans, the lesser of (i) the sum of (a) one twelfth
(1/12) of 0.04% of the aggregate Stated Principal Balance of the WMMSC
Serviced Mortgage Loans as of the related Due Date for such Distribution Date,
(b) Payoff Earnings in respect of the WMMSC Serviced Mortgage Loans for such
Distribution Date and (c) aggregate Payoff Interest in respect of the WMMSC
Serviced Mortgage Loans for such Distribution Date and (ii) the aggregate
Prepayment Interest Shortfall allocable to Payoffs for the WMMSC Serviced
Mortgage Loans. For any Distribution Date and the Vesta Serviced Mortgage
Loans, the lesser of (i) one-half of the aggregate Servicing Fee payable to
Vesta in respect of the Vesta Serviced Mortgage Loans for such Distribution
Date and (ii) the aggregate Prepayment Interest Shortfall with respect to the
Vesta Serviced Mortgage Loans.
Corporate Trust Office: The designated office of the Trustee at which
at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at 00 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 Attention: Corporate Trust Administration and except for purposes of
Section 6.06, such term shall mean the office or agency of the Trustee in the
00
Xxxxxxx xx Xxxxxxxxx, the City of New York, which office at the date hereof is
located at 00 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Credit Support Depletion Date: The first Distribution Date on which
the aggregate Class Principal Balances of the Group I-B Certificates has been
or will be reduced to zero.
Curtailment: Any payment of principal on a Mortgage Loan, made by or
on behalf of the related Mortgagor, other than a Scheduled Payment, a prepaid
Scheduled Payment or a Payoff, which is applied to reduce the outstanding
Stated Principal Balance of the Mortgage Loan. Custodial Agreement: The
Custodial Agreement, dated as of the date hereof, among the Custodian and the
Trustee.
Custodian: A custodian which is appointed pursuant to a Custodial
Agreement. Any Custodian so appointed shall act as agent on behalf of the
Trustee, and shall be compensated by the Trustee.
Cut-off Date: November 1, 2001.
Cut-off Date Pool Principal Balance: $304,921,702.06.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to a Mortgage Loan in Loan Group
I or Loan Group II, a reduction by a court of competent jurisdiction in a
proceeding under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan which became final and non-appealable, except such a reduction
resulting from a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Deficient Valuation: With respect to any Mortgage Loan in Loan Group
I and Loan Group II, a valuation by a court of competent jurisdiction of the
Mortgaged Property in an amount less than the then outstanding indebtedness
under the Mortgage Loan, or that results in a permanent forgiveness of
principal, which valuation in either case results from a proceeding under the
Bankruptcy Code.
Definitive Certificate: As defined in Section 6.07.
Deleted Mortgage Loan: As defined in Section 2.03.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate"
the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
15
Depositor: Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
Depository Agreement: The Letter of Representation dated as of the
Closing Date by and among DTC, the Depositor and the Trustee.
Determination Date: With respect to each Distribution Date, the 15th
day of the calendar month in which such Distribution Date occurs or, if such
15th day is not a Business Day, the Business Day immediately preceding such
Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class AR Certificate by such Person may cause the
REMIC or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class AR Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
Distribution Date: The 25th day of any month, or if such 25th day is
not a Business Day, the Business Day immediately following such 25th day,
commencing on December 26, 2001.
DLJ Loans: The Mortgage Loans identified as such on the Mortgage Loan
Schedule for which DLJMC is the applicable Seller.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation, and its
successors and assigns.
DTC: The Depository Trust Company.
Due Date: With respect to each Mortgage Loan and any Distribution
Date, the date on which Scheduled Payments on such Mortgage Loan are due which
is either the first day of the month of such Distribution Date, or if
Scheduled Payments on such Mortgage Loan are due on a day other than the first
day of the month, the date in the calendar month immediately preceding the
Distribution Date on which such Scheduled Payments are due, exclusive of any
days of grace.
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Eligible Account: Either (i) an account or accounts maintained with
any federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short term debt obligations of
such holding company) have been rated by each Rating Agency in its highest
short-term rating category, or (iii) a segregated trust account or accounts
(which shall be a "special deposit account") maintained with the Trustee or
any other federal or state chartered depository institution or trust company,
acting in its fiduciary capacity, in a manner acceptable to the Rating
Agencies. Eligible Accounts may bear interest.
Eligible Institution: An institution having the highest short-term
debt rating, and one of the two highest long-term debt ratings of the Rating
Agencies or the approval of the Rating Agencies.
Eligible Investments: Any one or more of the obligations and
securities listed below:
1. direct obligations of, and obligations fully guaranteed by, the
United States of America, or any agency or instrumentality of the
United States of America the obligations of which are backed by
the full faith and credit of the United States of America; or
obligations fully guaranteed by, the United States of America;
the FHLMC, FNMA, the Federal Home Loan Banks or any agency or
instrumentality of the United States of America rated AA or
higher by the Rating Agencies;
2. federal funds, demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository
institution or trust company incorporated or organized under the
laws of the United States of America or any state thereof and
subject to supervision and examination by federal and/or state
banking authorities, so long as at the time of such investment or
contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt obligations of such holding company) are rated in
one of two of the highest ratings by each of the Rating Agencies,
and the long-term debt obligations of such depository institution
or trust company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding
company, the long-term debt obligations of such holding company)
are rated in one of two of the highest ratings, by each of the
Rating Agencies;
3. repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered
into with a depository institution or trust company (acting as a
principal) rated A or higher by the Rating Agencies; provided,
however, that collateral transferred pursuant to such
17
repurchase obligation must be of the type described in clause (i)
above and must (A) be valued daily at current market price plus
accrued interest, (B) pursuant to such valuation, be equal, at
all times, to 105% of the cash transferred by the Trustee in
exchange for such collateral, and (C) be delivered to the Trustee
or, if the Trustee is supplying the collateral, an agent for the
Trustee, in such a manner as to accomplish perfection of a
security interest in the collateral by possession of certificated
securities;
4. securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of
America or any state thereof which has a long-term unsecured debt
rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
5. commercial paper having an original maturity of less than 365
days and issued by an institution having a short-term unsecured
debt rating in the highest available rating category of each of
the Rating Agencies at the time of such investment;
6. a guaranteed investment contract approved by each of the Rating
Agencies and issued by an insurance company or other corporation
having a long-term unsecured debt rating in the highest available
rating category of each of the Rating Agencies at the time of
such investment;
7. money market funds (which may be 12b-1 funds as contemplated
under the rules promulgated by the Securities and Exchange
Commission under the Investment Company Act of 1940) having
ratings in the highest available rating category of Moody's and
one of the two highest available rating categories of S&P at the
time of such investment (any such money market funds which
provide for demand withdrawals being conclusively deemed to
satisfy any maturity requirements for Eligible Investments set
forth herein) including money market funds of a Servicer or the
Trustee and any such funds that are managed by a Servicer or the
Trustee or their respective Affiliates or for a Servicer or the
Trustee or any Affiliate of either acts as advisor, as long as
such money market funds satisfy the criteria of this subparagraph
(vii); and
8. such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies, result in
the downgrading or withdrawal of the Ratings of the Certificates;
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
18
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements (without regard
to the ratings requirement) of an Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The separate account or accounts created and
maintained by a Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, mortgage insurance premiums, fire and hazard
insurance premiums, and any other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or any
other related document.
Event of Default: As defined in Section 8.01 hereof.
Excess Loss: The amount of any (i) Fraud Loss on a Mortgage Loan in
Loan Group I and Loan Group II realized after the Fraud Loss Coverage
Termination Date, (ii) Special Hazard Loss on a Mortgage Loan in Loan Group I
and Loan Group II realized after the Special Hazard Coverage Termination Date
or (iii) Bankruptcy Loss on a Mortgage Loan in Loan Group I and Loan Group II
realized after the Bankruptcy Coverage Termination Date.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Servicing Fee Rate and the TGIC Fee Rate, as applicable.
Expense Fees: As to each Mortgage Loan, the sum of the related
Servicing Fee and the TGIC Fee, as applicable.
Extraordinary Events: Any of the following conditions with respect to
a Mortgaged Property or Mortgage Loan in Loan Group I or Loan Group II causing
or resulting in a loss which causes the liquidation of such Mortgage Loan: (a)
losses that are of the type that would be covered by the fidelity bond and the
errors and omissions insurance policy required to be maintained pursuant to
Section 3.18 but are in excess of the coverage maintained thereunder; (b)
nuclear reaction or nuclear radiation or radioactive contamination, all
whether controlled or uncontrolled, and whether such loss be direct or
indirect, proximate or remote or be in whole or in part caused by, contributed
to or aggravated by a peril covered by the definition of the term "Special
Hazard Loss"; (c) hostile or warlike action in time of peace or war, including
action in hindering, combating or defending against an actual, impending or
expected attack: (i) by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using military, naval or air forces;
or (ii) by military, naval or air forces; or (iii) by an agent of any such
government, power, authority or forces; (d) any weapon of war employing atomic
fission or radioactive force whether in time of peace or war; or (e)
insurrection, rebellion, revolution, civil war, usurped power or action taken
by governmental authority in hindering, combating or defending against such an
occurrence, seizure or destruction under quarantine or customs regulations,
confiscation by order of any government or public authority; or risks of
contraband or illegal transportation or trade.
19
Extraordinary Losses: Any loss incurred on a Mortgage Loan in Loan
Group I or Loan Group II caused by or resulting from an Extraordinary Event.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fitch: Fitch, Inc.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan in Loan Group I or Loan Group
II as to which a Fraud Loss has occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $6,098,434,
subject in each case to reduction from time to time by the amount of Fraud
Losses allocated to the Group I-B Certificates. On each anniversary of the
Cut-off Date, the Fraud Loss Coverage Amount will be reduced as follows: (a)
from the first to the fifth anniversary of the Cut-off Date, the Fraud Loss
Coverage Amount will be reduced to an amount equal to the lesser of (i) 1% of
the aggregate Stated Principal Balance of the Mortgage Loans in Loan Group I
and Loan Group II and (ii) the excess of the Fraud Loss Coverage Amount as of
the preceding anniversary of the Cut-off Date (or, in the case of the first
such anniversary, as of the Cut-off Date) over the cumulative amount of Fraud
Losses on the Mortgage Loans allocated to the Group I-B Certificates since
such preceding anniversary or the Cut-off Date, as the case may be, and (b) on
and after the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
applicable Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Mortgage Loans in Loan Group I
and Loan Group II as to which a loss is sustained by reason of a default
arising from fraud, dishonesty or misrepresentation in connection with the
related Mortgage Loan, including a loss by reason of the denial of coverage
under any related Primary Mortgage Insurance Policy because of such fraud,
dishonesty or misrepresentation.
Gross Margin: With respect to each adjustable-rate Mortgage Loan, the
fixed percentage set forth in the related Mortgage Note that is added to the
Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note used to determine the Mortgage Rate for such Mortgage Loan.
Group: When used with respect to the Mortgage Loans, any of Group I
or Group II, or with respect to the Certificates, the Class or Classes of
Certificates that relate to the corresponding Group.
20
Group I: With respect to the Mortgage Loans, the pool of fixed rate
Mortgage Loans identified in the related Mortgage Loan Schedule as having been
assigned to Group I or with respect to the Certificates, the Group I-A, Group
I-B, Class I-X, Class I-P, Class PP or Class AR Certificates.
Group I Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group I which became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group I Senior Percentage of the Stated Principal Balance of such Mortgage
Loan (exclusive of the Class I-P Fraction of that balance, with respect to any
Class I-P Mortgage Loan) and (ii) the Senior Prepayment Percentage of the
Liquidation Principal with respect to such Mortgage Loan.
Group I Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Principal Balances of the Group I Senior Certificates (other than
the Class I-P Certificates) immediately prior to such Distribution Date and
the denominator of which is the aggregate of the Stated Principal Balances of
the Mortgage Loans in Loan Group I less the Class I-P Fraction of the Class
I-P Mortgage Loans, as of the first day of the related Due Period; provided,
however, in no event will the Group I Senior Percentage exceed 100%.
Group I Senior Principal Distribution Amount: As to any Distribution
Date, the sum of (i) the Group I Senior Percentage of the Principal Payment
Amount (exclusive of the portion attributable to the Class I-P Principal
Distribution Amount) for Loan Group I, (ii) the Senior Prepayment Percentage
of the Principal Prepayment Amount (exclusive of the portion attributable to
the Class I-P Principal Distribution Amount) for Loan Group I, and (iii) the
Group I Senior Liquidation Amount.
Group I Subordinate Percentage: For any Distribution Date, the excess
of 100% over the Group I Senior Percentage.
Group II: With respect to the Mortgage Loans, the pool of
adjustable-rate Mortgage Loans identified in the related Mortgage Loan
Schedule as having been assigned to Group II or with respect to the
Certificates, the Class II-A-1 Certificates.
Group II Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group II which became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group II Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and (ii) the Senior Prepayment Percentage of the Liquidation Principal
with respect to such Mortgage Loan.
Group II Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balances of the Class II-A-1 Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate of the Stated
Principal Balances of the Mortgage Loans in Loan Group II immediately prior to
such Distribution Date; provided, however, in no event will the Group II
Senior Percentage exceed 100%. The Group II Senior Percentage initially will
equal 100%.
21
Group II Senior Principal Distribution Amount: As to any Distribution
Date, the sum of (i) the Group II Senior Percentage of the Principal Payment
Amount for Loan Group II, (ii) the Senior Prepayment Percentage of the
Principal Prepayment Amount for Loan Group II, and (iii) the Group II Senior
Liquidation Amount.
Index: With respect to any Mortgage Loan and each related Adjustment
Date, the index as specified in the related Mortgage Note.
Indirect Participants: Entities, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly.
Initial Bankruptcy Loss Coverage Amount: $167,863.
Initial Class Principal Balance: As set forth in the Preliminary
Statement.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any Primary Insurance Policy, any standard hazard insurance
policy, flood insurance policy or title insurance policy, and with respect to
each TGIC Mortgage Loan, the TGIC Policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies
for any Insurance Policies.
Insurance Proceeds: Proceeds of any primary mortgage guaranty
insurance policies, including, without limitation, with respect to the TGIC
Mortgage Loans, the TGIC Policy, and any other Insurance Policies with respect
to the Mortgage Loans, to the extent such proceeds are not applied to the
restoration of the related Mortgaged Property or released to the Mortgagor in
accordance with a Servicer's normal servicing procedures.
Interest Distribution Amount: With respect to any Distribution Date
and Class of Group I and Group II Certificates the sum of (i) one month's
interest accrued during the related Accrual Period at the applicable
Pass-Through Rate for such Class on the related Class Principal Balance or
Class Notional Amount, as applicable, subject to reduction pursuant to Section
4.01, and (ii) any Class Unpaid Interest Amounts for such Class and
Distribution Date.
Interest Rate: With respect to each Class of Certificates, the
applicable rate set forth or calculated in the manner described in the
Preliminary Statement.
Interest Remittance Amount: For any Distribution Date, an amount
equal to the sum of (1) all interest collected (other than Payaheads) or
advanced in respect of Scheduled Payments on the Mortgage Loans during the
related Collection Period, the interest portion of Payaheads previously
received and intended for application in the related Collection Period and
interest portion of all Payoffs (net of Payoff Interest for such Distribution
Date) and Curtailments received on the Mortgage Loans during the related
Prepayment Period, less (x) the applicable Servicing Fees with respect to such
Mortgage Loans and (y) unreimbursed Advances, Servicing Advances and other
amounts due to the applicable Servicer with respect to such Mortgage Loans, to
the extent allocable to interest, (2) all Compensating Interest Payments paid
by the Servicers with respect to the Mortgage Loans with respect to the
related Prepayment Period, (3) the portion of any Substitution Adjustment
Amount or Purchase Price paid with respect to
22
such Mortgage Loans during the related Collection Period allocable to
interest, and (4) all Net Liquidation Proceeds and any other recoveries (net
of unreimbursed Advances, Servicing Advances and expenses, to the extent
allocable to interest, and unpaid Servicing Fees) collected with respect to
the Mortgage Loans during the related Collection Period, to the extent
allocable to interest.
Investment Account: The commingled account (which shall be commingled
only with investment accounts related to series of pass-through certificates
with a class of certificates which has a rating equal to the highest of the
Ratings of the Certificates) maintained by WMMSC in the trust department of
the Investment Depository pursuant to Section 3.05.
Investment Depository: The Chase Manhattan Bank, New York, New York
or another bank or trust company designated from time to time by WMMSC. The
Investment Depository shall at all times be an Eligible Institution.
LIBOR: With respect to each Distribution Date, one-month LIBOR will
equal the interbank offered rate for one-month United States dollar deposits
in the London market as quoted on Telerate Page 3750 as of 11:00 A.M., London
time, on the second LIBOR Business Day prior to the first day of the related
Accrual Period (a "LIBOR Determination Date"). Telerate Page 3750 means the
display designated as page 3750 on the Bridge Telerate, or any other page as
may replace page 3750 on that service for the purpose of displaying London
interbank offered rates of major banks. If the rate does not appear on the
page, or any other page as may replace that page on that service, or if the
service is no longer offered, or any other service for displaying LIBOR or
comparable rates as may be selected by the trustee after consultation with
DLJMC, the rate will be the Reference Bank Rate.
LIBOR Business Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State of New York or in the
city of London, England are required or authorized by law to be closed.
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which a Servicer has determined (in accordance with this Agreement) that it
has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of the
related REO Property.
Liquidation Expenses: Customary and reasonable "out of pocket"
expenses incurred by a Servicer (or the related Subservicer) in connection
with the liquidation of any defaulted Mortgage Loan and not recovered by the
Servicer (or the related Subservicer) under a Primary Mortgage Insurance
Policy for reasons other than such Servicer's failure to comply with Section
3.09 hereof, such expenses including, without limitation, legal fees and
expenses, any unreimbursed amount expended by a Servicer pursuant to Section
3.11 hereof respecting the related Mortgage and any related and unreimbursed
expenditures for real estate property taxes or for property restoration or
preservation to the extent not previously reimbursed under any hazard
23
insurance policy for reasons other than such Servicer's failure to comply with
Section 3.11 hereof.
Liquidation Principal: As to any Distribution Date and a Loan Group,
the principal portion of Liquidation Proceeds received with respect to each
Mortgage Loan in that Loan Group which became a Liquidated Mortgage Loan (but
not in excess of the principal balance thereof) during the preceding calendar
month.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received
in connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property related to a Mortgage Loan and any other proceeds received
in connection with an REO Property, less the sum of related unreimbursed
Servicing Fees, Servicing Advances, Advances and reasonable out-of-pocket
expenses.
Loan Group: Any of Loan Group I or Loan Group II, as applicable.
Loan Group I: All Mortgage Loans identified as Loan Group I Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group II: All Mortgage Loans identified as Loan Group II
Mortgage Loans on the Mortgage Loan Schedule.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the Appraised Value of the Mortgaged Property or, in the case of a
Qualified Substitute Mortgage Loan, is the appraised value of the Mortgaged
Property based upon an appraisal made within 180 days prior to the date of
substitution of such Qualified Substitute Mortgage Loan for a Deleted Mortgage
Loan.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maximum Mortgage Rate: With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
Minimum Mortgage Rate: With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
Moody's: Xxxxx'x Investors Service, Inc. or any successor thereto.
Mortgage: With respect to a Mortgage Loan, the mortgage, deed of
trust or other instrument creating a first lien on a fee simple or leasehold
estate in real property securing a Mortgage Note.
Mortgage File: For each Mortgage Loan, the Trustee Mortgage File and
the Servicer Mortgage File.
24
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to the provisions hereof as from time to time are held
as a part of the Trust Fund (including any REO Property), the mortgage loans
so held being identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Mortgage Loan Purchase Price: The price, calculated as set forth in
Section 10.01, 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 (as from time to
time amended by the Sellers to reflect the addition of Qualified Substitute
Mortgage Loans and the purchase of Mortgage Loans pursuant to Section 2.02 or
2.03) transferred to the Trustee as part of the Trust Fund and from time to
time subject to this Agreement, attached hereto as Schedule I, setting forth
the following information with respect to each Mortgage Loan and applicable
Servicer by Loan Group:
1. the Mortgage Loan identifying number;
2. the Mortgagor's name;
3. the street address of the Mortgaged Property including the state
and zip code;
4. a code indicating the type of Mortgaged Property and the occupancy
status;
5. the original months to maturity or the remaining months to
maturity from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule;
6. the Loan-to-Value Ratio at origination;
7. the Mortgage Rate as of the Cut-off Date;
8. the stated maturity date;
9. the amount of the Scheduled Payment as of the Cut-off Date;
10. the original principal amount of the Mortgage Loan;
11. the principal balance of the Mortgage Loan as of the close of
business on the Cut-off Date, after deduction of payments of
principal due on or before the Cut-off Date whether or not
collected;
12. a code indicating the purpose of the Mortgage Loan (i.e.,
purchase, rate and term refinance, equity take-out refinance);
13. whether such Mortgage Loan has a Prepayment Penalty;
25
14. whether such Mortgage Loan is a TGIC Mortgage Loan;
15. the Expense Fee Rate as of the Cut-off Date;
16. the Servicing Fee Rate;
17. whether such Mortgage Loan is a DLJ Loan;
18. whether such Mortgage Loan is a WMMSC Serviced Mortgage Loan or a
Vesta Serviced Mortgage Loan;
19. the Index that is associated with such Mortgage Loan, if
applicable;
20. the Gross Margin, if applicable;
21. the Periodic Rate Cap, if applicable;
22. the Minimum Mortgage Rate, if applicable;
23. the Maximum Mortgage Rate, if applicable; and
24. the first Adjustment Date after the Cut-off Date, if applicable.
With respect to the Mortgage Loans in the aggregate, each Mortgage
Loan Schedule shall set forth the following information, as of the Cut-off
Date:
(i) the number of Mortgage Loans;
(ii) the current aggregate principal balance of the Mortgage Loans
as of the close of business on the Cut-off Date, after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; and
(iii) the weighted average Mortgage Rate of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note.
Mortgaged Property: The underlying real property securing a Mortgage
Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the excess of the related Liquidation Proceeds over Liquidation
Expenses.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate for such Mortgage Loan less the related
Expense Fee Rate.
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Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the Compensating Interest Payment for such
Distribution Date.
Net Simple Interest Excess: As of any Determination Date, for each
Simple Interest Qualifying Loan, the excess, if any, of the aggregate amount
of Simple Interest Excess (net of reimbursement to Vesta for simple interest
advancing as provided below) over the amount of Simple Interest Shortfall.
Net Simple Interest Shortfall: As of any Determination Date, for each
Simple Interest Qualifying Loan, the excess, if any, of the aggregate Simple
Interest Shortfalls over the aggregate Simple Interest Excess for the related
Collection Period.
Net WAC Rate: As to any Distribution Date and Loan Group, a rate
equal to the weighted average of the Net Mortgage Rates on the Mortgage Loans
in such Loan Group as of the second preceding Due Date after giving effect to
payments due on such Due Date, whether or not received, weighted on the basis
of the Stated Principal Balances as of such date.
1933 Act: The Securities Act of 1933, as amended.
Nonrecoverable Advance: Any portion of an Advance or Servicing
Advance previously made or proposed to be made by a Servicer that, in the good
faith judgment of such Servicer, will not be ultimately recoverable by such
Servicer from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, the President, an Executive Vice
President, Senior Vice President, a Vice President, or other authorized
officer, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor, the Sellers, the Servicers, the
Special Servicer or a Subservicer, as the case may be, or, in the case of the
Trustee, by a Responsible Officer of the Trustee, and delivered to the
Depositor, the Sellers, the Servicers, the Special Servicer, or the Trustee,
as required by this Agreement.
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 the definition of Eligible Account in this Article I and Sections
2.05 and 7.04 hereof and any opinion dealing with the qualification of the
REMIC or compliance with the REMIC Provisions, such counsel must (i) in fact
be independent of the Depositor and 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.
27
Optional Termination Date: The date fixed by a Terminating Entity for
the purchase of the Mortgage Loans pursuant to Section 10.01.
OTS: The Office of Thrift Supervision.
Outsourcer: As defined in Section 3.02.
Overcollateralized Group: As defined in Section 4.06.
Participant: A broker, dealer, bank, other financial institution or
other Person for whom DTC effects book-entry transfers and pledges of
securities deposited with DTC.
Pass-Through Entity: (a) a regulated investment company described in
Section 851 of the Code, a real estate investment trust described in Section
856 of the Code, a common trust fund or an organization described in Section
1381(a) of the Code, (b) any partnership, trust or estate or (c) any person
holding a Class A Certificate as nominee for another person.
Pass-Through Rate: For any interest-bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement. Interest on the Certificates will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Payahead: Any Scheduled Payment intended by the related Mortgagor to
be applied in a Collection Period subsequent to the Collection Period in which
such payment was received.
Payoff: Any payment of principal on a Mortgage Loan equal to the
entire outstanding Stated Principal Balance of such Mortgage Loan, if received
in advance of the last scheduled Due Date for such Mortgage Loan and
accompanied by an amount of interest equal to accrued unpaid interest on the
Mortgage Loan to the date of such payment-in-full.
Payoff Earnings: For any Distribution Date with respect to each WMMSC
Serviced Mortgage Loan on which a Payoff was received by WMMSC during the
related Prepayment Period, the aggregate of the interest earned by WMMSC from
investment of each such Payoff from the date of receipt of such Payoff until
the Business Day immediately preceding the related Distribution Date (net of
investment losses). For any Distribution Date with respect to each Vesta
Serviced Mortgage Loan on which a Payoff was received by Vesta during the
related Prepayment Period, the aggregate of the interest earned by Vesta from
investment of each such Payoff from the date of receipt of such Payoff until
the Servicer Remittance Date immediately preceding the related Distribution
Date (net of investment losses).
Payoff Interest: For any Distribution Date with respect to a WMMSC
Serviced Mortgage Loan for which a Payoff was received on or after the first
calendar day of the month of such Distribution Date and before the 15th
calendar day of such month, an amount of interest thereon at the applicable
Net Mortgage Rate from the first day of the calendar month of such
Distribution Date through the day of receipt thereof; to the extent (together
with Payoff Earnings and the portion of the aggregate Servicing Fee described
in clause (i)(a) of the definition of Compensating Interest Payment payable to
WMMSC) not required to be distributed as
28
Compensating Interest on such Distribution Date, Payoff Interest shall be
payable to WMMSC as additional servicing compensation.
For any Distribution Date with respect to a Vesta Serviced Mortgage
Loan for which a Payoff was received on or after the first calendar day of the
month of such Distribution Date and before the 15th calendar day of such
month, an amount of interest thereon at the applicable Net Mortgage Rate from
the first day of the calendar month of such Distribution Date through the day
of receipt thereof; to the extent (together with Payoff Earnings and the
portion of the aggregate Servicing Fee described in clause (i) of the
definition of Compensating Interest payable to Vesta) not required to be
distributed as Compensating Interest on such Distribution Date, Payoff
Interest shall be payable to Vesta as additional servicing compensation.
Percentage Interest: As to any Certificate, either the percentage set
forth on the face thereof or equal to the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of the same Class.
Periodic Rate Cap: With respect to each adjustable-rate Mortgage Loan
and any Adjustment Date, the fixed percentage set forth in the related
Mortgage Note, which is the maximum amount by which the Mortgage Rate for such
Mortgage Loan may increase or decrease on such Adjustment Date from the
Mortgage Rate in effect immediately prior to such Adjustment Date.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Physical Certificates: As set forth in the Preliminary Statement.
Premium Rate Mortgage Loans: The Group I Mortgage Loans having a Net
Mortgage Rate in excess of 7.75% per annum.
Prepayment Interest Shortfall: As to any Mortgage Loan, Distribution
Date and Principal Prepayment (other than a Principal Prepayment on a WMMSC
Serviced Mortgage Loan during the period from and including the 1st day to and
including the 14th day of the month of such Distribution Date) received during
the related Prepayment Period, the difference between (i) one full month's
interest at the applicable Mortgage Rate (giving effect to any applicable
Relief Act Reduction, Debt Service Reduction and Deficient Valuation), as
reduced by the Servicing Fee Rate, on the outstanding principal balance of
such Mortgage Loan immediately prior to such prepayment and (ii) the amount of
interest actually received with respect to such Mortgage Loan in connection
with such Principal Prepayment.
Prepayment Penalty: With respect to any Mortgage Loan, any penalty
required to be paid if the Mortgagor prepays such Mortgage Loan as provided in
the related Mortgage Note or Mortgage.
Prepayment Penalty Mortgage Loans: The Mortgage Loans serviced by
Servicers other than WMMSC that are subject to Prepayment Penalties. All
Prepayment Penalties derived from the Prepayment Penalty Mortgage Loans will
be allocated to the Class PP Certificates.
29
Prepayment Period: With respect to each Distribution Date and each
Payoff or Curtailment with respect to a Vesta Serviced Mortgage Loan, the
related "Prepayment Period" will be the calendar month preceding the month in
which the related Distribution Date occurs. With respect to each Distribution
Date and each Payoff with respect to a WMMSC Serviced Mortgage Loan, the
related "Prepayment Period" will commence on the 15th day of the month
preceding the month in which the related Distribution Date occurs (or, in the
case of the first Distribution Date, commencing on the Cut-off Date) and will
end on the 14th day of the month in which such Distribution Date occurs. With
respect to each Distribution Date and each Curtailment, the related
"Prepayment Period" will be the calendar month preceding the month in which
the related Distribution Date occurs.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Principal Payment Amount: For any Distribution Date and Loan Group I
or Loan Group II, the sum of (i) the principal portion of the Scheduled
Payments on the Mortgage Loans in such Loan Group due on the related Due Date,
(ii) the principal portion of repurchase proceeds received with respect to any
Mortgage Loan in such Loan Group which was repurchased as permitted or
required by this Agreement during the related Prepayment Period and (iii) any
other unscheduled payments of principal which were received on the Mortgage
Loans in such Loan Group during the related Prepayment Period, other than
Principal Prepayments or Liquidation Principal.
Principal Prepayment: Any payment of principal on a Mortgage Loan
which constitutes a Payoff or Curtailment.
Principal Prepayment Amount: For any Distribution Date and Loan Group
I or Loan Group II, the sum of all Principal Prepayments relating to the
Mortgage Loans in such Loan Group which were received during the related
Prepayment Period.
Principal Remittance Amount: For any Distribution Date, an amount
equal to the sum of (1) all principal collected (other than Payaheads) or
advanced in respect of Scheduled Payments on the Mortgage Loans during the
related Collection Period (less unreimbursed Advances, Servicing Advances and
other amounts due to the Servicers with respect to the Mortgage Loans, to the
extent allocable to principal) and the principal portion of Payaheads
previously received and intended for application in the related Collection
Period, (2) all Principal Prepayments received during the related Prepayment
Period, (3) the outstanding principal balance of each Mortgage Loan that was
repurchased by a Seller or a Servicer, or purchased by Vesta, during the
related Collection Period, (4) the portion of any Substitution Adjustment
Amount paid with respect to any Deleted Mortgage Loans during the related
Collection Period allocable to principal and (5) all Net Liquidation Proceeds
and any other recoveries (net of unreimbursed Advances, Servicing Advances and
other expenses, to the extent allocable to principal) collected with respect
to the Mortgage Loans during the related Collection Period, to the extent
allocable to principal.
Principal Transfer Amount: For any Distribution Date and
Undercollateralized Group, the excess, if any, of the aggregate Class
Principal Balance of the Senior Certificates
30
related to such Undercollateralized Group over the aggregate Stated
Principal Balance of the Mortgage Loans in such Group.
Private Certificates: As set forth in the Preliminary Statement.
Pro Rata Allocation: With respect to Excess Losses or Extraordinary
Losses relating to Loan Group I and Loan Group II, the allocation of the
principal portion of such losses to all Classes of Certificates (other than
the Class I-X Certificates and the Notional Amount Certificates), pro rata
according to their respective Class Principal Balances in reduction thereof,
and the allocation of the interest portion of such losses to all Classes of
Certificates (other than the Class I-P and Class I-A-3 Certificates), pro rata
according to the amount of interest accrued but unpaid on each such Class, in
reduction thereof, and then to such Classes pro rata (other than the Class I-X
Certificates and the Notional Amount Certificates) according to their
respective Class Principal Balances in reduction thereof.
Pro Rata Share: As to any Distribution Date and the Group I-B
Certificates, the portion of the Subordinate Principal Distribution Amount
allocable to such Class, equal to the product of the Subordinate Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Principal Balance of such Class and the denominator
of which is the aggregate of the Class Principal Balances of the Group I-B
Certificates.
Prospectus: The Prospectus, dated October 23, 2001, relating to the
offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the 1933 Act with respect to the offer and sale of the offered
certificates.
Prospectus Supplement: The Prospectus Supplement, dated November 29,
2001, relating to the offering of the Offered Certificates in the form in
which it was or will be filed with the Securities and Exchange Commission
pursuant to Rule 424(b) under the 1933 Act with respect to the offer and sale
of the offered certificates.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by a Seller pursuant to Section 2.02 or 2.03 or purchased at the
option of Vesta pursuant to Section 3.11(g), the sum of (i) 100% of the unpaid
principal balance of the Mortgage Loan on the date of such purchase, (ii)
accrued and unpaid interest on the Mortgage Loan at the applicable Mortgage
Rate (reduced by the related Servicing Fee Rate, if the purchaser is also the
Servicer thereof) from the date through which interest was last paid by the
Mortgagor to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders and (iii) the amount of any unreimbursed
Servicing Advances made by the Servicer with respect to such Mortgage Loan.
With respect to any Mortgage Loan required or allowed to be purchased, Vesta
or a Seller, as applicable, shall deliver to the Trustee an Officer's
Certificate as to the calculation of the Purchase Price.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having
31
jurisdiction over such insurer in connection with the insurance policy
issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write
the insurance provided by the insurance policy issued by it, approved as a
FNMA- or FHLMC-approved mortgage insurer or having a claims paying ability
rating of at least "AA" or equivalent rating by a nationally recognized
statistical rating organization. Any replacement insurer with respect to a
Mortgage Loan must have at least as high a claims paying ability rating as the
insurer it replaces had on the Closing Date.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by a
Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit K (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution
(or, in the case of a substitution of more than one mortgage loan for a
Deleted Mortgage Loan, an aggregate principal balance), not in excess of, and
not more than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (iv)
have a remaining term to maturity no greater than (and not more than one year
less than that of) the Deleted Mortgage Loan; (v) have a Maximum Mortgage Rate
and Minimum Mortgage Rate not less than the respective such rates for the
Deleted Mortgage Loan, have a Gross Margin equal to or greater than the
Deleted Mortgage Loan and have the same Index as the Deleted Mortgage Loan;
and (vi) comply with each representation and warranty set forth in Section
2.03(b).
Rating Agency: Xxxxx'x or Fitch, or any successors thereto.
Ratings: As of any date of determination, the ratings, if any, of the
Certificates as assigned by the Rating Agencies.
Realized Loss: With respect to (1) each Liquidated Mortgage Loan, an
amount (not less than zero or more than the Stated Principal Balance of the
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus (ii) interest at the applicable Net Mortgage Rate from the
related Due Date as to which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the related Due Date in the month in
which Liquidation Proceeds are required to be distributed on the Stated
Principal Balance of such Liquidated Mortgage Loan from time to time, minus
(iii) the Net Liquidation Proceeds, if any, received during the month in which
such liquidation occurred, to the extent applied as recoveries of interest at
the Net Mortgage Rate and to principal of the Liquidated Mortgage Loan; (2)
any Mortgage Loan subject to a Deficient Valuation, the excess of the Stated
Principal Balance of that Mortgage Loan over the principal amount as reduced
in connection with the proceedings resulting in the Deficient Valuation; or
(3) any Debt Service Reduction Mortgage Loan, the present value of all monthly
Debt Service Reductions on the Mortgage Loan, assuming that the mortgagor pays
each Scheduled Payment on the applicable Due Date and that no Principal
Prepayments are received on the Mortgage Loan, discounted at the applicable
Mortgage Rate.
Record Date: With respect to any Distribution Date and the
Certificates other than the LIBOR Certificates held in Book-Entry Form, the
close of business on the last Business
32
Day of the month preceding the month in which the applicable Distribution
Date occurs. With respect to the LIBOR Certificates that are not Physical
Certificates and any Distribution Date, the close of business on the
Business Day immediately preceding such Distribution Date; provided, however,
that following the date on which Definitive Certificates for a Class of LIBOR
Certificates are available pursuant to Section 5.02, the Record Date shall be
the close of business on the last Business Day of the calendar month
immediately preceding the month of such Distribution Date. The preceding
sentences notwithstanding, the Record Date for the first Distribution Date for
all Classes of Certificates shall be November 30, 2001.
Reference Bank Rate: With respect to the LIBOR Certificates, the rate
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks, which shall be three major banks that are
engaged in transactions in the London interbank market, selected by the
trustee after consultation with DLJMC, as of 11:00 a.m., London time, on the
day that is two LIBOR business days prior to the immediately preceding
Distribution Date to prime banks in the London interbank market for a period
of one month in amounts approximately equal to the aggregate Class Principal
Balance or Class Notional Amount, as applicable, of the Class I-A-1 and Class
I-A-2 Certificates. The trustee will request the principal London office of
each of the reference banks to provide a quotation of its rate. If at least
two quotations are provided, the rate will be the arithmetic mean of the
quotations. If on the related date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean of the rates quoted by one or
more major banks in New York City, selected by the trustee after consultation
with DLJMC, as of 11:00 a.m., New York City time, on such date for loans in
U.S. Dollars to leading European banks for a period of one month in amounts
approximately equal to the aggregate Class Principal Balance of the Class
I-A-1 and Class I-A-2 Certificates. If no quotations can be obtained, the rate
will be LIBOR for the prior Distribution Date.
Reference Banks: Three major banks that are engaged in the London
interbank market, selected by the Trustee after consultation with DLJMC.
Registration Statement: That certain registration statement on Form
S-3, as amended (Registration No. 333-61840), relating to the offering by the
Depositor from time to time of its Mortgage-Backed Pass-Through Certificates
(Issuable in Series) as heretofore declared effective by the Securities and
Exchange Commission.
Regular Certificates: All of the Certificates other than the Class AR
Certificates.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit", within the
meaning of Section 860D of the Code.
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REMIC Election: An election, for federal income tax purposes, to
treat certain assets as a REMIC.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement in respect of such Mortgage Loan or the related Mortgaged
Property.
Responsible Officer: When used with respect to the Trustee, shall
mean any officer within the corporate trust department of the Trustee,
including any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or any
other officer of the Trustee with direct responsibilities for the
administration of this Agreement 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.
Rule 144A: Rule 144A under the 1933 Act, as in effect from time to
time.
Scheduled Final Distribution Date: For any Group I or Group II
Certificate, the Distribution Date in November 2031.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan pursuant to the terms of the related Mortgage Note.
Sellers: DLJMC and WMMSC.
Senior Certificates: As specified in the Preliminary Statement.
Senior Liquidation Amount: The Group I Senior Liquidation Amount or
the Group II Senior Liquidation Amount, as applicable.
Senior Percentage: The Group I Senior Percentage or the Group II
Senior Percentage, as applicable.
Senior Prepayment Percentage: The Senior Prepayment Percentage for
any Distribution Date occurring during the five years beginning on the first
Distribution Date for the Group I and Group II Certificates will equal 100%.
The Senior Prepayment Percentage for any Distribution Date occurring on or
after the fifth anniversary of the first Distribution Date for the Group I and
Group II Certificates will be as follows: for any Distribution Date in the
first year
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thereafter, the related Senior Percentage plus 70% of the related
Subordinate Percentage for such Distribution Date; for any Distribution Date
in the second year thereafter, the related Senior Percentage plus 60% of the
related Subordinate Percentage for such Distribution Date; for any
Distribution Date in the third year thereafter, the related Senior Percentage
plus 40% of the related Subordinate Percentage for such Distribution Date; for
any Distribution Date in the fourth year thereafter, the related Senior
Percentage plus 20% of the related Subordinate Percentage for such
Distribution Date; and for any Distribution Date thereafter, the related
Senior Percentage for such Distribution Date (unless on any of the foregoing
Distribution Dates the related Senior Percentage exceeds the initial related
Senior Percentage, in which case the related Senior Prepayment Percentage will
once again equal 100%).
Notwithstanding the foregoing, no decrease in the reduction to a
Senior Prepayment Percentage as described above will occur if as of the first
Distribution Date as to which any such decrease applies (i) the outstanding
principal balance of the Mortgage Loans in the related Loan Group delinquent
60 days or more (averaged over the preceding six month period), as a
percentage of the aggregate Class Principal Balance of the Subordinate
Certificates as of such Distribution Date is equal to or greater than 50% and
(ii) cumulative Realized Losses in such Loan Group exceed (a) with respect to
the Distribution Date on the fifth anniversary of the first Distribution Date,
30% of the aggregate Class Principal Balance of the Subordinate Certificates
as of the Closing Date (the "Original Subordinate Principal Balance"), (b)
with respect to the Distribution Date on the sixth anniversary of the first
Distribution Date, 35% of the Original Subordinate Principal Balance, (c) with
respect to the Distribution Date on the seventh anniversary of the first
Distribution Date, 40% of the Original Subordinate Principal Balance, (d) with
respect to the Distribution Date on the eighth anniversary of the first
Distribution Date, 45% of the Original Subordinate Principal Balance and (e)
with respect to the Distribution Date on the ninth anniversary of the first
Distribution Date, 50% of the Original Subordinate Principal Balance.
Senior Principal Distribution Amount: The Group I Senior Principal
Distribution Amount or the Group II Senior Principal Distribution Amount, as
applicable.
Servicers: Vesta and WMMSC, or any successor in interest or any
successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicer Mortgage File: All documents pertaining to a Mortgage Loan
not required to be included in the Trustee Mortgage File and held by the
Servicer or any Subservicer.
Servicer Remittance Date: With respect to the WMMSC Serviced Loans
and any Distribution Date, the Business Day immediately preceding such
Distribution Date. With respect to the Vesta Serviced Mortgage Loans and any
Distribution Date, the 18th day of the month in which such Distribution Date
occurs (or if such 18th day is not a Business Day, the first Business Day
immediately preceding such 18th day).
Servicing Advance: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by a Servicer of its
servicing obligations,
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including, but not limited to, the cost (including reasonable attorneys'
fees and disbursements) of (i) the preservation, restoration and
protection of a Mortgaged Property, (ii) compliance with the obligations under
Section 3.11 and any enforcement or judicial proceedings, including
foreclosures, (iii) the management and liquidation of any REO Property
(including default management and similar services, appraisal services and
real estate broker services); (iv) any expenses incurred by a Servicer in
connection with obtaining an environmental inspection or review pursuant to
the second paragraph of Section 3.11(a) and (v) compliance with the
obligations under Section 3.09.
Special Event of Default: An Event of Default under Section 8.01(b)
which arises solely from the cumulative effect of a breach or breaches by
WMMSC of its agreements as set forth in clauses (i)(x) through (z), inclusive,
of the first paragraph of Section 2.07(g).
Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the Servicing Fee Rate on the Stated
Principal Balance of such Mortgage Loan as of the related Due Date for such
Distribution Date (prior to giving effect to any Scheduled Payments due on
such Mortgage Loan on such Due Date), subject to reduction as provided in
Section 3.14.
Servicing Fee Rate: As to each Mortgage Loan, the per annum rate set
forth on the related Mortgage Loan Schedule.
Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage
Loans whose name and specimen signature appear on a list of servicing officers
furnished to the Trustee by a Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended and delivered to the
Trustee.
Simple Interest Excess: As of any Determination Date, for each Simple
Interest Qualifying Loan, the excess, if any, of (i) the portion of the
Scheduled Payment received from the Mortgagor for such Mortgage Loan allocable
to interest with respect to the related Collection Period, over (ii) 30 days'
interest on the principal balance of such Mortgage Loan at the Mortgage Rate.
Simple Interest Excess Sub-Account: A sub-account of the Collection
Account established and maintained by Vesta pursuant to Section 3.05(g)
hereunder.
Simple Interest Loan: With respect to Group I, any Mortgage Loan
where interest is charged to a Mortgagor on the outstanding principal balance
of the Mortgage Loan based on the number of days elapsed between the date
through which interest was last paid on the Mortgage Loan through receipt of
the Mortgagor's most current monthly payment and the portion of each monthly
payment that is allocated to interest and principal is adjusted based on the
actual amount of interest charged on such basis.
Simple Interest Qualifying Loan: As of any Determination Date, is any
Simple Interest Mortgage Loan that was neither prepaid in full during the
related Collection Period, nor delinquent with respect to a payment that
became due during the related Collection Period as of the close of business on
the Determination Date following such Collection Period.
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Simple Interest Shortfall: As of any Determination Date, for each
Simple Interest Qualifying Loan, the excess, if any, of (i) 30 days' interest
on the principal balance of such Mortgage Loan at the mortgage rate, over (ii)
the portion of the Scheduled Payment received from the Mortgagor for such
Mortgage Loan allocable to interest with respect to the related Collection
Period.
Special Hazard Coverage Termination Date: The date on which the
coverage under the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: A Realized Loss (or portion thereof) with
respect to a Mortgage Loan arising from any direct physical loss or damage to
a Mortgaged Property which is not covered by a standard hazard maintenance
policy with extended coverage or by a flood insurance policy, if applicable
(or which would not have been covered by such a policy had such a policy been
maintained), which is caused by or results from any cause except: (i) wear and
tear, deterioration, rust or corrosion, mold, wet or dry rot, inherent vice or
latent defect, animals, birds, vermin, insects; (ii) settling, subsidence,
cracking, shrinkage, bulging or expansion of pavements, foundations, walls,
floors, roofs or ceilings; (iii) errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or part thereof ensues
and then only for the ensuing loss; (iv) nuclear or chemical reaction or
nuclear radiation or radioactive or chemical contamination, all whether
controlled or uncontrolled, and whether such loss be direct or indirect,
proximate or remote or be in whole or in part; (v) hostile or warlike action
in time of peace or war, including action in hindering, combating or defending
against an actual, impending or expected attack (a) by any government of
sovereign power, de jure or de facto, or by any authority maintaining or using
military, naval or air forces, (b) by military, naval or air forces, or (c) by
an agent of any such government, power, authority or forces; (vi) any weapon
of war employing atomic fission or radioactive force whether in time of peace
or war; or (vii) insurrection, rebellion, revolution, civil war, usurped power
or action taken by governmental authority in hindering, combating or defending
against such occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority, or
risks of contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: As of the Closing Date,
$3,049,217, subject in each case to reduction from time to time by the amount
of Special Hazard Losses allocated to the Group I Certificates or the Group II
Certificates. On each anniversary of the Cut-off Date, the Special Hazard Loss
Coverage Amount will be equal to the lesser of (a) the greatest of (i) 1% of
the aggregate Stated Principal Balance of the Mortgage Loans in all of the
Loan Groups, (ii) twice the Stated Principal Balance of the largest Mortgage
Loan in any Loan Group and (iii) the aggregate Stated Principal Balance of all
Mortgage Loans in all of the Loan Groups secured by Mortgaged Properties
located in the single California postal zip code area having the highest
aggregate principal balance of any such zip code area and (b) the Special
Hazard Loss Coverage Amount as of the Closing Date less the amount, if any, of
Special Hazard Losses allocated to the Certificates in any Certificate Group
since the Closing Date. All principal balances for the purpose of this
definition will be calculated as of the first day of the calendar month
preceding the month of such Distribution Date after giving effect to Scheduled
Payments on the Mortgage Loans then due, whether or not paid.
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Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which
a Special Hazard Loss has occurred.
Special Serviced Mortgage Loans: Mortgage Loans for which the Special
Servicer acts as Servicer pursuant to Section 3.19.
Special Servicer: Vesta, or any successor in interest.
Standard Hazard Policy: Each standard hazard insurance policy or
replacement therefor referred to in Section 3.09.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and date of
determination, the principal balance of that Mortgage Loan as of the Cut-off
Date, after application of all scheduled principal payments due on or before
the Cut-off Date, whether or not received, reduced by all amounts allocable to
principal that have been distributed to Certificateholders with respect to
that Mortgage Loan on or before that date of determination, and as further
reduced to the extent that any Realized Loss on that Mortgage Loan has been
allocated to one or more Classes of Certificates on or before that date of
determination.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Component Balance: For either loan group as of any date
of determination, the then outstanding aggregate Stated Principal Balance of
the mortgage loans in that loan group (less, in the case of group I, the
applicable Class I-P Fraction of any applicable Class I-P Mortgage Loan) minus
the then outstanding aggregate Certificate Principal Balance of the related
Class A Certificates.
Subordinate Liquidation Amount: For any Distribution Date, the
excess, if any, of the aggregate Liquidation Principal of all Mortgage Loans
which became Liquidated Mortgage Loans during the calendar month preceding the
month of that Distribution Date over the sum of the related Senior Liquidation
Amount for such Distribution Date.
Subordinate Percentage: As to any Distribution Date and Loan Group I
or Loan Group II, the excess of 100% over the related Senior Percentage for
that Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
with respect to Loan Group I or Loan Group II, 100% minus the related Senior
Prepayment Percentage for such Distribution Date; provided, however, that if
the aggregate Class Principal Balance of the Senior Certificates related to
such Loan Group has been reduced to zero, then the Subordinate Prepayment
Percentage for such Loan Group will equal 100%.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and the Subordinate Certificates, will equal (A) the sum of
(i) the related Subordinate Percentage of the Principal Payment Amount related
to the Group I and Group II Mortgage Loans, exclusive of the portion of that
Principal Payment Amount attributable to the Class I-P Principal Distribution
Amount, (ii) the related Subordinate Prepayment Percentage of the Principal
38
Prepayment Amount related to the Group I and Group II Mortgage Loans,
exclusive of the portion of that Principal Payment Amount attributable to the
Class I-P Principal Distribution Amount, (iii) the related Subordinate
Liquidation Amount, less (B) the sum of (i) any cross-collateralization
payments pursuant to Section 4.06 and (ii) any Class I-P Deferred Amounts
required to be paid to the Class I-P Certificates on that Distribution Date.
Subordination Level: As to any Distribution Date and any Class of
Group I-B Certificates, the percentage obtained by dividing the sum of the
Class Principal Balances of all Classes of Group I-B Certificates that are
subordinate in right of payment to such Class by the sum of the Class
Principal Balances of all Classes of Group I Certificates, other than the
Notional Amount Certificates, in each case immediately prior to such
Distribution Date.
Subservicer: Any other entity with respect to any Mortgage Loan under
any Subservicing Agreement applicable to such Mortgage Loan and any successors
and assigns under such Subservicing Agreement.
Subservicing Agreement: An agreement between a Servicer and a
Subservicer for the servicing of the related Mortgage Loans.
Substitution Adjustment Amount: As defined in Section 2.03.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulationss. 301.6231(a)(7)-1T. Initially, the Tax Matters Person
shall be the Trustee.
Terminating Entity: Vesta, upon the exercise of such entity's right
to effect an Optional Termination pursuant to Section 10.01.
Terms Agreement: The terms agreement dated as of November 30, 2001
between Triad Guaranty Insurance Corporation, DLJ Mortgage Capital, Inc. and
Bank One, National Association, as trustee.
TGIC Fee: As to each TGIC Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the TGIC Fee Rate on the Stated
Principal Balance of such TGIC Mortgage Loan as of the related Due Date for
such Distribution Date (prior to giving effect to any Scheduled Payment due on
such TGIC Mortgage Loan on such Due Date).
TGIC Fee Rate: With respect to each TGIC Mortgage Loan, the per annum
rate equal to 0.86%.
TGIC Mortgage Loan: Those Group I and Group II Mortgage Loans
identified on the Mortgage Loan Schedule as to which the TGIC Policy provides
coverage.
TGIC Policy: The mortgage guaranty insurance policy issued by Triad
Guaranty Insurance Corporation, attached hereto as Exhibit P.
Transferee Affidavit and Agreement: As defined in Section
6.02(g)(i)(B).
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Trust Fund: The corpus of the trust created by this Agreement
consisting of (a) the Mortgage Loans listed in the Mortgage Loan Schedule,
including all interest and principal received or receivable by the Depositor
on or with respect to the Mortgage Loans after the Cut-off Date, but not
including payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date, together with the Mortgage Files relating
to the Mortgage Loans, (b) REO Property, (c) the Collection Account, the
Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement, (d) any insurance policies with
respect to the Mortgage Loans, including, with respect to each TGIC Mortgage
Loan, the TGIC Policy, and (e) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
Trustee: Bank One, National Association, a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and
any successor thereto, as provided herein.
Trustee Mortgage File: The mortgage documents listed in Section 2.01
hereof pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Trustee Mortgage File pursuant to this Agreement.
Undercollateralized Group: As defined in Section 4.06.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58, 65
Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
Vesta: Vesta Servicing, L.P., a Delaware limited partnership, and its
successors and assigns.
Vesta Serviced Mortgage Loans: The Mortgage Loans identified as such
in the Mortgage Loan Schedule for which Vesta is the applicable Servicer and,
if Vesta is the Special Servicer, any Special Serviced Mortgage Loan.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
98% of all Voting Rights shall be allocated among the Class A and Group I-B
Certificates. The portion of such 100% Voting Rights allocated to each of the
Class A and Group I-B Certificates shall be based on the fraction, expressed
as a percentage, the numerator of which is the aggregate Class Principal
Balance then outstanding and the denominator of which is the Class Principal
Balance of all Classes then outstanding. Voting Rights shall be allocated
among the Certificates within each such Class in proportion to their
40
respective outstanding Class Principal Balances. The Notional Amount
Certificates shall be allocated 2% of the Voting Rights. The Class AR shall
have no voting rights.
WMMSC: Washington Mutual Mortgage Securities Corp., a Delaware
corporation, and its successors and assigns.
WMMSC Loans: The Mortgage Loans identified as such in the Mortgage
Loan Schedule, for which WMMSC is the applicable Seller.
WMMSC Mortgage Loan Purchase Agreement: That certain mortgage loan
purchase agreement dated as of November 1, 2001, between DLJMC, as purchaser,
and WMMSC, as seller, of the WMMSC Loans.
WMMSC Serviced Mortgage Loan: The Mortgage Loans, identified as such
in the Mortgage Loan Schedule, for which WMMSC is the applicable Servicer.
41
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Trust Fund.
(a) The Depositor hereby sells, transfers, assigns, delivers, sets
over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, the Depositor's right, title and
interest in and to (i) the Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date, which Mortgage Loans the
Depositor shall cause to be delivered to the Trustee on or prior to the
Closing Date, together with the Trustee Mortgage Files relating to the
Mortgage Loans, (ii) REO Property, (iii) the Collection Account, the
Certificate Account, and all amounts deposited therein pursuant to the
applicable provisions of this Agreement, (iv) any insurance policy with
respect to the Mortgage Loans, (v) the Depositor's rights under the Assignment
and Assumption Agreement and (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property. In
addition, on or prior to the Closing Date, the Depositor shall cause TGIC to
deliver the TGIC Policy to the Trustee.
(b) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to the
Trustee for the benefit of the Certificateholders, the documents and
instruments with respect to each Mortgage Loan as assigned:
(i) the electronic Mortgage Loan Schedule;
(ii) (A) the original Mortgage Note bearing all intervening
endorsements and including any riders to the Mortgage Note, endorsed
"Pay to the order of ________________, without recourse" and signed
in the name of the last named endorsee by an authorized officer or
(B) with respect to any Lost Mortgage Note, a lost note affidavit
and indemnity from the related Seller stating that the original
Mortgage Note was lost or destroyed, (together with a copy of such
Mortgage Note, if available) and indemnifying the Trust Fund against
any loss, cost or liability resulting from the failure to deliver
the original Mortgage Note;
(iii) the original of any guarantee executed in connection with
the Mortgage Note (if any);
(iv) the original Mortgage with evidence of recording thereon,
or copies certified by the related recording office or if the
original Mortgage has not yet been returned from the recording
office, a copy certified by or on behalf of the related Seller
indicating that such Mortgage has been delivered for recording. The
return directions for the original Mortgage should indicate, when
recorded, mail to the related Seller;
42
(v) the originals of all assumption, modification,
consolidation or extension agreements, (or, if an original of any of
these documents has not been returned from the recording office, a
copy thereof certified by or on behalf of the related Seller, the
original to be delivered to such Seller forthwith after return from
such recording office) with evidence of recording thereon, if any;
(vi) the original Assignment of Mortgage as appropriate, in
recordable form, for each Mortgage Loan assigned in blank;
(vii) the originals of any intervening recorded Assignments of
Mortgage, showing a complete chain of assignment from origination to
the related Seller, including warehousing assignments, with evidence
of recording thereon (or, if an original intervening Assignment of
Mortgage has not been returned from the recording office, a copy
thereof certified by or on behalf of such Seller, the original to be
delivered to the Trustee forthwith after return from such recording
office); and
(viii) the original mortgage title insurance policy (or in
appropriate jurisdictions, attorney's opinion of title and abstract
of title).
In the event a Seller delivers to the Trustee certified copies of any
document or instrument set forth in 2.01(b) because of a delay caused by the
public recording office in returning any recorded document, such Seller shall
deliver to the Trustee, within 60 days of the Closing Date, an Officer's
Certificate which shall (i) identify the recorded document, (ii) state that
the recorded document has not been delivered to the Trustee due solely to a
delay caused by the public recording office, and (iii) state the amount of
time generally required by the applicable recording office to record and
return a document submitted for recordation.
In the event that in connection with any Mortgage Loan the Depositor
cannot deliver (a) the original recorded Mortgage, (b) all interim recorded
assignments or (c) the lender's title policy (together with all riders
thereto) satisfying the requirements set forth above, concurrently with the
execution and delivery hereof because such document or documents have not been
returned from the applicable public recording office in the case of clause (a)
or (b) above, or because the title policy has not been delivered to the
related Seller or the Depositor by the applicable title insurer in the case of
clause (c) above, the Depositor shall promptly deliver to the Trustee, in the
case of clause (a) or (b) above, such original Mortgage or such interim
assignment, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, the Trustee
(at the expense of the Depositor) shall (i) affix the Trustee's name to each
Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to
be in proper form for recording in the appropriate public office for real
property records within thirty (30) days after receipt thereof and (iii) cause
to be delivered for recording in the appropriate public office for real
property records the assignments of the Mortgages to the Trustee, except that,
with respect to any assignment of a Mortgage as to which the Trustee has not
received the information required to prepare such assignment in
43
recordable form, the Trustee's obligation to do so and to deliver the
same for such recording shall be as soon as practicable after receipt of such
information and in any event within thirty (30) days after the receipt
thereof, and the Trustee need not cause to be recorded any assignment which
relates to a Mortgage Loan in any jurisdiction under the laws of which, as
evidenced by an Opinion of Counsel delivered by the related Seller (at such
Seller's expense) to the Trustee, acceptable to the Rating Agencies, the
recordation of such assignment is not necessary to protect the Trustee's and
the Certificateholders' interest in the related Mortgage Loan.
If any original Mortgage Note referred to in Section 2.01(b)(i) above
cannot be located, the obligations of the Depositor to deliver such documents
shall be deemed to be satisfied upon delivery to the Trustee of a photocopy of
such Mortgage Note, if available, with a lost note affidavit and indemnity. If
any of the original Mortgage Notes for which a lost note affidavit and
indemnity was delivered to the Trustee is subsequently located, such original
Mortgage Note shall be delivered to the Trustee within three Business Days.
(c) The Trustee is authorized to appoint any bank or trust company
approved by the Depositor as Custodian of the documents or instruments
referred to in this Section 2.01, and to enter into a Custodial Agreement for
such purpose and any documents delivered thereunder shall be delivered to the
Custodian and any Officer's Certificates delivered with respect thereto shall
be delivered to the Trustee and the Custodian. The Trustee is also authorized
and directed to enter into the Terms Agreement.
(d) It is the express intent of the parties to this Agreement that
the conveyance of the Mortgage Loans by the Depositor to the Trustee as
provided in this Section 2.01 be, and be construed as, a sale of the Mortgage
Loans by the Depositor to the Trustee. It is, further, not the intention of
the parties to this Agreement that such conveyance be deemed a pledge of the
Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties to this Agreement, the Mortgage Loans are held to be the
property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans then (a) this
Agreement shall also be deemed to be a security agreement within the meaning
of Articles 8 and 9 of the New York Uniform Commercial Code; (b) the
conveyance provided for in this Section 2.01 shall be deemed to be a grant by
the Depositor to the Trustee for the benefit of the Certificateholders of a
security interest in all of the Depositor's right, title and interest in and
to the Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, whether in the form of cash, instruments, securities or other
property; (c) the possession by the Trustee or any Custodian of such items of
property and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "in possession by
the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the New York Uniform Commercial Code; and (d)
notifications to persons holding such property, and acknowledgments, receipts
or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Trustee for
the benefit of the Certificateholders for the purpose of perfecting such
security interest under
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applicable law (except that nothing in this clause (d) shall cause any
person to be deemed to be an agent of the Trustee for any purpose other
than for perfection of such security interests unless, and then only to the
extent, expressly appointed and authorized by the Trustee in writing). The
Depositor and the Trustee, upon directions from the Depositor, shall, to the
extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement.
Section 2.02 Acceptance by the Trustee.
(a) The Trustee acknowledges receipt of the documents identified in
the Initial Certification in the form annexed hereto as Exhibit I and declares
that it holds and will hold such documents and the other documents delivered
to it constituting the Mortgage Files, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive use
and benefit of all present and future Certificateholders. The Trustee
acknowledges that its Custodian will maintain possession of the Mortgage Notes
in the State of Texas, unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, each Seller and each Servicer an Initial Certification in the form
annexed hereto as Exhibit I with any applicable exception noted on an
attachment thereto. Based on its review and examination, and only as to the
documents identified in such Initial Certification, the Trustee acknowledges
that such documents appear regular on their face and relate to such Mortgage
Loan. The Trustee shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
Not later than 90 days after the Closing Date, the Trustee shall
deliver to the Depositor, each Seller and each Servicer a Final Certification
in the form annexed hereto as Exhibit J, with any applicable exceptions noted
on an attachment thereto.
If, in the course of such review, the Trustee finds any document
constituting a part of a Mortgage File which does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception on an attachment to
the Final Certification; provided, however, that the Trustee shall not make
any determination as to whether (i) any endorsement is sufficient to transfer
all right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or is sufficient to effect the assignment of and transfer to
the assignee thereof under the mortgage to which the assignment relates.
Each Seller shall promptly correct or cure such defect within 90 days
from the date it was so notified of such defect and, if the related Seller
does not correct or cure such defect within such period, such Seller shall
either (a) substitute for the related Mortgage Loan a Qualified Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase such
Mortgage Loan from the
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Trustee within 90 days from the date such Seller was notified of such
defect in writing at the Purchase Price of such Mortgage Loan; or such longer
period not to exceed 720 days from the Closing Date if the substitution or
repurchase of a Mortgage Loan pursuant to this provision is required by reason
of a delay in delivery of any documents by the appropriate recording office;
provided, however, that such Seller shall have no liability for recording any
Assignment of Mortgage in favor of the Trustee or for the Trustee's failure to
record such Assignment of Mortgage, and provided, further, that such Seller
shall not be obligated to repurchase or cure any Mortgage Loan solely as a
result of the Trustee's failure to record such Assignment of Mortgage. The
Trustee shall deliver written notice to each Rating Agency within 270 days
from the Closing Date indicating each Mortgage (a) which has not been returned
by the appropriate recording office or (b) as to which there is a dispute as
to location or status of such Mortgage. Such notice shall be delivered every
90 days thereafter until the related Mortgage Loan is returned to the Trustee.
Any such substitution pursuant to (a) above or purchase pursuant to (b) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05 hereof, if any, and any substitution pursuant
to (a) above shall not be effected prior to the additional delivery to the
Trustee of a Request for Release substantially in the form of Exhibit K. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such Mortgage
Loan shall be deposited by the related Seller in the Certificate Account on
the date of repurchase and, upon receipt of such deposit and certification
with respect thereto in the form of Exhibit K hereto, the Trustee shall
release the related Mortgage File to such Seller and shall execute and deliver
at such entity's request such instruments of transfer or assignment prepared
by such entity, in each case without recourse, as shall be necessary to vest
in such entity, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto.
(b) It is understood and agreed that the obligation of each Seller to
cure, substitute for or to repurchase any Mortgage Loan which does not meet
the requirements of Section 2.01 shall constitute the sole remedy respecting
such defect available to the Trustee, the Depositor and any Certificateholder
against the related.
Section 2.03 Representations and Warranties of the Sellers and
Servicers.
(a) Each of DLJMC, in its capacity as a Seller, WMMSC, in its
capacity as Servicer and as a Seller, and Vesta, in its capacity as Servicer
and Special Servicer, hereby makes the representations and warranties
applicable to it set forth in Schedule IIA, IIB or IIC, as applicable hereto,
and by this reference incorporated herein, to the Depositor and the Trustee,
as of the Closing Date, or if so specified therein, as of the Cut-off Date or
such other date as may be specified.
(b) Each of DLJMC and WMMSC, in their capacities as Sellers, hereby
makes the representations and warranties set forth in Schedule IIIA and IIIB,
as applicable hereto, as such representations and warranties are applicable to
the DLJ Loans and WMMSC Loans, respectively, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date,
or if so specified therein, as of the Cut-off Date or such other date as may
be specified.
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(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Each Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made by it pursuant to Section
2.03(b) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan sold by the related Seller to the
Trust, it shall cure such breach in all material respects, and if such breach
is not so cured, shall, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Qualified
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below; provided, however, that any such substitution pursuant to (i) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05 hereof, if any, and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery
to the Trustee of a Request for Release substantially in the form of Exhibit K
relating to the Deleted Mortgage Loan and the Mortgage File for any such
Qualified Substitute Mortgage Loan. The related Seller shall promptly
reimburse the Trustee and the related Servicer for any actual out-of-pocket
expenses reasonably incurred by the Trustee or related Servicer in respect of
enforcing the remedies for such breach. With respect to any representation and
warranties described in this Section which are made to the best of a Seller's
knowledge, if it is discovered by either the Depositor, the Sellers, any
Servicer or the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of the related Mortgage Loan or the interests of the Certificateholders
therein, notwithstanding such Seller's lack of knowledge with respect to the
substance of such representation or warranty, such inaccuracy shall be deemed
a breach of the applicable representation or warranty.
With respect to any Qualified Substitute Mortgage Loan or Loans, the
applicable Seller shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by
Section 2.01(b), with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. Scheduled Payments
due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
related Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter the
related Seller shall be entitled to retain all amounts received in respect of
such Deleted Mortgage Loan. The applicable Seller shall amend the Mortgage
Loan Schedule for the benefit of the Certificateholders to reflect the removal
of such Deleted Mortgage Loan and the substitution of the Qualified Substitute
Mortgage Loan or Loans and such Seller shall deliver the amended Mortgage Loan
Schedule to the Trustee and the Servicers. Upon such substitution, the
Qualified Substitute Mortgage Loan or Loans shall be subject to the terms of
this Agreement in all respects, and the related Seller shall be deemed to have
made with respect to such Qualified Substitute Mortgage Loan or Loans, as of
the date of substitution, the representations and warranties made pursuant to
Section 2.03(b) with respect to such Mortgage Loan. Upon any such substitution
and the deposit to the
47
Certificate Account of the amount required to be deposited therein in
connection with such substitution as described in the following paragraph, the
Trustee shall release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to the related
Seller and shall execute and deliver at such Seller's direction such
instruments of transfer or assignment prepared by such Seller, in each case
without recourse, representation or warranty as shall be necessary to vest
title in the related Seller, or its designee, the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which a Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
applicable Servicer shall determine the amount (if any) by which the aggregate
principal balance of all such Qualified Substitute Mortgage Loans (based on
information provided by the substituting party) as of the date of substitution
is less than the aggregate Stated Principal Balance of all such Deleted
Mortgage Loans (after application of the scheduled principal portion of the
monthly payments due in the month of substitution). The amount of such
shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be deposited in the Collection Account by the related Seller on
the date of substitution.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Certificate Account on
or before the Business Day immediately preceding the Distribution Date in the
month following the month during which such Seller became obligated hereunder
to repurchase or replace such Mortgage Loan and upon such deposit of the
Purchase Price, the delivery of the Opinion of Counsel if required by Section
2.05 and receipt of a Request for Release in the form of Exhibit K hereto, the
Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment prepared
by such Person, in each case without recourse, representation or warranty as
shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or substitute any Mortgage Loan as to which a breach has occurred
and is continuing shall constitute the sole remedy against such Persons
respecting such breach available to Certificateholders, the Depositor or the
Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans that, as of the Closing Date, assuming good
title has been conveyed to the Depositor, the Depositor had good title to the
Mortgage Loans and Mortgage Notes, and did not encumber the Mortgage Loans
during its period of ownership thereof, other than as contemplated by the
Agreement.
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It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the Mortgage Files to
the Trustee.
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the related Seller delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause the REMIC hereunder to fail to qualify as a REMIC at any time
that any Certificates are outstanding.
Section 2.06 Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
together with the assignment to it of all other assets included in the Trust
Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trustee, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has
executed the Certificates and caused them to be authenticated and delivered to
or upon the order of the Depositor in authorized denominations which evidence
ownership of the Trust Fund. The rights of the Holders of such Certificates to
receive distributions from the Trust Fund and all ownership interests of the
Holders of the Certificates in such distributions shall be as set forth in
this Agreement.
Section 2.07 REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trustee to treat
the Trust Fund as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate
federal tax or information return (including Form 8811) or any appropriate
state return (x) for the taxable year ending on the last day of the calendar
year in which the Certificates are issued and (y) for the taxable year ending
on the last day of the calendar year in which Certificates are first sold to a
third party. The Closing Date is hereby designated as the "startup day" of the
REMIC within the meaning of Section 860G(a)(9) of the Code. The "regular
interests" (within the meaning of Section 860G of the Code) in the REMIC shall
consist of the Regular Certificates and the "Class AR Certificates shall
represent the beneficial ownership of the "residual interest" in each REMIC.
The Depositor and the Trustee shall not permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the REMIC other than the
Certificates.
(b) The Trustee on behalf of the Holders of the Class AR
Certificates, shall act as agent for the Class AR Certificateholder as the
"tax matters person" (within the meaning of the REMIC Provisions) for the
REMIC, in the manner provided under Treasury regulations section 1.860F-4(d)
and temporary Treasury regulations section 301.6231(a)(7)-1T. By its
acceptance of a Class AR Certificate, each Holder thereof shall have agreed to
such appointment
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and shall have consented to the appointment of the Trustee as its agent
to act on behalf of each REMIC pursuant to the specific duties outlined
herein.
(c) A Holder of the Class AR Certificates, by the purchase of such
Certificates, shall be deemed to have agreed to timely pay, upon demand by the
Trustee, the amount of any minimum California state franchise taxes due with
respect to each REMIC created hereunder under Sections 23151(a) and 23153(a)
of the California Revenue and Taxation Code. Notwithstanding the foregoing,
the Trustee shall be authorized to retain the amount of such tax from amounts
otherwise distributable to such Holder in the event such Holder does not
promptly pay such amount upon demand by the Trustee. In the event that any
other federal, state or local tax is imposed, including, without limitation,
taxes imposed on a "prohibited transaction" of a REMIC as defined in Section
860F of the Code, such tax shall be charged against amounts otherwise
available for distribution to the applicable Holder of a Class AR Certificate
and then against amounts otherwise available for distribution to the Holders
of Regular Certificates in accordance with the provisions set forth in Section
4.01. The Trustee shall promptly deposit in the Certificate Account any amount
of "prohibited transaction" tax that results from a breach of the Trustee's
duties under this Agreement. Each Servicer shall promptly deposit in the
Certificate Account any amount of "prohibited transaction" tax that results
from a breach of such Servicer's duties under this Agreement.
(d) The Trustee shall act as attorney-in-fact and as agent on behalf
of the tax matters person of the REMIC 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 REMIC
when and as required by the REMIC Provisions and other applicable federal
income tax laws as the direct representative of the REMIC in compliance with
the Code and shall provide copies of such returns as required by the Code;
(ii) make an election, on behalf of the REMIC, to be treated as a REMIC on the
federal tax return of such REMIC for its first taxable year, in accordance
with the REMIC Provisions; and (iii) prepare and forward, or cause to be
prepared and forwarded, to the Certificateholders and to any governmental
taxing authority all information reports as and when required to be provided
to them in accordance with the REMIC Provisions. The expenses of preparing and
filing such returns shall be borne by the Trustee. The Depositor and each
Servicer shall provide on a prompt and timely basis to the Trustee or its
designee such loan-level information with respect to the 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 REMIC in
relation to any tax matter or controversy involving the Trust Fund, (B)
represent the Trust Fund in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority with respect
thereto and (C) cause to be paid solely from the sources provided herein the
amount of any taxes imposed on the REMIC 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).
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(e) The Trustee shall (i) provide to any transferor of a Class AR
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class AR Certificate to any Person who is not a
permitted transferee, (ii) forward to the Certificateholders such information
or reports as are required by the Code or the REMIC Provisions including
reports relating to interest, original issue discount and market discount or
premium and (iii) to the Internal Revenue Service the name, title, address and
telephone number of the person who will serve as the representative of the
REMIC.
(f) The Trustee, the Depositor and the Holder of the Class AR
Certificates shall take any action or cause the Trust Fund to take any action
necessary to create or maintain the status of the REMIC as a REMIC under the
REMIC Provisions and shall assist each other as necessary to create or
maintain such status. Neither the Trustee nor the Holder of the Class AR
Certificates shall take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause the Trust Fund to take) any action that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of the REMIC as a REMIC or (ii) result in the imposition
of a tax upon a REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code) (either such event, an
"Adverse REMIC Event") unless the Trustee has received an Opinion of Counsel
(at the expense of the party seeking to take such action) to the effect that
the contemplated action will not endanger such status or result in the
imposition of such a tax.
The Trustee shall not take or fail to take any action (whether or not
authorized hereunder) as to which a Servicer or Depositor has advised it in
writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event could occur with respect to such action. In addition,
prior to taking any action with respect to a REMIC or its assets, or causing
the REMIC created hereunder to take any action, which is not expressly
permitted under the terms of this Agreement, the Trustee will consult with the
Depositor or its designees, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to the REMIC created
hereunder and the Trustee shall not take any such action or cause the REMIC to
take any such action as to which the Depositor has advised it in writing that
an Adverse REMIC Event could occur.
In addition, prior to taking any action with respect to the REMIC
created hereunder or the assets therein, or causing the REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Holder of the Class AR Certificates will consult with
the Trustee or its designee, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to the REMIC created
hereunder, and no such Person shall take any action or cause the Trust Fund to
take any such action as to which the Trustee has advised it in writing that an
Adverse REMIC Event could occur. The Trustee may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking
to take action not permitted by this Agreement.
At all times as may be required by the Code, the Trustee will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of the REMIC as
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
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(g) In the event that any tax is imposed on "prohibited transactions" of any
REMIC created hereunder, as defined in Section 860F(a)(2) of the Code, on "net
income from foreclosure property" of such REMIC, as defined in Section 860G(c)
of the Code, on any contributions to a REMIC after the Startup Day therefor
pursuant to Section 860G(d) of the Code, or any other tax is imposed by the
Code or any applicable provisions of state or local tax laws, such tax shall
be charged (i) to the related Servicer, if such Servicer has in its sole
discretion determined to indemnify the Trust Fund against such tax or if such
tax arises out of or results from a breach of such Servicer's duties under (x)
Section 2.07(j) of this Agreement to not enter into any arrangement by which a
REMIC would receive a fee or other compensation for services or to permit such
REMIC to receive any income from assets other than "qualified mortgages" or
"permitted investments", (y) Section 3.01 of this Agreement to not make or any
modification, waiver or amendment of any Mortgage Loan which would cause any
REMIC created hereunder to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of the Code or
(z) Section 3.11(c) of this Agreement to not cause any REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or to subject any REMIC created hereunder to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code of otherwise, or (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 (v) otherwise against amounts
on deposit in the Collection Account as provided by Section 3.08 and on the
Distribution Date(s) following such reimbursement the aggregate of such taxes
shall be allocated in reduction of the Interest Distribution Amount on each
Class entitled thereto in the same manner as if such taxes constituted a
Prepayment Interest Shortfall.
In accordance with Section 2.07(c), the related Servicer or the
Trustee, as applicable, shall promptly deposit in the Certificate Account any
amount of such tax.
For purposes of this Section 2.07(g), a tax is imposed following the
final and unappealable determination under the Code of the amount of such tax
and written notice thereof by the Tax Matters Person to the party to be
charged.
The failure of the related Servicer to promptly deposit in the
Certificate Account any amount of such tax shall be an Event of Default, as
provided in Section 8.01(b), provided, however, in the case of WMMSC, the
prompt deposit of any such amount in the Certificate Account shall cure any
Special Event of Default unless notice of such Special Event of Default is
accompanied by an Opinion of Counsel, at the expense of WMMSC, to the effect
that the cumulative effect of WMMSC's breach or breaches, notwithstanding the
deposit of the amounts of any such tax, shall have given rise to a substantial
risk that any REMIC created hereunder would fail to continue to qualify as a
REMIC.
(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to the REMIC on a calendar year and on an
accrual basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Trustee nor any Servicer
shall accept any contributions of assets to the REMIC created hereunder unless
(subject to 2.07(f)) such Servicer and the Trustee shall have received an
Opinion of Counsel (at the expense of the
52
party seeking to make such contribution) to the effect that the inclusion
of such assets in the REMIC will not cause that REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding, or subject
the REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) Neither the Trustee nor any Servicer shall (subject to Section
2.07(f)) enter into any arrangement by which the REMIC will receive a fee or
other compensation for services nor permit the REMIC to receive any income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3)
of the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(k) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for the REMIC.
(l) Neither the Trustee nor any Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed
in lieu of foreclosure, (ii) the bankruptcy of the REMIC created hereunder,
(iii) the termination of the REMIC created hereunder pursuant to Article X of
this Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or
III of this Agreement) nor acquire any assets for the REMIC, nor sell or
dispose of any investments in the Collection Account or the Certificate
Account for gain nor accept any contributions to the 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 REMIC created hereunder as a REMIC or (b) unless such Servicer has
determined in its sole discretion to indemnify the Trust Fund against such
tax.
(m) In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided to the Trustee,
within ten days after the Closing Date, all information or data that the
Trustee determines to be relevant for tax purposes to the valuations and
offering prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flows of the Certificates and
the Mortgage Loans and the Trustee shall be entitled to rely upon any and all
such information and data in the performance of its duties set forth herein.
Thereafter, each Servicer shall provide, promptly upon request therefor, any
such additional loan-level 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. DLJMC shall indemnify the Trustee and hold it harmless for any loss,
liability, damage, claim or expense of the Trustee, pursuant to, and in
accordance with, Section 9.05 of this Agreement, arising from any failure of
the Depositor to provide, or 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.
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Section 2.08 Covenants of each Servicer.
Each Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) Such Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of the insurer
under each Primary Insurance Policy; and
(b) No written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by such Servicer
pursuant to this Agreement will contain any untrue statement of a material
fact.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans.
For and on behalf of the Certificateholders, each Servicer shall
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and with Accepted Servicing Practices. The obligations of Vesta and
WMMSC hereunder to service and administer the Mortgage Loans shall be limited
to the Vesta Serviced Mortgage Loans and the WMMSC Serviced Mortgage Loans,
respectively; and with respect to the duties and obligations of each Servicer,
references herein to related "Mortgage Loans" shall be limited to the WMMSC
Serviced Mortgage Loans (and the related proceeds thereof and related REO
Properties) in the case of WMMSC and the Vesta Serviced Mortgage Loans (and
the related proceeds thereof and related REO Properties) in the case of Vesta;
and in no event shall any Servicer have any responsibility or liability with
respect to any of the other Mortgage Loans. In connection with such servicing
and administration, each Servicer shall have full power and authority, acting
alone and/or through Subservicers as provided in Section 3.02 hereof, to do or
cause to be done any and all things that it may deem necessary or desirable in
connection with such servicing and administration, including but not limited
to, the power and authority, subject to the terms hereof (i) to execute and
deliver, on behalf of the Certificateholders and the Trustee, customary
consents or waivers and other instruments and documents, (ii) to consent to
transfers of any Mortgaged Property and assumptions of the Mortgage Notes and
related Mortgages (but only in the manner provided in this Agreement), (iii)
to collect any Insurance Proceeds and other Liquidation Proceeds, and (iv) to
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan; provided that a Servicer shall not take
any action that is inconsistent with or prejudices the interests of the Trust
Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee or the Certificateholders under this
Agreement. Each Servicer shall represent and protect the interests of the
Trust Fund in the same manner as it protects its own interests in mortgage
loans in its own portfolio in any claim, proceeding or litigation regarding a
Mortgage Loan, and shall not make or permit any modification, waiver or
amendment of any Mortgage Loan which would cause the REMIC created hereunder
to fail to qualify as a REMIC or result in the imposition of any tax under
Section 860F(a) or Section 860G(d) of the Code. Without limiting the
generality of the foregoing, each Servicer, in its own name or in the name of
the Depositor and the Trustee, is hereby authorized and empowered by the
Depositor and the Trustee, when such Servicer believes it appropriate in its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. Each Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by either
or both of them as are necessary or appropriate to enable such Servicer to
service and administer the Mortgage Loans to the extent that such Servicer is
not permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents, the Depositor and/or the Trustee
shall execute such documents and deliver them to such Servicer.
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In accordance with the standards of the preceding paragraph and
unless determined in good faith to be a Nonrecoverable Advance, each Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall constitute Servicing Advances and shall be reimbursable
in the first instance from related collections from the Mortgagors pursuant to
Section 3.06, and further as provided in Section 3.08. The costs incurred by a
Servicer, if any, in effecting the timely payments of taxes and assessments on
the Mortgaged Properties and related insurance premiums shall not, for the
purpose of calculating monthly distributions to the Certificateholders, be
added to the Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit.
Each Servicer hereby acknowledges that, to the extent such Servicer
has previously serviced some or all of the Mortgage Loans pursuant to another
servicing agreement, the provisions contained in this Agreement shall
supersede the provisions contained in such other servicing agreement from and
after the Closing Date.
Section 3.02 Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer on behalf
of the related Servicer in accordance with the servicing provisions of this
Agreement, provided that the Subservicer is a FNMA-approved lender or a FHLMC
seller/servicer in good standing. A Servicer may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by such Servicer of a
Subservicer shall not release such Servicer from any of its obligations
hereunder and such Servicer shall remain responsible hereunder for all acts
and omissions of the Subservicer as fully as if such acts and omissions were
those of such Servicer. Each Servicer shall pay all fees and expenses of any
Subservicer engaged by such Servicer from its own funds.
Notwithstanding the foregoing, each Servicer shall be entitled to
outsource one or more separate servicing functions to a Person (each, an
"Outsourcer") that does not meet the eligibility requirements for a
Subservicer, so long as such outsourcing does not constitute the delegation of
such Servicer's obligation to perform all or substantially all of the
servicing of the related Mortgage Loans to such Outsourcer. In such event, the
use by a Servicer of any such Outsourcer shall not release the related
Servicer from any of its obligations hereunder and such Servicer shall remain
responsible hereunder for all acts and omissions of such Outsourcer as fully
as if such acts and omissions were those of such Servicer, and such Servicer
shall pay all fees and expenses of the Outsourcer from such Servicer's own
funds.
(b) At the cost and expense of a Servicer, without any right of
reimbursement from the Depositor, Trustee, or the applicable Collection
Account, such Servicer shall be entitled to terminate the rights and
responsibilities of its Subservicer and arrange for any servicing
responsibilities to be performed by a successor Subservicer meeting the
requirements set forth in Section 3.02(a), provided, however, that nothing
contained herein shall be deemed to prevent or prohibit such Servicer, at such
Servicer's option, from electing to service the related Mortgage Loans itself.
In the event that a Servicer's responsibilities and duties under this
Agreement are terminated pursuant to Section 8.01, and if requested to do so
by the Trustee, such Servicer shall at its own cost and expense terminate the
rights and responsibilities of its Subservicer as soon as
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is reasonably possible. Each Servicer shall pay all fees, expenses or
penalties necessary in order to terminate the rights and responsibilities of
its Subservicer from such Servicer's own funds without any right of
reimbursement from the Depositor, Trustee, or the applicable Collection
Account.
(c) Notwithstanding any of the provisions of this Agreement relating
to agreements or arrangements between a Servicer and its Subservicer, a
Servicer and its Outsourcer, or any reference herein to actions taken through
the Subservicer, the Outsourcer, or otherwise, no Servicer shall be relieved
of its obligations to the Depositor, Trustee or Certificateholders and shall
be obligated to the same extent and under the same terms and conditions as if
it alone were servicing and administering the related Mortgage Loans. Each
Servicer shall be entitled to enter into an agreement with its Subservicer and
Outsourcer for indemnification of such Servicer or Outsourcer, as applicable,
by such Subservicer and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification.
For purposes of this Agreement, a Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the related
Mortgage Loans that are received by a related Subservicer regardless of
whether such payments are remitted by the Subservicer to such Servicer.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving a Subservicer shall be deemed to be
between the Subservicer, and the related Servicer alone, and the Depositor,
the Trustee, the other Servicers and the Special Servicer shall have no
obligations, duties or liabilities with respect to a Subservicer including no
obligation, duty or liability of the Depositor, Trustee, the other Servicers
or the Special Servicer to pay a Subservicer's fees and expenses.
Section 3.03 Notification of Adjustments.
With respect to each Group II Mortgage Loan, the related Servicer
shall adjust the Mortgage Rate on the related Adjustment Date in compliance
with the requirements of applicable law and the related Mortgage and Mortgage
Note. The related Servicer shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage
Note and Mortgage regarding the Mortgage Rate adjustments. Upon the discovery
by the related Servicer or the receipt of notice from the Trustee that such
Servicer has failed to adjust a Mortgage Rate in accordance with the terms of
the related Mortgage Note, that Servicer shall immediately deposit in the
Certificate Account from its own funds the amount of any interest loss or
deferral caused the Trustee thereby.
Section 3.04 Trustee to Act as Servicer.
In the event that any Servicer shall for any reason no longer be a
Servicer hereunder (including by reason of an Event of Default), the Trustee
or its successor shall thereupon assume all of the rights and obligations of
such Servicer hereunder arising thereafter (except that the Trustee shall not
be (i) liable for losses of such Servicer pursuant to Section 3.09 hereof,
losses attributable to any Eligible Investment directed by such Servicer in a
Collection Account pursuant to Section 3.05(e), or any acts or omissions of
the related predecessor Servicer
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hereunder, (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03 hereof or (iv) deemed to have made any representations and warranties of
such Servicer hereunder). Any such assumption shall be subject to Section 8.02
hereof.
Each Servicer shall, upon request of the Trustee, but at the expense
of such Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement or substitute Subservicing Agreement
and the Mortgage Loans then being serviced thereunder and hereunder by such
Servicer and an accounting of amounts collected or held by it and otherwise
use its best efforts to effect the orderly and efficient transfer of the
substitute Subservicing Agreement to the assuming party.
Section 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account.
(a) Continuously from the date hereof until the principal and
interest on all Mortgage Loans have been paid in full or such Mortgage Loans
have become Liquidated Mortgage Loans, each Servicer shall proceed in
accordance with Accepted Servicing Practices to collect all payments due under
each of the related Mortgage Loans when the same shall become due and payable
to the extent consistent with this Agreement and the terms and provisions of
any related Primary Insurance Policy and shall take special care with respect
to Mortgage Loans for which a Servicer collects escrow payments in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loans and the Mortgaged
Properties, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Consistent with the foregoing, each Servicer may in its discretion (i) waive
any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Mortgage Note for a period not greater than 180
days; provided, however, that such Servicer cannot extend the maturity of any
such Mortgage Loan past the date on which the final payment is due on the
latest maturing Mortgage Loan as of the Cut-off Date. In the event of any such
arrangement, the related Servicer shall make Advances on the related Mortgage
Loan in accordance with the provisions of Section 5.01 during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements. No Servicer shall
be required to institute or join in litigation with respect to collection of
any payment (whether under a Mortgage, Mortgage Note or otherwise or against
any public or governmental authority with respect to a taking or condemnation)
if it reasonably believes that enforcing the provision of the Mortgage or
other instrument pursuant to which such payment is required is prohibited by
applicable law.
(b) Each Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
Collection Accounts, in the form of time deposit or demand accounts, titled
"[Servicer's name], in trust for the Holders of Credit Suisse First Boston
Mortgage Securities Corp., Mortgage-Backed Pass-Through Certificates, Series
2001-28" or, if established and maintained by a Subservicer on behalf of a
Servicer, "[Subservicer's name], in
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trust for [Servicer's name]" or "[Subservicer's name], as agent,
trustee and/or bailee of principal and interest custodial account for
[Servicer's name], its successors and assigns, for various owners of interest
in [Servicer's name] mortgage-backed pools." Each Collection Account shall be
an Eligible Account acceptable to the Depositor and Trustee. Notwithstanding
the foregoing, one of the Collection Accounts established by WMMSC shall be an
Investment Account. Funds deposited in a Collection Account may be drawn on by
the applicable Servicer in accordance with Section 3.08.
(c) Each Servicer shall deposit in the applicable Collection Account
on a daily basis, unless otherwise indicated, and retain therein, the
following collections remitted by Subservicers or payments received by such
Servicer and payments made by such Servicer subsequent to the Cut-off Date,
other than payments of principal and interest due on or before the Cut-off
Date:
(i) all payments on account of principal on the related Mortgage
Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the related Mortgage
Loans adjusted to the per annum rate equal to the Mortgage Rate reduced
by the related Servicing Fee Rate;
(iii) all Liquidation Proceeds on the related Mortgage Loans;
(iv) all Insurance Proceeds on the related Mortgage Loans including
amounts required to be deposited pursuant to Section 3.09 (other than
proceeds to be held in the Escrow Account and applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor in
accordance with Section 3.09);
(v) all Advances made by such Servicer pursuant to Section 5.01;
(vi) no later than the withdrawal from the Collection Account
pursuant to Section 3.08(a)(viii) each month, the applicable amount of
Compensating Interest for such Servicer for the related Prepayment
Period. The aggregate of such deposits shall be made from such Servicer's
own funds, without reimbursement therefor, up to a maximum amount per
month equal to the Compensating Interest Payment, if any, for the
Mortgage Loans serviced by that Servicer and Distribution Date.
(vii) any amounts required to be deposited by such Servicer in
respect of net monthly income from REO Property pursuant to Section 3.11;
and
(viii) any other amounts required to be deposited hereunder.
The foregoing requirements for deposit into each Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, Ancillary Income need not be deposited by such
Servicer into such Collection Account. In addition, notwithstanding the
provisions of this Section 3.05, each Servicer may deduct from amounts
received by it, prior to deposit to the applicable Collection Account, any
portion of any Scheduled Payment representing the applicable Servicing Fee. In
the event that a Servicer shall
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remit any amount not required to be remitted, it may at any time withdraw
or direct the institution maintaining the related Collection Account to
withdraw such amount from such Collection Account, any provision herein to
the contrary notwithstanding. Such withdrawal or direction may be accomplished
by delivering written notice thereof to the Trustee or such other institution
maintaining such Collection Account which describes the amounts deposited in
error in such Collection Account. Each Servicer shall maintain adequate
records with respect to all withdrawals made by it pursuant to this Section.
All funds deposited in a Collection Account shall be held in trust for the
Certificateholders until withdrawn in accordance with Section 3.08(a).
(d) On or prior to the Closing Date, the Trustee shall establish and
maintain, on behalf of the Certificateholders, the Certificate Account. The
Trustee shall, promptly upon receipt, deposit in the Certificate Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicers to the Trustee
pursuant to Section 3.08(a)(viii);
(ii) any amount deposited by the Trustee pursuant to Section 3.05(e)
in connection with any losses on Eligible Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
In the event that a Servicer shall remit to the Trustee any amount
not required to be remitted, it may at any time direct the Trustee to withdraw
such amount from the Certificate Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in
the Certificate Account. All funds deposited in the Certificate Account shall
be held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section
3.08(b). In no event shall the Trustee incur liability for withdrawals from
the Certificate Account at the direction of a Servicer.
(e) Each institution at which a Collection Account or the Certificate
Account is maintained shall either hold such funds on deposit uninvested or
shall invest the funds therein as directed in writing by the related Servicer
or the Trustee, respectively, in Eligible Investments, which shall mature not
later than (i) in the case of a Collection Account, the Servicer Remittance
Date and (ii) in the case of the Certificate Account, the Business Day
immediately preceding the Distribution Date and, in each case, shall not be
sold or disposed of prior to its maturity. All income and gain net of any
losses realized from any such balances or investment of funds on deposit in a
Collection Account shall be for the benefit of the related Servicer as
servicing compensation and shall be remitted to it monthly as provided herein.
The amount of any realized losses in a Collection Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
related Servicer in the related Collection Account. The Trustee in its
fiduciary capacity shall not be liable for the amount of any loss incurred in
respect of any investment or lack of investment of funds held in a Collection
Account and made in accordance with this Section 3.05. All income and gain net
of any losses realized from any such investment of funds on deposit in the
Certificate Account shall be for the benefit of the Trustee
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as compensation and shall be remitted to it monthly as provided herein.
The amount of any realized losses in the Certificate Account incurred
in any such account in respect of any such investments shall promptly be
deposited by the Trustee in the Certificate Account.
(f) Each Servicer shall give notice to the Trustee, each related
Seller, each Rating Agency, and the Depositor of any proposed change of the
location of the related Collection Account prior to any change thereof. The
Trustee shall give notice to each Servicer, each Seller, each Rating Agency
and the Depositor of any proposed change of the location of the Certificate
Account prior to any change thereof.
(g) Vesta shall establish and maintain a sub-account of the
collection account the Simple Interest Excess Sub-Account. Vesta will transfer
to the Simple Interest Excess Sub-Account all Net Simple Interest Excess
during each Collection Period. Vesta will withdraw amounts on deposit in the
Simple Interest Excess Sub-Account for deposit to the Collection Account prior
to each Distribution Date to pay Net Simple Interest Shortfalls. All funds in
the Simple Interest Excess Sub-Account may be invested in Eligible
Investments. So long as no event of default by Vesta shall have occurred and
be continuing, any net investment earnings on funds held in the Simple
Interest Excess Sub-Account are for the account of Vesta. Vesta will be
required to reimburse the Simple Interest Excess Sub-Account for any net
investment losses.
Section 3.06 Establishment of and Deposits to Escrow Accounts;
Permitted Withdrawals from Escrow Accounts; Payments
of Taxes, Insurance and Other Charges.
(a) To the extent required by the related Mortgage Note and not
violative of applicable law, the applicable Servicer shall segregate and hold
all funds collected and received pursuant to a Mortgage Loan constituting
Escrow Payments separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Escrow Accounts, in the
form of time deposit or demand accounts, titled, "[Servicer's Name] in trust
for Credit Suisse First Boston Mortgage Securities Corp., Mortgage-Backed
Pass-Through Certificates, Series 2001-28", or, if established and maintained
by a Subservicer on behalf of a Servicer, "[Subservicer's name], in trust for
[Servicer's name]" or "[Subservicer's name], as agent, trustee and/or bailee
of taxes and insurance custodial account for [Servicer's name], its successors
and assigns, for various owners of interest in [Servicer's name]
mortgage-backed pools. The Escrow Accounts shall be Eligible Accounts. Funds
deposited in the Escrow Account may be drawn on by the related Servicer in
accordance with Section 3.06(d). Except with respect to WMMSC, the creation of
any Escrow Account shall be evidenced by a certification in the form of
Exhibit P-1 hereto, in the case of an account established with a Servicer, or
by a letter agreement in the form of Exhibit P-2 hereto, in the case of an
account held by a depository other than a Servicer. A copy of such
certification shall be furnished to the Depositor and Trustee.
(b) Each Servicer shall deposit in its Escrow Account or Accounts on
a daily basis within two Business Days of receipt and retain therein:
(i) all Escrow Payments collected on account of the related Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
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(ii) all amounts representing Insurance Proceeds which are to be
applied to the restoration or repair of any Mortgaged Property.
(c) Each Servicer shall make withdrawals from the Escrow Account only
to effect such payments as are required under this Agreement, as set forth in
Section 3.06(d). Each Servicer shall be entitled to retain any interest paid
on funds deposited in the related Escrow Account by the depository
institution, other than interest on escrowed funds required by law to be paid
to the Mortgagor. To the extent required by law, the applicable Servicer shall
pay interest on escrowed funds to the Mortgagor notwithstanding that the
Escrow Account may be non-interest bearing or that interest paid thereon is
insufficient for such purposes.
(d) Withdrawals from the Escrow Account or Accounts may be made by
the related Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse such Servicer for any Servicing Advances made by
such Servicer with respect to a related Mortgage Loan, but only from
amounts received on the related Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the related Collection Account to reduce the
principal balance of the related Mortgage Loan in accordance with the
terms of the related Mortgage and Mortgage Note;
(v) for application to restore or repair of the related Mortgaged
Property in accordance with the procedures outlined in Section 3.09(e);
(vi) to pay to such Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in such Escrow
Account;
(vii) to remove funds inadvertently placed in the related Escrow
Account by such Servicer; and
(viii) to clear and terminate such Escrow Account on the termination
of this Agreement.
(e) With respect to each Mortgage Loan, the applicable Servicer shall
maintain accurate records reflecting the status of ground rents and taxes and
any other item which may become a lien senior to the lien of the related
Mortgage and the status of Primary Insurance Policy premiums, and fire and
hazard insurance coverage and shall obtain, from time
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to time, all bills for the payment of such charges (including renewal premiums)
and shall effect or cause to be effected payment thereof prior to the
applicable penalty or termination date.
Section 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans; Inspections.
(a) Each Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage
Loans and all accounts, insurance information and other matters relating to
this Agreement, such access being afforded without charge, but only upon
reasonable written request and during normal business hours at the office
designated by such Servicer. In addition, the Servicer (other than WMMSC) of a
Mortgage Loan (other than a WMMSC Serviced Loan) that becomes a Special
Serviced Loan shall provide to the Special Servicer reasonable access to all
records and documentation regarding such Mortgage Loan.
(b) Each Servicer shall inspect the related Mortgaged Properties as
often as deemed necessary by such Servicer in such Servicer's sole discretion,
to assure itself that the value of such Mortgaged Property is being preserved.
In addition, if any Mortgage Loan is more than 60 days delinquent, the
applicable Servicer shall conduct subsequent inspections in accordance with
Accepted Servicing Practices or as may be required by the primary mortgage
guaranty insurer. Each Servicer shall keep a written or electronic report of
each such inspection.
Section 3.08 Permitted Withdrawals from the Collection Accounts and
Certificate Account.
(a) Each Servicer may from time to time make withdrawals from the
related Collection Account for the following purposes:
(i) to pay to such Servicer (to the extent not previously retained
by such Servicer) the servicing compensation to which it is entitled
pursuant to Section 3.14, and to pay to such Servicer, as additional
servicing compensation, earnings on or investment income with respect to
funds in or credited to such Collection Account;
(ii) to reimburse such Servicer for unreimbursed Advances made by
it, such right of reimbursement pursuant to this subclause (ii) being
limited to amounts received on the Mortgage Loan(s) in respect of which
any such Advance was made (including without limitation, late recoveries
of payments, Liquidation Proceeds and Insurance Proceeds to the extent
received by such Servicer);
(iii) to reimburse such Servicer for any Nonrecoverable Advance
previously made or any amount expended pursuant to Section 3.11(a);
(iv) to reimburse such Servicer for (A) unreimbursed Servicing
Advances, such Servicer's right to reimbursement pursuant to this clause
(A) with respect to any Mortgage Loan being limited to amounts received
on such Mortgage Loan which represent late payments of principal and/or
interest (including, without limitation, Liquidation Proceeds and
Insurance Proceeds with respect to such Mortgage Loan)
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respecting which any such advance was made and (B) for unpaid Servicing Fees
as provided in Section 3.11 hereof;
(v) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02, 2.03 or 3.11, all amounts received thereon after the date
of such purchase;
(vi) to make any payments required to be made pursuant to Section
2.07(g);
(vii) to withdraw any amount deposited in such Collection Account
and not required to be deposited therein;
(viii) on the Servicer Remittance Date, to withdraw an amount equal
to the portion of the Interest Remittance Amount and the Principal
Remittance Amount applicable to the Mortgage Loans serviced by such
Servicer or portion thereof for such Distribution Date and remit such
amount to the Trustee for deposit in the Certificate Account; and
(ix) to clear and terminate such Collection Account upon termination
of this Agreement pursuant to Section 10.01 hereof.
Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Collection Account pursuant to such subclauses
(i), (ii), (iv) and (v). Prior to making any withdrawal from a Collection
Account pursuant to subclause (iii) for a Nonrecoverable Advance, the related
Servicer shall deliver to the Trustee a certificate of a Servicing Officer
indicating the amount of any previous Advance or Servicing Advance determined
by such Servicer to be a Nonrecoverable Advance and identifying the related
Mortgage Loans(s), and their respective portions of such Nonrecoverable
Advance.
(b) The Trustee shall withdraw funds from the Certificate Account for
distributions to Certificateholders, and TGIC, in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of any
taxes that it is authorized to withhold pursuant to Section 2.07). In
addition, the Trustee may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to pay to itself any investment income or other benefit earned
from balances in the Certificate Account prior to distributions to
Certificateholders;
(ii) to pay to TGIC, the TGIC Fee with respect to each TGIC Mortgage
Loan;
(iii) to withdraw and return to the applicable Servicer for deposit
to the applicable Collection Account any amount deposited in the
Certificate Account and not required to be deposited therein; and
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(iv) to clear and terminate the Certificate Account upon termination
of the Agreement pursuant to Section 10.01 hereof.
Section 3.09 Maintenance of Hazard Insurance; Mortgage Impairment
Insurance and Primary Insurance Policy; Claims;
Restoration of Mortgaged Property.
(a) Each Servicer shall cause to be maintained for each Mortgage Loan
hazard insurance such that all buildings upon the Mortgaged Property are
insured by a generally acceptable insurer rated either: "V" or better in the
current Best's Key Rating Guide ("Best's") or acceptable to FNMA or FHLMC
against loss by fire, hazards of extended coverage and such other hazards as
are customary in the area where the Mortgaged Property is located, in an
amount which is at least equal to the lesser of (i) the replacement value of
the improvements securing such Mortgage Loan and (ii) the greater of (A) the
outstanding principal balance of the Mortgage Loan and (B) an amount such that
the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the
Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), the related Servicer shall cause a
flood insurance policy to be maintained with respect to such Mortgage Loan.
Such policy shall meet the requirements of the current guidelines of the
Federal Insurance Administration and be in an amount representing coverage
equal to the lesser of (i) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement cost basis (or
the unpaid principal balance of the mortgage if replacement cost coverage is
not available for the type of building insured) and (ii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973,
as amended.
If a Mortgage is secured by a unit in a condominium project, the
related Servicer shall verify that the coverage required of the owner's
association, including hazard, flood, liability, and fidelity coverage, is
being maintained in accordance with the requirements of the Servicer for
mortgage loans that it services on its own account.
Each Servicer shall cause to be maintained on each Mortgaged Property
such other additional special hazard insurance as may be required pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance, or pursuant to the requirements of
any Primary Insurance Policy insurer, or as may be required to conform with
Accepted Servicing Practices to the extent permitted by the Mortgage Note, the
Mortgage or applicable law; provided, however, that the Servicer shall not be
required to bear the cost of such insurance.
All policies required hereunder shall name the related Servicer as
loss payee and shall be endorsed with standard or union mortgagee clauses,
without contribution, which shall provide for prior written notice of any
cancellation, reduction in amount or material change in coverage.
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A Servicer shall not interfere with the Mortgagor's freedom of choice
at the origination of such Mortgage Loan in selecting either his insurance
carrier or agent, provided, however, that such Servicer shall not accept any
such insurance policies from insurance companies unless such companies are
rated: B:III or better in Best's or acceptable to FNMA or FHLMC and are
licensed to do business in the jurisdiction in which the Mortgaged Property is
located. The related Servicer shall determine that such policies provide
sufficient risk coverage and amounts, that they insure the property owner, and
that they properly describe the property address.
Pursuant to Section 3.05, any amounts collected by a Servicer under
any such policies (other than amounts to be deposited in the related Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with such Servicer's normal servicing
procedures) shall be deposited in the related Collection Account (subject to
withdrawal pursuant to Section 3.08(a)).
Any cost incurred by a Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added
to the principal balance of the Mortgage Loan, notwithstanding that the terms
of the Mortgage Loan so permit. Such costs shall constitute a Servicing
Advance and will be reimbursable to the Servicer to the extent permitted by
Section 3.08 hereof. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) In the event that a Servicer shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the related Mortgage Loans, then, to the extent
such policy provides coverage in an amount equal to the amount required
pursuant to Section 3.09(a) and otherwise complies with all other requirements
of Section 3.09(a), it shall conclusively be deemed to have satisfied its
obligations as set forth in Section 3.09(a). Any amounts collected by a
Servicer under any such policy relating to a Mortgage Loan shall be deposited
in the related Collection Account subject to withdrawal pursuant to Section
3.08(a). Such policy may contain a deductible clause, in which case, in the
event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 3.09(a), and there shall have been a
loss which would have been covered by such policy, the related Servicer shall
deposit in the related Collection Account at the time of such loss the amount
not otherwise payable under the blanket policy because of such deductible
clause, such amount to be deposited from such Servicer's funds, without
reimbursement therefor. Upon request of the Trustee, a Servicer shall cause to
be delivered to the Trustee a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Trustee. In connection with its activities as Servicer of the related Mortgage
Loans, such Servicer agrees to present, on behalf of itself, the Depositor,
and the Trustee for the benefit of the Certificateholders, claims under any
such blanket policy.
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(c) Subject to applicable law, with respect to each Mortgage Loan
with a Loan-to-Value Ratio in excess of 80% which the applicable Seller
represented to be covered by a Primary Insurance Policy as of the Cut-off
Date, the related Servicer shall, without any cost to the Depositor or
Trustee, maintain or cause the Mortgagor to maintain in full force and effect
a Primary Insurance Policy insuring that portion of the Mortgage Loan in
excess of 75% of value, and shall pay or shall cause the Mortgagor to pay, the
premium thereon on a timely basis, until the loan-to-value ratio of such
Mortgage Loan is reduced to 80%, based on either (i) a current appraisal of
the Mortgaged Property or (ii) the appraisal of the Mortgaged Property
obtained at the time the Mortgage Loan was originated. In the event that such
Primary Insurance Policy shall be terminated, the related Servicer shall
obtain from another Qualified Insurer a comparable replacement policy, with a
total coverage equal to the remaining coverage of such terminated Primary
Insurance Policy. If the insurer shall cease to be a Qualified Insurer, the
related Servicer shall determine whether recoveries under the Primary
Insurance Policy are jeopardized for reasons related to the financial
condition of such insurer, it being understood that such Servicer shall in no
event have any responsibility or liability for any failure to recover under
the Primary Insurance Policy for such reason. If the related Servicer
determines that recoveries are so jeopardized, it shall notify the Mortgagor,
if required, and obtain from another Qualified Insurer a replacement insurance
policy. The related Servicer shall not take any action which would result in
noncoverage under any applicable Primary Insurance Policy of any loss which,
but for the actions of such Servicer would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to be
entered into pursuant to Section 3.10, each Servicer shall promptly notify the
insurer under the related Primary Insurance Policy, if any, of such assumption
or substitution of liability in accordance with the terms of such Primary
Insurance Policy and shall take all actions which may be required by such
insurer as a condition to the continuation of coverage under such Primary
Insurance Policy provided that such required actions are in compliance with
all applicable law. If such Primary Insurance Policy is terminated as a result
of such assumption or substitution of liability, the related Servicer shall
obtain a replacement Primary Insurance Policy as provided above; provided that
under applicable law and the terms of the related Mortgage Note and Mortgage
the cost of such policy may be charged to the successor Mortgagor.
With respect to the TGIC Mortgage Loans, the TGIC Policy shall be
maintained by the Trustee for the life of such Mortgage Loans, unless
otherwise prohibited by law. The applicable Servicer shall submit all claims
required to be made under the TGIC Policy in a timely fashion and shall
otherwise comply with the terms of the TGIC Policy. Each Servicer shall
deposit all amounts received under the TGIC Policy into the Collection
Account. The TGIC Fee shall be paid by the Trustee from amounts withdrawn from
the Certificate Account.
With respect to Mortgage Loans which are not TGIC Mortgage Loans, the
applicable Servicer agrees to effect timely payment of the premiums on each
Primary Insurance Policy, and such payments shall constitute Servicing
Advances reimbursable to such Servicer pursuant to Section 3.08.
(d) In connection with its activities as servicer, each Servicer
agrees to prepare and present, on behalf of itself, the Depositor, the Trustee
and the Certificateholders, claims to the insurer under any Primary Insurance
Policy in a timely fashion in accordance with the terms of such Primary
Insurance Policy and, in this regard, to take such reasonable action as
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shall be necessary to permit recovery under any Primary Insurance Policy
respecting defaulted Mortgage Loans. Pursuant to Section 3.05, any
amounts collected by a Servicer under any Primary Insurance Policy shall be
deposited in the related Collection Account, subject to withdrawal pursuant to
Section 3.08.
(e) A Servicer need not obtain the approval of the Trustee prior to
releasing any Insurance Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. At a minimum, each Servicer
shall comply with the following conditions in connection with any such release
of Insurance Proceeds:
(i) such Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required
approvals with respect thereto;
(ii) such Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens; and
(iii) pending repairs or restoration, such Servicer shall place the
Insurance Proceeds in the related Escrow Account.
(f) If the Trustee is named as an additional loss payee, the related
Servicer is hereby empowered to endorse any loss draft issued in respect of
such a claim in the name of the Trustee.
Section 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) Each Servicer shall use its best efforts to enforce any
"due-on-sale" provision contained in any related Mortgage or Mortgage Note and
to deny assumption by the person to whom the Mortgaged Property has been or is
about to be sold whether by absolute conveyance or by contract of sale, and
whether or not the Mortgagor remains liable on the Mortgage and the Mortgage
Note. When the Mortgaged Property has been conveyed by the Mortgagor, the
related Servicer shall, to the extent it has knowledge of such conveyance,
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that such Servicer
shall not exercise such rights if prohibited by law from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related Primary Insurance Policy, if any.
(b) If a Servicer reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, such Servicer shall enter into (i)
an assumption and modification agreement with the person to whom such property
has been conveyed, pursuant to which such person becomes liable under the
Mortgage Note and the original Mortgagor remains liable thereon or (ii) in the
event such Servicer is unable under applicable law to require that the
original Mortgagor remain liable under the Mortgage Note, a substitution of
liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of
the Mortgaged Property is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, a Servicer shall not be
deemed to be in default under this Section by reason of any transfer or
assumption which such
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Servicer reasonably believes it is restricted by law from preventing, for
any reason whatsoever. In connection with any such assumption, no material
term of the Mortgage Note, including without limitation, the Mortgage Rate
borne by the related Mortgage Note, the term of the Mortgage Loan or the
outstanding principal amount of the Mortgage Loan shall be changed.
(c) To the extent that any Mortgage Loan is assumable, the related
Servicer shall inquire diligently into the creditworthiness of the proposed
transferee, and shall use the underwriting criteria for approving the credit
of the proposed transferee which are used by FNMA with respect to underwriting
mortgage loans of the same type as the Mortgage Loans. If the credit of the
proposed transferee does not meet such underwriting criteria, the related
Servicer diligently shall, to the extent permitted by the Mortgage or the
Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
(d) Subject to each Servicer's duty to enforce any due-on-sale clause
to the extent set forth in this Section 3.10, in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or
if an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, such Servicer shall prepare and
deliver or cause to be prepared and delivered to the Trustee for signature and
shall direct, in writing, the Trustee to execute the assumption agreement with
the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such
Person. In connection with any such assumption, no material term of the
Mortgage Note may be changed. Together with each such substitution, assumption
or other agreement or instrument delivered to the Trustee for execution by it,
the related Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The related Servicer shall notify the Trustee
that any such substitution or assumption agreement has been completed by
forwarding to the Trustee the original of such substitution or assumption
agreement, which in the case of the original shall be added to the related
Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by a Servicer for entering into
an assumption or substitution of liability agreement will be retained by such
Servicer as additional servicing compensation.
Section 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
(a) Each Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
related Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
In connection with such foreclosure or other conversion, each Servicer shall
take such action as (i) such Servicer would take under similar circumstances
with respect to a similar mortgage loan held for its own account for
investment, (ii) shall be consistent with Accepted Servicing Practices, (iii)
such Servicer shall determine consistently
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with Accepted Servicing Practices to be in the best interest of the
Trustee and Certificateholders, and (iv) is consistent with the requirements
of the insurer under any Required Insurance Policy; provided, however, that
such Servicer shall not be required to expend its own funds in connection with
any foreclosure or towards the restoration of any property unless it shall
determine (i) that such restoration and/or foreclosure will increase the
proceeds of liquidation of the related Mortgage Loan after reimbursement to
itself of such expenses and (ii) that such expenses will be recoverable to it
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the related Collection Account). The related
Servicer shall be responsible for all other costs and expenses incurred by it
in any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof from the Liquidation Proceeds with respect to the
related Mortgaged Property or otherwise pursuant to Section 3.08.
Notwithstanding anything to the contrary contained in this Agreement,
in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the related Servicer has reasonable cause to believe
that a Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, or if the Trustee otherwise requests, an environmental inspection or
review of such Mortgaged Property conducted by a qualified inspector shall be
arranged for by such Servicer. Upon completion of the inspection, the related
Servicer shall promptly provide the Trustee with a written report of
environmental inspection.
In the event the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
the related Servicer shall not proceed with foreclosure or acceptance of a
deed in lieu of foreclosure if the estimated costs of the environmental clean
up, as estimated in the environmental inspection report, together with the
Servicing Advances and Advances made by such Servicer and the estimated costs
of foreclosure or acceptance of a deed in lieu of foreclosure exceeds the
estimated value of the Mortgaged Property. If however, the aggregate of such
clean up and foreclosure costs, Advances and Servicing Advances are less than
or equal to the estimated value of the Mortgaged Property, then the related
Servicer may, in its reasonable judgment and in accordance with Accepted
Servicing Practices, choose to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure and such Servicer shall be reimbursed for all
reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as
applicable, from the related Liquidation Proceeds, or if the Liquidation
Proceeds are insufficient to fully reimburse such Servicer, such Servicer
shall be entitled to be reimbursed from amounts in the related Collection
Account pursuant to Section 3.08(a) hereof. In the event the related Servicer
does not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure pursuant to the first sentence of this paragraph, such Servicer
shall be reimbursed for all Advances and Servicing Advances made with respect
to the related Mortgaged Property from the related Collection Account pursuant
to Section 3.08(a) hereof, and such Servicer shall have no further obligation
to service such Mortgage Loan under the provisions of this Agreement.
(b) With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. If
the deed or certificate of sale is taken in the name of the Trustee, the
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The related Servicer
shall ensure that the title to such REO Property references this Agreement and
the Trustee's capacity hereunder.
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Pursuant to its efforts to sell such REO Property, the related Servicer
shall in accordance with Accepted Servicing Practices manage, conserve,
protect and operate each REO Property for the purpose of its prompt
disposition and sale. The related Servicer, either itself or through an agent
selected by such Servicer, shall manage, conserve, protect and operate the REO
Property in the same manner that it manages, conserves, protects and operates
other foreclosed property for its own account, and in the same manner that
similar property in the same locality as the REO Property is managed. Upon
request, the related Servicer shall furnish to the Trustee on or before each
Distribution Date a statement with respect to any REO Property covering the
operation of such REO Property for the previous calendar month and such
Servicer's efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
calendar month. That statement shall be accompanied by such other information
as the Trustee shall reasonably request and which is necessary to enable the
Trustee to comply with the reporting requirements of the REMIC Provisions. The
net monthly rental income, if any, from such REO Property shall be deposited
in the related Collection Account no later than the close of business on each
Determination Date. The related Servicer shall perform the tax reporting and
withholding required by Sections 1445 and 6050J of the Code with respect to
foreclosures and abandonments, the tax reporting required by Section 6050H of
the Code with respect to the receipt of mortgage interest from individuals and
any tax reporting required by Section 6050P of the Code with respect to the
cancellation of indebtedness by certain financial entities, by preparing such
tax and information returns as may be required, in the form required, and
delivering the same to the Trustee for filing.
To the extent consistent with Accepted Servicing Practices, the
related Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in an amount which is equal to the
outstanding principal balance of the related Mortgage Loan (as reduced by any
amount applied as a reduction of principal at the time of acquisition of the
REO Property), liability insurance and, to the extent required and available
under the Flood Disaster Protection Act of 1973, as amended, flood insurance
in the amount required above.
(c) In the event that the Trust Fund acquires any Mortgaged Property
as aforesaid or otherwise in connection with a default or imminent default on
a Mortgage Loan, the related Servicer shall dispose of such Mortgaged Property
prior to three years after the end of the calendar year of its acquisition by
the Trust Fund unless (i) the Trustee shall have been supplied with an Opinion
of Counsel to the effect that the holding by the Trust Fund of such Mortgaged
Property subsequent to such three-year period will not result in the
imposition of taxes on "prohibited transactions" of the REMIC hereunder as
defined in section 860F of the Code or cause the REMIC hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding, in which
case the Trust Fund may continue to hold such Mortgaged Property (subject to
any conditions contained in such Opinion of Counsel) or (ii) the applicable
Servicer shall have applied for, prior to the expiration of such three-year
period, an extension of such three-year period in the manner contemplated by
Section 856(e)(3) of the Code, in which case the three-year period shall be
extended by the applicable extension period. Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Trust Fund
shall be rented (or allowed to continue to be rented) or otherwise used for
the production of income by or on behalf of the Trust Fund in such a manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of section 860G(a)(8) of
the Code or (ii) subject the REMIC hereunder to the imposition of any federal,
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state or local income taxes on the income earned from such Mortgaged Property
under Section 860G(c) of the Code or otherwise, unless the related Servicer
has agreed to indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of
a deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the related Servicer will cause compliance with the provisions
of Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto)
necessary to assure that no withholding tax obligation arises with respect to
the proceeds of such foreclosure except to the extent, if any, that proceeds
of such foreclosure are required to be remitted to the obligors on such
Mortgage Loan.
(d) The decision of a Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by such Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding. The income earned from the management of any REO Properties, net
of reimbursement to such Servicer for all expenses incurred (including but not
limited to any property or other taxes) in connection with such management and
net of applicable accrued and unpaid Servicing Fees, and unreimbursed Advances
and Servicing Advances, shall be applied to the payment of principal of and
interest on the related defaulted Mortgage Loans (with interest accruing as
though such Mortgage Loans were still current) and all such income shall be
deemed, for all purposes in this Agreement, to be payments on account of
principal and interest on the related Mortgage Notes and shall be deposited
into the related Collection Account. To the extent the net income received
during any calendar month is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Rate on the
related Mortgage Loan for such calendar month, such excess shall be considered
to be a partial prepayment of principal of the related Mortgage Loan.
(e) The proceeds from any liquidation of a Mortgage Loan, as well as
any income from an REO Property, will be applied in the following order of
priority: first, to reimburse the related Servicer for any related
unreimbursed Servicing Advances and Servicing Fees; second, to reimburse such
Servicer for any unreimbursed Advances; third, to reimburse the related
Collection Account for any Nonrecoverable Advances (or portions thereof) that
were previously withdrawn by such Servicer pursuant to Section 3.08(a)(iii)
that related to such Mortgage Loan; fourth, to accrued and unpaid interest (to
the extent no Advance has been made for such amount or any such Advance has
been reimbursed) on the Mortgage Loan or related REO Property, at the per
annum rate equal to the related Mortgage Rate reduced by the related Servicing
Fee Rate and the TGIC Fee Rate, if applicable, to the Due Date occurring in
the month in which such amounts are required to be distributed; and fifth, as
a recovery of principal of the Mortgage Loan. Excess Proceeds, if any, from
the liquidation of a Liquidated Mortgage Loan will be retained by the related
Servicer as additional servicing compensation pursuant to Section 3.14.
(f) Each Servicer of the Mortgage Loans may (but is not obligated to)
enter into a special servicing agreement with an unaffiliated holder of a 100%
Percentage Interest of the most junior class of Subordinate Certificates,
subject to each Rating Agency's acknowledgment that the Ratings of the
Certificates in effect immediately prior to the entering
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into such agreement would not be qualified, downgraded or withdrawn and
the Certificates would not be placed on credit review status (except for
possible upgrading) as a result of such agreement. Any such agreement may
contain provisions whereby such Holder may (i) instruct the related Servicer
to commence or delay foreclosure proceedings with respect to delinquent
Mortgage Loans and will contain provisions for the deposit of cash with such
Servicer by the Holder that would be available for distribution to
Certificateholders if Liquidation Proceeds are less than they otherwise may
have been had such Servicer acted in accordance with its normal procedures,
(ii) purchase delinquent Mortgage Loans from the Trust Fund immediately prior
to the commencement of foreclosure proceedings at a price equal to the
aggregate outstanding Principal Balance of such Mortgage Loans plus accrued
interest thereon at the applicable Mortgage Rate through the last day of the
month in which such Mortgage Loan is purchased, and/or (iii) assume all of the
servicing rights and obligations with respect to delinquent Mortgage Loans so
long as such Holder (A) meets the requirements for a Subservicer set forth in
Section 3.02(a), and (B) will service such Mortgage Loans in accordance with
this Agreement.
(g) Vesta, at its option, may (but is not obligated to) purchase from
the Trust Fund, (a) any Mortgage Loan that is delinquent in payment 90 or more
days or (b) any related Mortgage Loan with respect to which there has been
initiated legal action or other proceedings for the foreclosure of the related
Mortgaged Property either judicially or non-judicially. Any such purchase
shall be made by Vesta with its own funds at a price equal to the Purchase
Price for such Mortgage Loan.
Section 3.12 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by a
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, such Servicer will immediately notify the Trustee
or the Custodian on its behalf by delivering, or causing to be delivered a
"Request for Release" substantially in the form of Exhibit K. Upon receipt of
such request, the Trustee shall within three Business Days release the related
Mortgage File to the related Servicer, and the Trustee shall within three
Business Days of such Servicer's direction execute and deliver to such
Servicer the request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage
in each case provided by such Servicer, together with the Mortgage Note with
written evidence of cancellation thereon. Expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the related Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any fidelity bond or errors or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee or the Custodian on its behalf
shall, within three Business Days of delivery to the Trustee of a Request for
Release in the form of Exhibit K signed by a Servicing Officer, release the
Mortgage File to the related Servicer. Subject to the further limitations set
forth below, the related Servicer shall cause the Mortgage File or documents
so released to be returned to the Trustee or the Custodian on its behalf when
the need therefor by such Servicer no longer exists, unless the Mortgage Loan
is liquidated and the proceeds thereof are deposited in the related Collection
Account, in which
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case such Servicer shall deliver to the Trustee a Request for Release in the
form of Exhibit K, signed by a Servicing Officer.
If a Servicer at any time seeks to initiate a foreclosure proceeding
in respect of any Mortgaged Property as authorized by this Agreement, such
Servicer shall deliver or cause to be delivered to the Trustee or the
Custodian on its behalf, for signature, as appropriate, any court pleadings,
requests for trustee's sale or other documents necessary to effectuate such
foreclosure or any legal action brought to obtain judgment against the
Mortgagor on the Mortgage Note or the Mortgage or to obtain a deficiency
judgment or to enforce any other remedies or rights provided by the Mortgage
Note or the Mortgage or otherwise available at law or in equity.
Section 3.13 Documents, Records and Funds in Possession of a Servicer
to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, each Servicer
shall transmit to the Trustee as required by this Agreement all documents and
instruments in respect of a Mortgage Loan coming into the possession of the
related Servicer from time to time required to be delivered to the Trustee
pursuant to the terms hereof and shall account fully to the Trustee for any
funds received by such Servicer or which otherwise are collected by such
Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan. All Mortgage Files and funds collected or held by, or under the
control of, a Servicer in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in a Collection Account,
shall be held by the related Servicer for and on behalf of the Trustee and
shall be and remain the sole and exclusive property of the Trustee, subject to
the applicable provisions of this Agreement. Each Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that are
deposited in the related Collection Account, Certificate Account or any
related Escrow Account, or any funds that otherwise are or may become due or
payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Mortgage File or any funds collected on, or in connection
with, a Mortgage Loan, except, however, that such Servicer shall be entitled
to set off against and deduct from any such funds any amounts that are
properly due and payable to such Servicer under this Agreement.
Section 3.14 Servicing Fee.
(a) As compensation for its services hereunder, each Servicer shall
be entitled to withdraw from the applicable Collection Account or to retain
from interest payments on the related Mortgage Loans the amount of its
Servicing Fee for each Mortgage Loan serviced by it, less any amounts in
respect of its Servicing Fee payable by such Servicer pursuant to Section
3.05(c)(vi). The Servicing Fee is limited to, and payable solely from, the
interest portion of such Scheduled Payments collected by the related Servicer
or as otherwise provided in Section 3.08(a). In connection with the servicing
of any Special Serviced Mortgage Loan, the Special Servicer shall receive the
Servicing Fee and Ancillary Income for each such Mortgage Loan as its
compensation.
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(b) Additional servicing compensation in the form of Ancillary Income
shall be retained by the related Servicer. Each Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder (including the payment of any expenses incurred in connection with
any Subservicing Agreement entered into pursuant to Section 3.02 and the
payment of any premiums for insurance required pursuant to Section 3.18) and
shall not be entitled to reimbursement thereof except as specifically provided
for in this Agreement.
Section 3.15 Access to Certain Documentation.
Each Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Subordinate Certificates and the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the related Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Such access shall
be afforded without charge, but only upon reasonable and prior written request
and during normal business hours at the offices designated by such Servicer.
Nothing in this Section shall limit the obligation of any Servicer to observe
any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of such Servicer to provide access as provided in
this Section as a result of such obligation shall not constitute a breach of
this Section. Nothing in this Section 3.15 shall require any Servicer to
collect, create, collate or otherwise generate any information that it does
not generate in its usual course of business.
Section 3.16 Annual Statement as to Compliance.
Each Servicer shall deliver to the Depositor, the Rating Agencies,
and the Trustee on or before 120 days after the end of such Servicer's fiscal
year, commencing in its 2003 fiscal year, an Officer's Certificate stating, as
to the signer thereof, that (i) a review of the activities of such Servicer
during the preceding calendar year and of the performance of such Servicer
under this Agreement has been made under such officer's supervision, and (ii)
to the best of such officer's knowledge, based on such review, such Servicer
has fulfilled all its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and the action being taken by such Servicer to cure such default.
Section 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 120 days after the end of each Servicer's fiscal year,
commencing in its 2003 fiscal year, each Servicer at its expense shall cause a
nationally or regionally recognized firm of independent public accountants
(who may also render other services to such Servicer, a Seller or any
affiliate thereof) which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Trustee, and the Depositor to
the effect that (i) with respect to each Servicer other than WMMSC, such firm
has examined certain documents and records relating to the servicing of
mortgage loans which such Servicer is servicing, including the related
Mortgage Loans, and that, on the basis of such examination, conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs, nothing has come to their
attention which would indicate that such servicing has not been
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conducted in compliance with Accepted Servicing Practices, except for (a)
such exceptions as such firm shall believe to be immaterial, and (b) such
other exceptions as shall be set forth in such statement and (ii) with respect
to WMMSC as servicer of the WMMSC Serviced Loans, in connection with the
firm's examination of the financial statements as of the previous December 31
of WMMSC's parent corporation (which shall include a limited examination of
WMMSC's financial statements), nothing came to their attention that indicated
that WMMSC was not in compliance with the terms of this Agreement, except for
(a) such exceptions as such firm believes to be immaterial, and (b) such other
exceptions as are set forth in such statement. In rendering such statement,
such firm may rely, as to matters relating to direct servicing of mortgage
loans by Subservicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs (rendered within one year of such
statement) of independent public accountants with respect to the related
Subservicer. Copies of such statement shall be provided by the Trustee to any
Certificateholder upon request at the related Servicer's expense, provided
such statement is delivered by such Servicer to the Trustee.
Section 3.18 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
Each Servicer shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the related Mortgage Loans ("Servicer Employees"). Any such
Fidelity Bond and Errors and Omissions Insurance Policy shall be in the form
of the Mortgage Banker's Blanket Bond and shall protect and insure the related
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Servicer Employees. Such Fidelity
Bond and Errors and Omissions Insurance Policy also shall protect and insure
each Servicer against losses in connection with the release or satisfaction of
a related Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.18 requiring such
Fidelity Bond and Errors and Omissions Insurance Policy shall diminish or
relieve a Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by FNMA. Upon the
request of the Trustee, the related Servicer shall cause to be delivered to
the Trustee a certificate of insurance of the insurer and the surety including
a statement from the surety and the insurer that such fidelity bond and
insurance policy shall in no event be terminated or materially modified
without 30 days' prior written notice to the Trustee.
Section 3.19 Special Serviced Mortgage Loans
If directed by the Special Servicer and solely at the Special
Servicer's option, a Servicer, other than WMMSC, shall transfer the servicing
of any Mortgage Loan, other than a WMMSC Serviced Loan, 91 days or more
delinquent to the Special Servicer. The Special Servicer shall thereupon
assume all of the rights and obligations of such Servicer hereunder arising
thereafter and the related predecessor Servicer shall have no further
responsibility with respect to such Mortgage Loan (except that the Special
Servicer shall not be (i) liable for losses
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of such Servicer pursuant to Section 3.09 hereof or for any acts or
omissions of the related predecessor Servicer hereunder prior to the servicing
transfer date, (ii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder including, but not limited to, repurchases or
substitutions of Mortgage Loans pursuant to Section 2.02 or 2.03 hereof or
(iii) deemed to have made any representations and warranties of such
predecessor Servicer hereunder). Upon the transfer of the servicing of any
such Mortgage Loan to the Special Servicer, the Special Servicer shall be
entitled to the Servicing Fee and other compensation accruing after the
servicing transfer date with respect to such Mortgage Loans pursuant to
Section 3.14.
In connection with the transfer of the servicing of any Mortgage Loan
to the Special Servicer, each Servicer shall, at the Special Servicer's
expense, deliver to the Special Servicer all documents and records relating to
such Mortgage Loans and an accounting of amounts collected or held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the servicing to the Special Servicer. On the servicing transfer date, the
Special Servicer shall reimburse the related predecessor Servicer for all
unreimbursed Advances, Servicing Advances and Servicing Fees relating to the
Mortgage Loans for which the servicing is being transferred. The Special
Servicer shall be entitled to be reimbursed for all such Advances, Servicing
Advances and Servicing Fees paid by the Special Servicer to the predecessor
servicer pursuant to Section 3.08. In addition, the Special Servicer shall
amend the Mortgage Loan Schedule to reflect that such Mortgage Loans are
Special Serviced Mortgage Loans.
With respect to any Special Serviced Mortgage Loan, all references
herein to Servicer shall be deemed to include the Special Servicer, as
servicer, of such Special Serviced Mortgage Loan.
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ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01 Priorities of Distribution.
(A) On each Distribution Date, with respect to the Group I Certificates
and the Group II Certificates the Trustee shall determine the amounts
to be distributed to each Class of Certificates, as follows:
(a) with respect to Certificate Group I and from the Available
Distribution Amount relating to Loan Group I:
(i) first, to the Class I-P Certificates, the Class I-P
Principal Distribution Amount for such Distribution Date.
(ii) second, concurrently, to the Group I Certificates (other
than the Group I- B, Class I-P and Class I-A-3
Certificates), an amount allocable to interest equal to the
related Interest Distribution Amount for such Distribution
Date, any shortfall being allocated pro rata among the
Certificates of such Classes in proportion to the amount of
the Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(iii) third, on the Distribution Date in November 2006 or
thereafter,from the Available Distribution Amount for Loan
Group I remaining after giving effect to the distributions
pursuant to clauses (a)(i) and (ii) above, to the Class PP
Certificates, the related Senior Principal Distribution
Amount, until the Class Principal Balance of the Class PP
Certificates has been reduced to zero;
(iv) fourth, from the Available Distribution Amount for Loan
Group I remaining after giving effect to the distributions
pursuant to clauses (a)(i)- (iii) above, to the Class AR
Certificates, the related Senior Principal Distribution
Amount, until the Class Principal Balance of the Class
ARCertificates has been reduced to zero;
(v) fifth, from the Available Distribution Amount for Loan
Group I remaining after giving effect to the distributions
pursuant to clause (a)(i)-(iv) above, to the Class I-A-1
and Class I-A-3 Certificates, pro rata based on their
related Class Principal Balances, the related Senior
Principal Distribution Amount, until their respective Class
Principal Balances have each been reduced to zero; and
(vi) sixth, from the Available Distribution Amount for Loan
Group I remaining after giving effect to the distributions
pursuant to clauses (a)(i)- (v) above, to the Class PP
Certificates, the related Senior
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Principal Distribution Amount, until the Class Principal
Balance of the Class PPCertificates has been reduced to
zero;
(b) with respect to Certificate Group II and from the Available
Distribution Amount relating to Loan Group II:
(i) first, from the Available Distribution Amount for Loan
Group II, to the Class II-A-1 Certificates, an amount
allocable to interest equal to the related Interest
Distribution Amount for such Distribution Date, any
shortfall being allocated to the Certificates of such Class
in proportion to the amount of the Interest Distribution
Amount that would have been distributed in the absence of
such shortfall; and
(ii) second, from the Available Distribution Amount for Loan
Group II remaining after giving effect to the distributions
pursuant to clause (b)(i) above, to the Class II-A-1
Certificates, the related Senior Principal Distribution
Amount until the Class Principal Balance of the Class
II-A-1 Certificates has been reduced to zero;
(c) from the Available Distribution Amount relating to Loan
Group I remaining after the distributions pursuant to (a)
above, subject to paragraph 4.01(B) and (C) below, and
further subject to any payment to the Group I Certificates
as described in Section 4.06, to the Class I-P Certificates
and each Class of Subordinate Certificates relating to Loan
Group I, subject to paragraphs (B) and (C) below, in the
following order of priority:
(i) first, to the Class I-P Certificates, to the extent of
amounts otherwise available to pay the Subordinate
Principal Distribution Amount (without regard to clause (B)
of that definition) on that Distribution Date, an amount
equal to the sum of (A) principal in an amount equal to the
Class I-P Fraction of any loss on a Class I-P Mortgage
Loan, respectively, incurred in the previous calendar month
(other than a loss that has been allocated by Pro Rata
Allocation) and (B) the sum of the amounts, if any, by
which the amount described in clause (A) above on each
prior Distribution Date exceeded the amount actually
distributed on those prior Distribution Dates and not
subsequently distributed; provided, however, that any
amounts distributed in respect of losses pursuant to this
paragraph (c)(i) will not cause a further reduction in the
Certificate Principal Balance on the Class I-P
Certificates; provided, further, that if the amount
otherwise avaliable to pay the Subordinate Principal
Distribution Amount (without regard to clause (B) of that
definition) for any Distribution Date is insufficient to
cover such outstanding principal losses as provided above,
then that amount will be allocated pro rata to the Class
I-P Certificates based on the amount allocable to the Class
I-P Certificates pursuant to this paragraph (c)(i).
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(ii) second, to the Class I-B-1 Certificates, an amount
allocable to interest equal to the Interest
Distribution Amount for such Class for such
Distribution Date;
(iii) third, to the Class I-B-1 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance
of Class I-B-1 Certificates has been reduced to zero;
(iv) fourth, to the Class I-B-2 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(v) fifth, to the Class I-B-2 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance
of Class I-B-2 Certificates has been reduced to zero;
(vi) sixth, to the Class I-B-3 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for
such Class for such Distribution Date;
(vii) seventh, to the Class I-B-3 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance
of Class I-B-3 Certificates has been reduced to zero;
(viii) eighth, to the Class I-B-4 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(ix) ninth, to the Class I-B-4 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance
of Class I-B-4 Certificates has been reduced to zero;
(x) tenth, to the Class I-B-5 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for
such Class for such Distribution Date;
(xi) eleventh, to the Class I-B-5 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance
of Class I-B-5 Certificates has been reduced to zero;
(xii) twelfth, to the Class I-B-6 Certificates, an amount
allocable to interest equal to the Interest Distribution
Amount for such Class for such Distribution Date;
(xiii) thirteenth, to the Class I-B-6 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance
of Class I-B-6 Certificates has been reduced to zero;
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(xiv) fourteenth, to the Class I-B-1 Certificates, as
reimbursement for any Realized Losses previously allocated
in reduction of their Class Principal Balances; provided,
however, that any distribution pursuant to this clause (v)
shall not result in a further reduction of the Class
Principal Balance of such Class of Certificate;
(xv) fifteenth, to the Class I-B-2 Certificates, as
reimbursement for any Realized Losses previously allocated
in reduction of their Class Principal Balances; provided,
however, that any distribution pursuant to this clause (vi)
shall not result in a further reduction of the Class
Principal Balance of such Class of Certificate;
(xvi) sixteenth, to the Class I-B-3 Certificates, as
reimbursement for any Realized Losses previously allocated
in reduction of their Class Principal Balances; provided,
however, that any distribution pursuant to this clause (v)
shall not result in a further reduction of the Class
Principal Balance of such Class of Certificate;
(xvii) seventeenth, to the Class I-B-4 Certificates, as
reimbursement for any Realized Losses previously allocated
in reduction of their Class Principal Balances; provided,
however, that any distribution pursuant to this clause (vi)
shall not result in a further reduction of the Class
Principal Balance of such Class of Certificate;
(xviii) eighteenth, to the Class I-B-5 Certificates, as
reimbursement for any Realized Losses previously allocated
in reduction of their Class Principal Balances; provided,
however, that any distribution pursuant to this clause (v)
shall not result in a further reduction of the Class
Principal Balance of such Class of Certificate;
(xix) nineteenth, to the Class I-B-6 Certificates, as
reimbursement for any Realized Losses previously allocated
in reduction of their Class Principal Balances; provided,
however, that any distribution pursuant to this clause (vi)
shall not result in a further reduction of the Class
Principal Balance of such Class of Certificate;
(xx) twentieth, to the Class AR Certificates, any remaining
Available Distribution Amount for Loan Group I and Loan
Group II.
(B) On each Distribution Date, the amount referred to in clause (i) of
the definition of Interest Distribution Amount for such Distribution
Date for each Class of Group I Certificates and Group II Certificates
shall be reduced by the Trustee by, (i) the related Class' pro rata
share (based on the applicable Interest Distribution Amount for each
such Class before reduction pursuant to this Section 4.01(B)(i)) of
Net Prepayment Interest Shortfalls for Mortgage Loans in Loan Group I
and Loan Group II; and (ii) the Class' Pro Rata Allocation of (A)
after the Special Hazard Coverage Termination Date, with respect to
each Mortgage Loan in such Loan Groups that became a Special Hazard
Mortgage Loan
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during the related Prepayment Period, the excess of one month's
interest at the related Net Mortgage Rate on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in such month over
the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such month, (B) after the Bankruptcy
Coverage Termination Date, with respect to each Mortgage Loan in such
Loan Groups that became subject to a Bankruptcy Loss during the
related Prepayment Period, the interest portion of the related Debt
Service Reduction or Deficient Valuation, (C) each Relief Act
Reduction for any Mortgage Loan in such Loan Groups incurred during
the related Prepayment Period and (D) after the Fraud Loss Coverage
Termination Date, with respect to each Mortgage Loan in such Loan
Groups that became a Fraud Loan during the related Prepayment Period
the excess of one month's interest at the related Net Mortgage Rate
on the Stated Principal Balance of such Mortgage Loan as of the Due
Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month.
(C) With respect to each Class of Subordinate Certificates, if on any
Distribution Date the related Subordination Level of such Class is
less than such percentage as of the Closing Date, no distribution of
Principal Prepayments in Full and Principal Prepayments in Part will
be made by the Trustee to any Class or Classes of Subordinate
Certificates junior to such Class (the "Restricted Classes") and the
amount otherwise distributable to the Restricted Classes in respect
of such Principal Prepayments in Full and Principal Prepayments in
Part will be allocated among the remaining Classes of Subordinate
Certificates, pro rata, based upon their respective Class Principal
Balances.
Section 4.02 Allocation of Losses.
(a) With respect to any Distribution Date, Realized Losses (other
than the Class I-P Fraction of the Realized Loss, if applicable), on the
Mortgage Loans in each of Loan Group I and Loan Group II, shall be determined
by the Trustee and allocated by the Trustee to the Classes of Certificates as
follows:
(i) any Realized Loss shall be allocated first, to the Group I-B
Certificates in decreasing order of their numerical Class designations
(beginning with the Class I-B-6 Certificates), until the respective Class
Principal Balance of each such Class is reduced to zero, and second, to
the Senior Certificates (other than the Class I-A-2, Class I-X and Class
I-P Certificates), pro rata, on the basis of their respective Class
Principal Balances; and
(ii) on each Distribution Date, Excess Losses and Extraordinary
Losses (other than the Class I-P Fraction of the Realized Loss, if
applicable) for Mortgage Loans in each of Loan Group I and Loan Group II
will be allocated pro rata among all Classes of Senior Certificates
(other than the Class I-A-2, Class I-X and Class I-P Certificates) and
the Group I-B Certificates, based on their respective Class Principal
Balances.
(b) On each Distribution Date, if the aggregate Class Principal
Balance of all Classes of Group I Certificates exceeds the aggregate Stated
Principal Balance of the Mortgage
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Loans in Loan Group I, (after giving effect to distributions of principal
and the allocation of all losses to such Certificates on such Distribution
Date), such excess will be deemed by the Trustee to be a principal loss
and will be allocated by the Trustee to the most junior Class of Subordinate
Certificates then outstanding.
(c) On each Distribution Date, if the aggregate Class Principal
Balance of the Group II Certificates exceeds the aggregate Stated Principal
Balance of the Mortgage Loans in Loan Group II, (after giving effect to
distributions of principal and the allocation of all losses to such
Certificates on such Distribution Date), such excess will be deemed by the
Trustee to be a principal loss and will be allocated by the Trustee to the
most junior Class of Subordinate Certificates then outstanding.
(d) On each Distribution Date, the applicable Class I-P Fraction of
any Realized Loss, including any Excess Loss or Extraordinary Loss, on a Class
I-P Mortgage Loan will be allocated to the Class I-P Certificates until the
Class Principal Balance of that Class is reduced to zero. To the extent funds
are available on that Distribution Date or on any future Distribution Date
from amounts that would otherwise be allocable to the Subordinate Principal
Distribution Amount for the Group I-B Certificates, Class I-P Deferred Amounts
will be paid on the Class I-P Certificates prior to distributions on the Group
I-B Certificates, but not in respect of Excess Losses or Extraordinary Losses.
The Class Principal Balance of the Class of Group I-B Certificates then
outstanding with the highest numerical class designation will be reduced by
the amount of any payments in respect of Class I-P Deferred Amounts. After the
Credit Support Depletion Date, no new Class I-P Deferred Amounts will be
created for the Class I-P Certificates.
(e) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant
to Section 4.02(b) shall be allocated by the Trustee among the Certificates of
such Class in proportion to their respective Certificate Balances.
(f) Any allocation by the Trustee of Realized Losses to a Certificate
or any reduction in the Certificate Balance of a Certificate pursuant to
Section 4.02(b) shall be accomplished by reducing the Certificate Balance
thereof, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance."
Section 4.03 Reserved.
Section 4.04 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and cause to be made available to each Certificateholder, each Servicer, the
Depositor, and each Rating Agency, a statement setting forth with respect to
the related distribution:
(i) the amount thereof allocable to principal, indicating the
portion thereof attributable to Scheduled Payments and Principal
Prepayments;
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(ii) the amount thereof allocable to interest, indicating the
portion thereof attributable to any Class Unpaid Interest Amounts
included in such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest;
(iv) the Class Principal Balance of each Class of Certificates after
giving effect to the distribution of principal on such Distribution Date;
(v) the Aggregate Loan Balance and Aggregate Loan Group Balance for
each Loan Group, in each case, for the following Distribution Date;
(vi) the amount of the Servicing Fees and TGIC Fees, if applicable,
with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(ix) the number and aggregate principal amounts of Mortgage Loans in
foreclosure or delinquent (with a notation indicating which Mortgage
Loans, if any, are in foreclosure) (1) 31 to 60 days, (2) 61 to 90 days
and (4) 91 or more days, as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans
with respect to which Prepayment Penalties were collected and the
aggregate amount of such Prepayment Penalties;
(xi) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xii) the aggregate amount of Realized Losses incurred during the
preceding calendar month and aggregate Realized Losses through such
Distribution Date;
(xiii) the weighted average term to maturity of the Mortgage Loans
as of the close of business on the last day of the calendar month
preceding such Distribution Date; and
(xiv) the number and principal amount of claims submitted and claims
paid under the TGIC Policy during the preceding calendar month and the
number and principal amount of claims submitted and claims paid under the
TGIC Policy through such Distribution Date.
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The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness and accuracy
of the information derived from each Servicer which shall be provided as
required in Section 4.05.
On each Distribution Date, the Trustee shall provide Bloomberg
Financial Markets, L.P. ("Bloomberg") CUSIP Level Factors for each Class of
Offered Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Trustee and Bloomberg. In connection with providing
the information specified in this Section 4.04 to Bloomberg, the Trustee and
any director, officer, employee or agent of the Trustee shall be indemnified
and held harmless by DLJMC, to the extent, in the manner and subject to the
limitations provided in Section 9.05. The Trustee will also make the monthly
statements to Certificateholders available each month to each party referred
to in Section 4.04(a) via the Trustee's website. The Trustee's website can be
accessed at xxxx://xxx.xxx.xxxxxxx.xxx/xxxxxx or at such other site as the
Trustee may designate from time to time. Persons that are unable to use the
above website are entitled to have a paper copy mailed to them via first class
mail by written notice to the Trustee addressed to the Corporate Trust Office.
The Trustee shall have the right to change the way the reports referred to in
this Section are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and to the
Certificateholders. The Trustee shall provide timely and adequate notification
to all above parties and to the Certificateholders regarding any such change.
The Trustee may fully rely upon and shall have no liability with respect to
information provided by any Servicer.
(b) Upon request, within a reasonable period of time after the end of
each calendar year, the Trustee shall cause to be furnished to each Person who
at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and (a)(vi) of
this Section 4.04 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code as from time to time in effect.
Section 4.05 Servicer to Cooperate.
Each Servicer shall provide to the Trustee the information set forth
in Exhibit H in such form as the Trustee shall reasonably request (or as may
be mutually agreed between a Servicer and the Trustee) with respect to each
Mortgage Loan serviced by such Servicer no later than the 18th calendar day of
the month in which such Distribution Date occurs, or if such 18th day is not a
Business Day, the Business Day immediately preceding such 18th calendar day.
Notwithstanding the foregoing, nothing in this Section 4.05 shall require any
Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business.
Section 4.06 Cross-Collateralization; Adjustments to Available Funds
(a) On each Distribution Date prior to the Credit Support Depletion
Date, but after the date on which the aggregate Class Principal Balance of any
of the Group I or Group II
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Senior Certificates has been reduced to zero, the Trustee shall distribute
the principal portion of Available Distribution Amount on the Mortgage
Loans relating to such Senior Certificates that will have been paid
in full, to the holders of the Senior Certificates of the other Certificate
Group, pro rata, based on Class Principal Balances, provided, however, that
the Trustee shall not make such distribution on such Distribution Date if (a)
the Aggregate Subordinate Percentage for such Distribution Date is greater
than or equal to 200% of such Aggregate Subordinate Percentage as of the
Closing Date and (b) the average outstanding principal balance of the Mortgage
Loans delinquent 60 days or more over the last six months, as a percentage of
the Aggregate Class Principal Balance of the Class I-B Certificates, is less
than 100%.
(b) If on any Distribution Date the aggregate Class Principal Balance
of any of the Group I or Group II Certificates is greater than the aggregate
Stated Principal Balance of the Mortgage Loans in the related Loan Group (the
"Undercollateralized Group"), then the Trustee shall reduce the Available
Distribution Amount of the other Loan Group that is not undercollateralized
(the "Overcollateralized Group"), as follows:
(1) to add to the Available Distribution Amount of the
Undercollateralized Group an amount equal to the lesser
of (a) one month's interest on the Principal Transfer
Amount of the Undercollateralized Group at the
Pass-Through Rate applicable to the Undercollateralized
Group and (b) the Available Distribution Amount of the
Overcollateralized Group remaining after making
distributions of interest to the Certificates of the
Overcollateralized Group on such Distribution Date
pursuant to Section 4.01; and
(2) to the Senior Certificates of each Undercollateralized
Group, to the extent of the principal portion of
Available Distribution Amount of the Overcollateralized
Group remaining after making distributions to the Senior
Certificates of the Overcollateralized Group on such
Distribution Date pursuant to Section 4.01, until the
Class Principal Balance of the Senior Certificates of
such Undercollateralized Group equals the aggregate
Stated Principal Balance of the Mortgage Loans in the
related Loan Group, any shortfall of such Available
Distribution Amount to be allocated to such
Undercollateralized Group.
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ARTICLE V
ADVANCES BY A SERVICER
Section 5.01 Advances by a Servicer.
Each Servicer, upon receipt of notice from the Trustee, shall deposit
in the Collection Account an amount equal to all Scheduled Payments (with
interest at the Mortgage Rate less the Servicing Fee Rate) which were due on
the related Mortgage Loans during the applicable Collection Period and which
were delinquent at the close of business on the immediately preceding
Determination Date; provided, however, that with respect to any Balloon Loan
that is delinquent on its maturity date, the related Servicer, other than
WMMSC, will not be required to advance the related balloon payment but will be
required to continue to make advances in accordance with this Section 5.01
with respect to such Balloon Loan in an amount equal to the assumed monthly
payments that would have been due on such Balloon Loan based upon the original
amortization schedule for the Balloon Loan less the applicable Servicing Fee
Rate, to the extent the related Servicer deems such amount to be recoverable.
With respect to any Balloon Loan that is serviced by WMMSC that is delinquent
on its maturity date, WMMSC will not be required to advance the related
balloon payment but will be required to continue to make advances in
accordance with this Section 5.01 with respect to such Balloon Loan in an
amount equal to one month's interest on the outstanding principal balance at
the applicable Mortgage Rate less the applicable Servicing Fee Rate, to the
extent WMMSC deems such amount to be recoverable. Subject to this Section
5.01, each Servicer's obligation to make such Advances as to any related
Mortgage Loan will continue through the last Scheduled Payment due prior to
the payment in full of such Mortgage Loan, or through the date that the
related Mortgaged Property has, in the judgment of such Servicer, been
completely liquidated.
Each Servicer shall be obligated to make Advances in accordance with
the provisions of this Agreement; provided, however, that such obligation with
respect to any related Mortgage Loan shall cease if a Servicer determines, in
its reasonable opinion, that Advances with respect to such Mortgage Loan are
Nonrecoverable Advances. In the event that such Servicer determines that any
such advances are Nonrecoverable Advances, such Servicer shall provide the
Trustee with a certificate signed by a Servicing Officer evidencing such
determination.
If an Advance is required to be made hereunder, the related Servicer
shall no later than the Servicer Remittance Date immediately preceding the
Distribution Date immediately following the related Determination Date either
(i) deposit in the Collection Account from its own funds an amount equal to
such Advance, (ii) cause to be made an appropriate entry in the records of the
Collection Account that funds in such account being held for future
distribution or withdrawal have been, as permitted by this Section 5.01, used
by such Servicer to make such Advance or (iii) make Advances in the form of
any combination of clauses (i) and (ii) aggregating the amount of such
Advance. Any such funds being held in a Collection Account for future
distribution and so used shall be replaced by such Servicer from its own funds
by deposit in such Collection Account on or before any future Distribution
Date in which such funds would be due.
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ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.
The Certificates shall be in substantially the forms set forth in
Exhibits A, B and C hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Book-Entry Certificates, other than the Class X Certificates,
will be issued in minimum denominations representing an original principal
amount of $25,000 and multiples of $1 in excess of that amount. The Class X
Certificates will be issued in minimum denominations representing an original
notional amount of not less than $100,000 and multiples of $1 in excess of
that amount. The Class AR and Class PP Certificates will be issued in minimum
denominations of a 20% percentage interest, except in the case of one Class AR
Certificate, as otherwise described in the Prospectus Supplement. The Junior
Subordinate Certificates will be issued in certificated, fully-registered form
in minimum denominations of $25,000 and increments of $1 in excess of that
amount.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by a Responsible Officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication executed by the Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
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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 set
forth in Section 6.06. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing.
(c) No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
(d) All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(e) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. Except in connection with any transfer of a
Private Certificate by the Depositor to any affiliate, in the event that a
transfer is to be made in reliance upon an exemption from the 1933 Act and
such laws, in order to assure compliance with the 1933 Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit L (the "Transferor Certificate") and (i) deliver a letter in
substantially the form of either Exhibit M-1 (the "Investment Letter") or
Exhibit M-2 (the "Rule 144A Letter") or (ii) there shall be delivered to the
Trustee at the expense of the transferor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the 1933 Act. The Depositor
shall provide to any Holder of a Private Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Certificate without registration thereof under the
1933 Act pursuant to the registration exemption provided by Rule 144A. The
Trustee shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
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Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund in the Trustee's possession and as the
Depositor shall reasonably request to meet its obligation under the preceding
sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Sellers, each Servicer and the Special Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(f) No transfer of an ERISA-Restricted Certificate shall be made to
any employee benefit or other plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Code, to a trustee or other person acting on behalf of any such plan, or to
any other person using "plan assets" to effect such acquisition, unless the
prospective transferee of a Certificate provides the Trustee with (i) in the
case of an ERISA-Restricted Certificate that has been the subject of an
ERISA-Qualifying Underwriting, a certification as set forth in item (d) of
Exhibit M-1 or M-2 or item 15 of Exhibit N and in the case of any other
ERISA-Restricted Certificate, a certification as set forth in item d(i) of
Exhibit M-1 or M-2 or item 15 of Exhibit N; or (ii) an Opinion of Counsel
which establishes to the reasonable satisfaction of the Depositor and the
Trustee that the purchase and holding of an ERISA-Restricted Certificate by,
on behalf of or with "plan assets" of such plan is permissible under
applicable local law, would not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and would not subject the Depositor, the Trustee or the Servicer to any
obligation or liability (including liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in this Agreement or any other
liability. The Trustee shall require that, where applicable, such prospective
transferee certify to the Trustee in writing the facts establishing that such
transferee is not such a plan and is not acting on behalf of or using "plan
assets" of any such plan to effect such acquisition.
(g) Additional restrictions on transfers of the Class AR Certificates
to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership interest in a
Class AR Certificate shall be deemed by the acceptance or acquisition of
such ownership interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee or its designee
under clause (iii)(A) below to deliver payments to a Person other than
such Person and to negotiate the terms of any mandatory sale under clause
(iii)(B) below and to execute all instruments of transfer and to do all
other things necessary in connection with any such sale. The rights of
each Person acquiring any ownership interest in a Class AR Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any ownership interest in
a Class AR Certificate shall be other than a Disqualified
Organization and shall promptly notify the Trustee of any change or
impending change in its status as other than a Disqualified
Organization.
(B) In connection with any proposed transfer of any ownership
interest in a Class AR Certificate to a U.S. Person, the Trustee
shall require delivery to it, and shall not register the transfer of
a Class AR Certificate until its
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receipt of (1) an affidavit and agreement (a "Transferee
Affidavit and Agreement" attached hereto as Exhibit N) from the
proposed transferee, in form and substance satisfactory to the
Trustee, representing and warranting, among other things, that it is
not a non-U.S. Person, that such transferee is other than a
Disqualified Organization, that it is not acquiring its ownership
interest in a Class AR Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person who
is a Disqualified Organization, that for so long as it retains its
ownership interest in a Class AR Certificate, it will endeavor to
remain other than a Disqualified Organization, and that it has
reviewed the provisions of this Section 6.02(g) and agrees to be
bound by them, and (2) a certificate, attached hereto as Exhibit O,
from the Holder wishing to transfer a Class AR Certificate, in form
and substance satisfactory to the Trustee, representing and
warranting, among other things, that no purpose of the proposed
transfer is to allow such Holder to impede the assessment or
collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit and
Agreement by a proposed transferee under clause (B) above, if the
Trustee has actual knowledge that the proposed transferee is a
Disqualified Organization, no transfer of an ownership interest in a
Class AR Certificate to such proposed transferee shall be effected.
(D) Each Person holding or acquiring any ownership interest in
a Class AR Certificate agrees, by holding or acquiring such
ownership interest, to require a Transferee Affidavit and Agreement
from the other Person to whom such Person attempts to transfer its
ownership interest and to provide a certificate to the Trustee in
the form attached hereto as Exhibit O.
(ii) The Trustee shall register the transfer of any Class AR
Certificate only if it shall have received the Transferee Affidavit and
Agreement, a certificate of the Holder requesting such transfer in the
form attached hereto as Exhibit O and all of such other documents as
shall have been reasonably required by the Trustee as a condition to such
registration.
(iii) (A) If any Disqualified Organization shall become a Holder of
a Class AR Certificate, then the last preceding Holder that was not a
Disqualified Organization shall be restored, to the extent permitted by
law, to all rights and obligations as Holder thereof retroactive to the
date of registration of such transfer of such Class AR Certificate. If
any non-U.S. Person shall become a Holder of a Class AR Certificate, then
the last preceding Holder that is a U.S. Person shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of the transfer to such non-U.S.
Person of such Class AR Certificate. If a transfer of a Class AR
Certificate is disregarded pursuant to the provisions of Treasury
Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding
Holder that was not a Disqualified Organization shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such Class AR
Certificate. The Trustee shall be under no liability to any Person for
any registration of transfer of a Class AR Certificate that is in fact
not
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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.
(A) If any purported transferee of a Class AR Certificate shall
become a Holder of a Class AR Certificate in violation of the
restrictions in this Section 6.02(g) and to the extent that the
retroactive restoration of the rights of the Holder of such Class AR
Certificate as described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Depositor shall have the right,
without notice to the Holder or any prior Holder of such Class AR
Certificate, to sell such Class AR Certificate to a purchaser
selected by the Depositor on such terms as the Depositor may choose.
Such purported transferee shall promptly endorse and deliver a Class
AR Certificate in accordance with the instructions of the Depositor.
Such purchaser may be the Depositor itself or any affiliate of the
Depositor. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Depositor or its affiliates),
expenses and taxes due, if any, shall be remitted by the Depositor
to such purported transferee. The terms and conditions of any sale
under this clause (iii)(B) shall be determined in the sole
discretion of the Depositor, and the Depositor shall not be liable
to any Person having an ownership interest or a purported ownership
interest in a Class AR Certificate as a result of its exercise of
such discretion.
(iv) Each Servicer, on behalf of the Trustee, shall make available,
upon written request from the Trustee, all information reasonably
available to it that is necessary to compute any tax imposed (A) as a
result of the transfer of an ownership interest in a Class AR Certificate
to any Person who is not other than a Disqualified Organization,
including the information regarding "excess inclusions" of such Residual
Certificate required to be provided to the Internal Revenue Service and
certain Persons as described in Treasury Regulation Section
1.860D-1(b)(5), and (B) as a result of any regulated investment company,
real estate investment trust, common trust fund, partnership, trust,
estate or organizations described in Section 1381 of the Code having as
among its record holders at any time any Person who is not other than a
Disqualified Organization. Reasonable compensation for providing such
information may be required by the Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior to this
Section (v) may be modified, added to or eliminated by the Depositor,
provided that there shall have been delivered to the Trustee the
following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current
rating of the Certificates; and
(B) a certificate of the Depositor stating that the Depositor
has received an Opinion of Counsel, in form and substance
satisfactory to the Depositor, to the effect that such modification,
addition to or elimination of such provisions will not cause the
Trust Fund to cease to qualify as a REMIC and will
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not create a risk that (i) the Trust Fund may be subject to an
entity-level tax caused by the transfer of a Class AR Certificate to
a Person which is a Disqualified Organization or (2) a
Certificateholder or another Person will be subject to a
REMIC-related tax caused by the transfer of applicable Class AR
Certificate to a Person which is a Disqualified Organization.
(vi) The following legend shall appear on each Class AR Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A
TRANSFER AFFIDAVIT TO THE TRUSTEE THAT (1) SUCH TRANSFEREE IS
NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE
DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM
THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF
THE CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED
TO AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN
REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS AR CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THE CLASS AR CERTIFICATE BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
(h) The Trustee shall have no liability to the Trust Fund arising
from a transfer of any such Certificate in reliance upon a certification,
ruling or Opinion of Counsel described in this Section 6.02; provided,
however, that the Trustee shall not register the transfer of any Class AR
Certificate if it has actual knowledge that the proposed transferee does not
meet the qualifications of a permitted Holder of a Class AR Certificate as set
forth in this Section 6.02.
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Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to each Servicer and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and interest in the Trust Fund. In connection with the issuance of any
new Certificate under this Section 6.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 6.03 shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, each Servicer, the Trustee, and any agent of any Servicer or the
Trustee may treat the person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and none of
the Servicers, the Trustee, nor any agent of a Servicer or the Trustee shall
be affected by any notice to the contrary.
Section 6.05 Access to List of Certificateholders' Names and
Addresses.
(a) If three or more Certificateholders (i) request in writing from
the Trustee a list of the names and addresses of Certificateholders, (ii)
state that such Certificateholders desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and (iii) provide a copy of the communication which such
Certificateholders propose to transmit, then the Trustee shall, within ten
Business Days after the receipt of such request, afford such
Certificateholders access during normal business hours to a current list of
the Certificateholders. The expense of providing any such information
requested by a Certificateholder shall be borne by the Certificateholders
requesting such information and shall not be borne by the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
(b) Each Servicer, so long as it is a servicer hereunder, the Sellers
and the Depositor shall have unlimited access to a list of the names and
addresses of the Certificateholders which list shall be provided by the
Trustee promptly upon request.
Section 6.06 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates
may be surrendered for
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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 Corporate Trust Office as its office for
such purpose. The Trustee will give prompt written notice to the
Certificateholders of any change in the location of any such office or agency.
Section 6.07 Book-Entry Certificates.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder will receive a definitive
certificate representing such Beneficial Holder's interest in the
Certificates, except as provided in Section 6.09. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Beneficial Holders pursuant to Section 6.09:
(a) the provisions of this Section 6.07 shall be in full force and
effect with respect to the Book-Entry Certificates;
(b) the Depositor and the Trustee may deal with the Clearing Agency
for all purposes with respect to the Book-Entry Certificates (including the
making of distributions on such Certificates) as the sole Holder of such
Certificates;
(c) to the extent that the provisions of this Section 6.07 conflict
with any other provisions of this Agreement, the provisions of this Section
6.07 shall control; and
(d) the rights of the Beneficial Holders of the Book-Entry
Certificates shall be exercised only through the Clearing Agency and the
Participants and shall be limited to those established by law and agreements
between such Beneficial Holders and the Clearing Agency and/or the
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.09, the initial
Clearing Agency will make book-entry transfers among the Participants and
receive and transmit distributions of principal and interest on the related
Book-Entry Certificates to such Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Book-Entry Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of such Certificates, such direction or consent may be
given by the Clearing Agency at the direction of Beneficial Holders owning
such Certificates evidencing the requisite percentage of principal amount of
such Certificates. The Clearing Agency may take conflicting actions with
respect to the Book-Entry Certificates to the extent that such actions are
taken on behalf of the Beneficial Holders.
Section 6.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of Book-Entry
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to the related Certificateholders pursuant
to Section 6.09, the Trustee shall give all
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such notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices
and communications to the related Participants in accordance with its
applicable rules, regulations and procedures.
Section 6.09 Definitive Certificates.
If (a) the Depositor advises the Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
under the Depository Agreement with respect to the Certificates and the
Depositor is unable to locate a qualified successor, (b) the Depositor, at its
option, advises the Trustee in writing that it elects to terminate the
book-entry system with respect to the Book-Entry Certificates through the
Clearing Agency or (c) after the occurrence of an Event of Default, Holders of
Book-Entry Certificates evidencing not less than 66K% of the aggregate
Class Principal Balance of the Book-Entry Certificates advise the Trustee in
writing that the continuation of a book-entry system with respect to the such
Certificates through the Clearing Agency is no longer in the best interests of
the Holders of such Certificates with respect to the Book-Entry Certificates,
the Trustee shall notify all Holders of such Certificates of the occurrence of
any such event and the availability of Definitive Certificates. Upon surrender
to the Trustee of such Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the
Trustee shall authenticate and deliver the Definitive Certificates. Neither
the Depositor nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates
all references herein to obligations imposed upon or to be performed by the
Clearing Agency shall be deemed to be imposed upon and performed by the
Trustee, to the extent applicable with respect to such Definitive
Certificates, and the Trustee shall recognize the Holders of Definitive
Certificates as Certificateholders hereunder.
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ARTICLE VII
THE DEPOSITOR, THE SELLERS, THE SERVICERS AND THE SPECIAL SERVICER
Section 7.01 Liabilities of the Sellers, the Depositor , the
Servicers and the Special Servicer.
The Depositor, the Special Servicer, the Sellers and any Servicer
shall each be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by them
herein.
Section 7.02 Merger or Consolidation of the Depositor, the Sellers,
the Servicers or the Special Servicer.
Subject to the immediately succeeding paragraph, the Depositor, the
Special Servicer, the Sellers and any Servicer will each do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights and franchises (charter and statutory) and will each obtain
and preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of this Agreement, or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor, the Special Servicer, any Seller
or any Servicer may be merged or consolidated, or any Person resulting from
any merger or consolidation to which the Depositor, the Special Servicer, any
Seller or any Servicer shall be a party, or any Person succeeding to the
business of the Depositor, the Special Servicer, any Seller or any Servicer,
shall be the successor of the Depositor, the Special Servicer, the related
Seller or such Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that the successor or surviving Person to any such Servicer shall be qualified
to sell mortgage loans to, and to service mortgage loans on behalf of, FNMA or
FHLMC.
Notwithstanding anything else in this Section 7.02 or in Section 7.04
hereof to the contrary, a Servicer may assign its rights and delegate its
duties and obligations under this Agreement; provided, however, that such
Servicer gives the Depositor and the Trustee notice of such assignment; and
provided further, that such purchaser or transferee accepting such assignment
and delegation shall be an institution that is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least
$15,000,000, and which is willing to service the Mortgage Loans and executes
and delivers to the Depositor and the Trustee an agreement accepting such
delegation and assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of such
Servicer, with like effect as if originally named as a party to this
Agreement; and provided further, that each of the Rating Agencies acknowledge
that its rating of the Certificates in effect immediately prior to such
assignment will not be qualified or reduced as a result of such assignment and
delegation. In the case of any such assignment and delegation, such Servicer
shall be released from its obligations under this Agreement (except as
provided above), except that the Servicer
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shall remain liable for all liabilities and obligations incurred by it as
Servicer hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the preceding sentence.
Section 7.03 Limitation on Liability of the Depositor, the Sellers,
the Servicers, the Special Servicer and Others.
Neither the Depositor, the Special Servicer, any Servicer, any Seller
nor any of the directors, officers, employees or agents of the Depositor, the
Special Servicer, any Servicer or any Seller shall be under any liability to
the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Special Servicer, any Servicer or any Seller against any breach
of representations or warranties made by it herein or protect the Depositor,
the Special Servicer, any Servicer or any Seller or any such director,
officer, employee or agent from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor, the Special Servicer, any Servicer, any
Seller and any director, officer, employee or agent of the Depositor, the
Special Servicer, any Servicer or any Seller may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Special Servicer,
the Servicers, the Sellers and any director, officer, employee or agent of the
Depositor, the Special Servicer, any Servicer or any Seller shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this
Agreement or the Certificates, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. None of the Depositor, the Special Servicer,
any Servicer or any Seller shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to their
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Depositor, the Special
Servicer, any Servicer or any Seller may in its discretion undertake any such
action that it may deem necessary or desirable in respect of this Agreement
and the rights and duties of the parties hereto and interests of the Trustee
and the Certificateholders hereunder.
Section 7.04 Servicer and Special Servicer Not to Resign; Transfer of
Servicing.
(a) A Servicer or Special Servicer shall not resign from the
obligations and duties hereby imposed on it except (i) upon appointment of a
successor servicer or special servicer and receipt by the Trustee of a letter
from each Rating Agency that such a resignation and appointment will not
result in a downgrading of the rating of any of the Certificates related to
the applicable Mortgage Loans, or (ii) upon determination that its duties
hereunder are no longer permissible under applicable law. Any such
determination under clause (ii) permitting the resignation of a Servicer or
Special Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee. No such resignation shall become effective until the
successor servicer shall have assumed such Servicer's or Special Servicer's
responsibilities, duties, liabilities and obligations hereunder in accordance
with Section 8.02 hereof.
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(b) Notwithstanding the foregoing, DLJ Mortgage Capital, Inc. or its
transferee shall be entitled to request that a Servicer, other than WMMSC, or
the Special Servicer, resign and appoint a successor servicer or special
servicer; provided that such entity delivers to the Trustee the letter
required in Section 7.04(a)(i) above.
Section 7.05 Sellers, Servicers and Special Servicer May Own
Certificates.
Each of the Sellers, Servicers and Special Servicer in its individual
or any other capacity may become the owner or pledgee of Certificates with the
same rights as it would have if it were not a Seller, Servicer or Special
Servicer.
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ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.
"Event of Default", wherever used herein, and as to each Servicer,
means any one of the following events (whatever reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) any failure by the Servicer to remit to the Certificate Account
or to the Trustee any payment other than an Advance required to be made by the
Servicer under the terms of this Agreement, which failure shall continue
unremedied for a period of one Business Day after the date upon which written
notice of such failure shall have been given to the Servicer by the Trustee or
the Depositor or to the Servicer and the Trustee by the Holders of
Certificates having not less than 25% of the Voting Rights evidenced by the
Certificates; or
(b) any failure by the Servicer to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement (except as set forth in (c) and (g) below) which
failure (i) materially affects the rights of the Certificateholders and (ii)
shall continue unremedied for a period of 60 days after the date on which
written notice of such failure shall have been given to the Servicer by the
Trustee or the Depositor, or to the Servicer and the Trustee by the Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates; or
(c) if a representation or warranty set forth in Section 2.03 hereof
made solely in its capacity as a Servicer shall prove to be materially
incorrect as of the time made in any respect that materially and adversely
affects interests of the Certificateholders, and the circumstances or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 90 days after the date on which
written notice thereof shall have been given to the related Servicer and
related Seller by the Trustee for the benefit of the Certificateholders or by
the Depositor; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for
a period of 60 days; or
(e) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to the Servicer
or all or substantially all of the property of the Servicer; or
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(f) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(g) any failure of the Servicer to make any Advance in the manner and
at the time required to be made from its own funds pursuant to this Agreement
and after receipt of notice from the Trustee pursuant to Section 5.01, which
failure continues unremedied after 5 p.m., New York City time, on the Business
Day immediately following the Servicer's receipt of such notice.
If an Event of Default due to the actions or inaction of a Servicer
described in clauses (a) through (f) of this Section shall occur, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Trustee shall at the direction of the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates, by notice in writing to such Servicer (with a copy to the Rating
Agencies), terminate all of the rights and obligations of such Servicer under
this Agreement (other than rights to reimbursement for Advances and Servicing
Advances previously made, as provided in Section 3.08).
If an Event of Default described in clause (g) shall occur, the
Trustee shall, prior to the next Distribution Date, terminate the rights and
obligations of the applicable Servicer hereunder and succeed to the rights and
obligations of such Servicer hereunder pursuant to Section 8.02, including the
obligation to make Advances on such succeeding Distribution Date pursuant to
the terms hereof. No Event of Default with respect to a Servicer shall affect
the rights or duties of any other Servicer, or constitute an Event of Default
as to any other Servicer.
Section 8.02 Trustee to Act; Appointment of Successor.
On and after the time a Servicer receives a notice of termination
pursuant to Section 8.01 hereof or resigns pursuant to Section 7.04 hereof,
subject to the provisions of Section 3.04 hereof, the Trustee shall be the
successor in all respects to such Servicer in its capacity as servicer under
this Agreement and with respect to the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on such Servicer by the terms and
provisions hereof. As compensation therefor, the Trustee shall be entitled to
all funds relating to the Mortgage Loans that the related Servicer would have
been entitled to charge to the related Collection Account if such Servicer had
continued to act hereunder (except that the terminated or resigning Servicer
shall retain the right to be reimbursed for advances (including, without
limitation, Advances and Servicing Advances) theretofore made by the Servicer
with respect to which it would be entitled to be reimbursed as provided in
Section 3.08 if it had not been so terminated or resigned as Servicer).
Notwithstanding the foregoing, if the Trustee has become the successor to a
Servicer in accordance with this Section 8.02, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act (exclusive of the
obligations with respect to 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 a Servicer hereunder
in the assumption of all or any part of the responsibilities,
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duties or liabilities of such Servicer. Pending appointment of a successor to
a 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 related Servicer hereunder. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither
the Trustee nor any other successor servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by the failure of the
applicable Servicer to deliver, or any delay in delivering, cash, documents or
records to it.
A Servicer that has been terminated shall, at the request of the
Trustee but at the expense of such Servicer, deliver to the assuming party all
documents and records relating to each Sub-Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use commercially reasonable efforts to effect the orderly and
efficient transfer of each Sub-Servicing Agreement, but only to the extent of
the Mortgage Loans serviced thereunder, to the assuming party.
Each Servicer shall cooperate with the Trustee and any successor
servicer in effecting the termination of the terminated Servicer's
responsibilities and rights hereunder, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by such Servicer to the applicable Collection
Account or thereafter received with respect to the Mortgage Loans.
Neither the Trustee nor any other successor servicer shall be deemed
to be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (a) the
failure of any Servicer to (i) deliver, or any delay in delivering, cash,
documents or records to it, (ii) cooperate as required by this Agreement, or
(iii) deliver the applicable documents and records relating to Mortgage Loans
to the Trustee as required by this Agreement, or (b) restrictions imposed by
any regulatory authority having jurisdiction over the related Servicer.
Any successor to a Servicer as servicer shall during the term of its
service as servicer maintain in force the policy or policies that such
Servicer is required to maintain pursuant to Section 3.09(b) hereof.
Section 8.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to any
Servicer, the Trustee shall give prompt written notice thereof to each Seller,
and the Certificateholders at their respective addresses appearing in the
Certificate Register and to the Rating Agencies.
(b) Within two Business Days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to each Seller and all
Certificateholders, and the Rating Agencies notice of each such Event of
Default hereunder known to the Trustee, unless such Event of Default shall
have been cured or waived.
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Section 8.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (g) of Section 8.01 may be waived, only by all of the
Holders of Certificates affected by such default or Event of Default and (b)
no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 11.01(b)(i), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been cured and remedied for
every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon
except to the extent expressly so waived.
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ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. Any
permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee shall
have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee.
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 of all such Events of Default that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be 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 liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless the Trustee was negligent in ascertaining or investigating the
pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights allocated to each Class of Certificates relating to the time,
method and place of conducting any proceeding for any remedy
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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 a Servicer, the Depositor, or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Servicer
upon receipt of any such complaint, claim, demand, notice or other document
(i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of
which a Responsible Officer has actual knowledge, and (iii) which contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property.
Section 9.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01:
(i) the Trustee may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors, Servicing Officers or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee may consult with counsel, financial advisors or
accountants and any advice of such Persons or Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the
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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 liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default that may have
occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing 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
applicable Servicer in the event that such investigation relates to an
Event of Default by such Servicer, if an Event of Default by such
Servicer shall have occurred and is continuing, and otherwise by the
Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care;
(vii) the Trustee shall not be required to expend its own funds
or otherwise incur any financial liability in the performance of any of
its duties hereunder if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such liability
is not assured to it; and
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement except as provided in
Section 3.05(e).
(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.
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Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein shall be taken as the statements of the
Depositor or a Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Agreement, the Certificates or of any
Mortgage Loan or related document. The Trustee shall not be accountable for
the use or application by the Depositor, the Sellers or the Servicers of any
funds paid to the Depositor or any Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from a Collection Account, an Escrow Account or
the Certificate Account by the Depositor, the Sellers or the Servicers.
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 parties
hereto and their Affiliates with the same rights as it would have if it were
not the Trustee.
Section 9.05 Trustee's Fees and Expenses.
(a) The Trustee shall pay to itself on each Distribution Date from
amounts on deposit in the Certificate Account and prior to making
distributions pursuant to Section 4.01, any investment income or other benefit
derived from balances in the Certificate Account for such Distribution Date
pursuant to Section 3.08(b). The Trustee and any director, officer, employee
or agent of the Trustee shall be indemnified by the Depositor and held
harmless against any loss, liability or expense (including reasonable
attorney's fees and expenses) (i) incurred in connection with any claim or
legal action relating to (a) this Agreement, (b) the Certificates, (c) the
Custodial Agreement, (d) the Terms Agreement or (e) the performance of any of
the Trustee's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder or incurred by reason of
any action of the Trustee taken at the direction of the Certificateholders and
(ii) resulting from any error in any tax return prepared by a Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation
or removal of the Trustee hereunder. Without limiting the foregoing, the
Depositor covenants and agrees, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any such expense, disbursement
or advance as may arise from the Trustee's negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that
the Trustee must engage such persons to perform acts or services hereunder,
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates and (D) any other reasonable expenses incurred other
than in the ordinary course of its business by the Trustee in connection with
its duties hereunder. Except as otherwise provided herein, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee, Tax
Matters Person or Paying Agent hereunder or for any other expenses.
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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 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 Xxxxx'x
and S&P or such lower ratings as will not cause Xxxxx'x or S&P to lower their
then-current ratings of the Class A Certificates, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 9.07 hereof.
Section 9.07 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (a) giving written notice of resignation to the Depositor,
the Sellers and the Servicers and by mailing notice of resignation by first
class mail, postage prepaid, to the Certificateholders at their addresses
appearing on the Certificate Register, and to the Rating Agencies, not less
than 60 days before the date specified in such notice when, subject to Section
9.08, such resignation is to take effect, and (b) acceptance by a successor
trustee in accordance with Section 9.08 meeting the qualifications set forth
in Section 9.06.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation or if
the Trustee breaches any of its obligations or representations hereunder, then
the Depositor may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee and one copy to the successor trustee. The Trustee
may also be removed at any time by the Holders of Certificates evidencing not
less than 50% of the Voting Rights evidenced by the Certificates. Notice of
any removal of the Trustee and acceptance of appointment by the successor
trustee shall be given to the Rating Agencies by the Depositor.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for the
appointment of a successor trustee.
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Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.08 hereof.
Section 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, upon receipt of all amounts due it hereunder, and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 9.06 hereof and its
acceptance shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown
in the Certificate Register. If the Depositor fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
Section 9.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 9.06 hereof without the execution or filing of any paper
or further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
Section 9.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicers and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the applicable Certificateholders, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this
Section 9.10, such powers, duties, obligations, rights and trusts as the
Servicers and the Trustee may consider necessary or desirable. If the
Servicers shall not have joined in
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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 liable by reason of any act or
omission of any other trustee hereunder; and
(c) the Servicers and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Servicers and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. 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.
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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 Return.
Each Servicer, upon request, will furnish the Trustee in a timely
manner with all such information in the possession of such Servicer as may be
reasonably required in connection with the preparation by the Trustee of all
tax and information returns of the Trust Fund, and the Trustee shall sign such
returns. Each Servicer shall indemnify the Trustee for all reasonable costs,
including legal fees and expenses, related to errors in such tax returns due
to errors only in information provided by such Servicer.
Section 9.13 Periodic Filings.
The Trustee shall, on behalf of the Trust, cause to be filed with the
Securities and Exchange Commission any periodic reports required to be filed
under the provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Securities and Exchange Commission
thereunder. In connection with the preparation and filing of such periodic
reports, the Depositor and each Servicer shall timely provide to the Trustee
all material information requested by the Trustee and reasonably available to
them which is required to be included in such reports. The Trustee shall have
no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct.
Section 9.14 Determination of LIBOR.
On each LIBOR Determination Date, the Trustee shall determine LIBOR
for the Accrual Period and inform each Servicer of such rate.
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ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans.
The obligations and responsibilities of the Servicers, the Special
Servicer, the Sellers, the Depositor and the Trustee created hereby with
respect to the Trust Fund created hereby shall terminate upon the earlier of:
(a) the repurchase by Vesta at its election, of all Mortgage Loans
and all property acquired in respect of any Mortgage Loan remaining, which
repurchase right Vesta may exercise at its sole and exclusive election as of
any Distribution Date (such applicable Distribution Date being herein referred
to as the "Optional Termination Date") on or after the date on which the
aggregate Principal Balance of the Mortgage Loans at the time of the
repurchase is less than 5% of the aggregate Principal Balance of the Mortgage
Loans as of the Cut-off Date; and
(b) the later of (i) twelve months after the maturity of the last
Mortgage Loan remaining in the Trust Fund, (ii) the liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property and (iii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to this Agreement.
In no event shall the trust created hereby continue beyond the earlier of (1)
the expiration of 21 years from the death of the last survivor of the
descendants of Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the United States
to Great Britain, living on the date of execution of this Agreement or (ii)
the Distribution Date in December 2031.
The Mortgage Loan Purchase Price for any such Optional Termination
shall be equal to the sum of (i) 100% of the Stated Principal Balance of each
Mortgage Loan in the applicable Loan Groups (other than in respect of REO
Property) plus accrued and unpaid interest thereon from the date to which such
interest was paid or advanced at the sum of the applicable Mortgage Rate, to
but not including the Due Date in the month of the final Distribution Date (or
the Net Mortgage Rate with respect to any Mortgage Loan currently serviced by
the entity exercising such Optional Termination) and (ii) with respect to any
REO Property, the lesser of (x) the appraised value of any REO Property as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Depositor at the expense of the Depositor and (y)
the Stated Principal Balance of each Mortgage Loan in the related Loan Groups
related to any REO Property, in each case and (iii) any remaining unreimbursed
Advances, Servicing Advances and Servicing Fees. The Trustee shall give notice
to the Rating Agencies of election to purchase the Mortgage Loans pursuant to
this Section 10.01 and of the Optional Termination Date.
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Section 10.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section 10.01,
Vesta shall, at least twenty days prior to the date notice is to be mailed to
the affected Certificateholders notify the Trustee of such Optional
Termination Date and of the applicable purchase price of the Mortgage Loans to
be repurchased.
(b) Any repurchase of the Mortgage Loans by Vesta shall be made on an
Optional Termination Date by deposit of the applicable purchase price into the
Certificate Account, as applicable, before the Distribution Date on which such
repurchase is effected. Upon receipt by the Trustee of an Officer's
Certificate of Vesta certifying as to the deposit of such purchase price into
the Certificate Account, 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 Vesta, execute and deliver all such instruments of transfer or
assignment delivered to the Trustee by Vesta, in each case without recourse,
representation or warranty as shall be reasonably requested by Vesta, to vest
title in Vesta in the Mortgage Loans so repurchased and shall transfer or
deliver to Vesta the repurchased Mortgage Loans. Any distributions on the
Mortgage Loans which have been subject to an Optional Termination received by
the Trustee subsequent to (or with respect to any period subsequent to) the
Optional Termination Date shall be promptly remitted by it to Vesta.
(c) Notice of the Distribution Date on which a Servicer anticipates
that the final distribution shall be made as a result of such Servicer's
receipt of the remaining principal and interest due on the last Mortgage Loan
serviced by such Servicer, shall be given promptly by such Servicer to the
Trustee and, if such servicer is the sole remaining servicer of Mortgage Loans
in the related Group, by the Trustee by first class mail to Holders of the
affected Certificates. Such notice shall be mailed no earlier than the 15th
day and not later than the 10th day preceding the Optional Termination Date or
date of final distribution, as the case may be. Such notice shall specify (i)
the Distribution Date upon which final distribution on the affected
Certificates will be made upon presentation and surrender of such Certificates
at the office or agency therein designated, (ii) the amount of such final
distribution and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, such distribution being made only upon
presentation and surrender of such Certificates at the office or agency
maintained for such purposes (the address of which shall be set forth in such
notice).
(d) In the event that any Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trustee shall give a second written
notice to the remaining such Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain subject to the Trust Fund.
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Section 10.03 Additional Termination Requirements.
(a) In the event Vesta exercises its purchase option pursuant to
Section 10.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, unless the Trustee has received an Opinion
of Counsel to the effect that the failure to comply with the requirements of
this Section will not (i) result in the imposition of taxes on a "prohibited
transaction" of the REMIC, as described in Section 860F of the Code, or (ii)
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(A) within 90 days prior to the final Distribution Date set
forth in the notice given by Vesta under Section 10.02, the Holder of
the Class AR Certificates shall adopt a plan of complete liquidation
of the REMIC; and
(B) at or after the time of adoption of any such plan of
complete liquidation for the Trust Fund at or prior to the final
Distribution Date, the Trustee shall sell all of the assets of the
Trust Fund to the Depositor for cash; provided, however, that in the
event that a calendar quarter ends after the time of adoption of such
a plan of complete liquidation but prior to the final Distribution
Date, the Trustee shall not sell any of the assets of the Trust Fund
prior to the close of that calendar quarter.
(b) By its acceptance of a Class AR Certificate, the Holder thereof
hereby agrees to adopt such a plan of complete liquidation and to take such
other action in connection therewith as may be reasonably required to
liquidate and otherwise terminate the Trust Fund.
(c) Notwithstanding anything in this Agreement to the contrary, the
repurchase of any Mortgage Loan serviced by WMMSC by any Person shall be
subject to the rights of WMMSC to continue servicing such Mortgage Loan for
the same consideration substantially in accordance with the requirements of
this Agreement as if such Person were acting as Trustee hereunder with respect
to such Mortgage Loan.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Servicers, the Sellers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders,
(i) to cure any error or ambiguity,
(ii) to correct or supplement any provisions herein that may be
inconsistent with any other provisions herein or in the Prospectus
Supplement,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the
qualification of the Trust Fund as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund pursuant to the Code that
would be a claim against the Trust Fund, provided that the Trustee
has received an Opinion of Counsel to the effect that (A) such action
is necessary or desirable to maintain such qualification or to avoid
or minimize the risk of the imposition of any such tax and (B) such
action will not adversely affect the status of the Trust Fund as a
REMIC or adversely affect in any material respect the interests of
any Certificateholder,
(iv) in connection with the appointment of a successor servicer,
to modify, eliminate or add to any of the servicing provisions,
provided the Rating Agencies confirm the rating of the Certificates;
or
(v) to make any other provisions with respect to matters or
questions arising under this Agreement that are not materially
inconsistent with the provisions of this Agreement, provided that
such action shall not adversely affect in any material respect the
interests of any Certificateholder or cause an Adverse REMIC Event.
(b) This Agreement may be amended from time to time by the Depositor,
the Sellers, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing, in the aggregate, not less
than 66-2/3% of the Voting Rights of all the Certificates for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of the Certificates; provided, however, that no such amendment may (i)
reduce in any manner the amount of, delay the timing of or change the manner
in which payments received on or with respect to Mortgage Loans are required
to be distributed with respect to any Certificate without the consent of the
Holder of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of a Class of Certificates in a manner other than as
set forth in (i) above without the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Voting Rights of such Class, (iii)
reduce the aforesaid percentages of Voting Rights, the holders of which are
required to consent to any such amendment without the consent of 100% of the
Holders of Certificates of the Class affected thereby, (iv) change the
percentage of the Stated
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Principal Balance of the Mortgage Loans specified in Section 10.01(a) relating
to optional termination of the Trust Fund or (v) modify the provisions of this
Section 11.01.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(c) Promptly after the execution of any amendment to this Agreement,
the Trustee shall furnish written notification of the substance of such
amendment to each Certificateholder, and the Rating Agencies.
(d) Prior to the execution of any amendment to this Agreement, the
Trustee shall receive and be entitled to conclusively rely on an Opinion of
Counsel (at the expense of the Person seeking such amendment) stating that the
execution of such amendment is authorized and permitted by this Agreement and
that such amendment will not adversely affect the status of the Trust Fund as
a REMIC. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement.
Section 11.02 Recordation of Agreement; Counterparts.
(a) This Agreement (other than Schedule I) is subject to recordation
in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere. Such recordation, if any, shall be effected by
the related Servicer at its expense 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, DLJMC, the Servicers,
the Special Servicer and the Trustee that the conveyance by DLJMC to the
Depositor pursuant to the
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Assignment and Assumption Agreement and the conveyance by the Depositor to the
Trustee as provided for in Section 2.01 of each of the Sellers' and
Depositor's right, title and interest in and to the Mortgage Loans be, and be
construed as, an absolute sale and assignment by each 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 any conveyance be
deemed to be a pledge of the Mortgage Loans by DLJMC to the Depositor or by
the Depositor to the Trustee to secure a debt or other obligation. However, in
the event that the Mortgage Loans are held to be property of DLJMC or the
Depositor, or if for any reason the Mortgage Loan Purchase Agreement, the
Assignment and Assumption Agreement or this Agreement is held or deemed to
create a security interest in the Mortgage Loans, then it is intended that (i)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (ii) the
conveyances provided for in Section 2.01 shall be deemed to be a grant by the
Sellers and the Depositor to the Trustee on behalf of the Certificateholders,
to secure payment in full of the Secured Obligations (as defined below), of a
security interest in all of each 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, contract rights, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
uncertificated securities consisting of, arising from or relating to (A) the
Mortgage Loans, including with respect to each Mortgage Loan, the Mortgage
Note and related Mortgage, and all other documents in the related Trustee
Mortgage Files, and including any Qualified Substitute Mortgage Loans; (B)
pool insurance policies, hazard insurance policies and any bankruptcy bond
relating to the foregoing, if applicable; (C) the Certificate Account; (D) the
Collection Account; (E) all amounts payable after the Cut-off Date to the
holders of the Mortgage Loans in accordance with the terms thereof; (F) all
income, payments, proceeds and products of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held or
invested in the Certificate Account, whether in the form of cash, instruments,
securities or other property; and (G) all cash and non-cash proceeds of any of
the foregoing; (iii) the possession by the Trustee or any other agent of the
Trustee of Mortgage Notes or such other items of property as constitute
instruments, money, documents, advices of credit, letters of credit, goods,
certificated securities or chattel paper shall be deemed to be a "possession
by the secured party", or possession by a purchaser or a person designated by
him or her, for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305, 8-313
or 8-321 thereof); and (iv) notifications to persons holding such property,
and acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, securities intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. "Secured Obligations" means (i)
the rights of each Certificateholder to be paid any amount owed to it under
this Agreement and (ii) all other obligations of the Sellers and the Depositor
under this Agreement, the Assignment and Assumption Agreement and the Mortgage
Loan Purchase Agreement.
(b) The Sellers and the Depositor, and, at the Depositor's direction,
the Servicers and the Trustee, shall, to the extent consistent with this
Agreement, take such
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reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority as applicable. The Depositor
shall prepare and file, at the related Servicer's expense, all filings
necessary to maintain the effectiveness of any original filings necessary
under the Uniform Commercial Code as in effect in any jurisdiction to perfect
the Trustee's security interest in or lien on the Mortgage Loans, including
without limitation (i) continuation statements, and (ii) such other statements
as may be occasioned by any transfer of any interest of any Servicer or the
Depositor in any Mortgage Loan.
Section 11.05 Notices.
In addition to other notices provided under this Agreement, the
Trustee shall notify the Rating Agencies in writing: (a) of any substitution
of any Mortgage Loan; (b) of any payment or draw on any insurance policy
applicable to the Mortgage Loans; (c) of the final payment of any amounts
owing to a Class of Certificates; (d) any Event of Default under this
Agreement; and (e) in the event any Mortgage Loan is repurchased in accordance
with this Agreement.
All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when received (i) in the case of the
Depositor, Credit Suisse First Boston Mortgage Securities Corp., 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President; (ii) in the case of
the Trustee, the Corporate Trust Office, or such other address as may
hereafter be furnished to the Depositor in writing by the Trustee; (iii) in
the case of DLJMC, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxxx (with a copy to DLJ Mortgage Acceptance Corp., 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Office of the
General Counsel), or such other address as may be hereafter furnished to the
Depositor and the Trustee by DLJMC in writing, (iv) in the case of Washington
Mutual Mortgage Securities Corp., 00 Xxxxx Xxxxxxx Xxxxx, Xxxxxx Xxxxx, XX
00000, Attention: Master Servicing, with a copy to Washington Mutual Legal
Department, 0000 Xxxxx Xxxxxx, XXX 0000, Xxxxxxx, XX 00000, Attention: WMMSC
11497, or such other address as may be hereafter furnished in writing to the
Depositor and the Trustee by WMMSC, (v) in the case of Fitch, Inc., Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: [Xxxxxxxxx Xxxxxx]; (vi) in
the case of Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: [Xxxxxxxxx Xxxxxxxxx]; and (vii) in the case of Vesta,
Vesta Servicing, L.P., 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000-X, Xxxxxx, Xxxxx,
Attention: Xxxx Xxxx. Notices to Certificateholders shall be deemed given when
mailed, first class postage prepaid.
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.
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Section 11.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
provided herein, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 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.
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Section 11.09 Protection of Assets.
Except for transactions and activities entered into in connection
with the securitization that is the subject of this agreement, the trust
created by this agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii) engage in any business or activities.
Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after the Certificates have been paid.
120
IN WITNESS WHEREOF, the Depositor, the Sellers, the Servicers and the
Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized all as of the day and year first above
written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
DLJ MORTGAGE CAPITAL, INC.,
as Seller
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP.,
as a Seller and as a Servicer
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
VESTA SERVICING, L.P.,
as Special Servicer and as a Servicer
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: President
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
000
XXXXX XX XXXXXXXXXX )
: ss.:
COUNTY OF KING )
On the 28th day of November, 2001, before me, personally appeared
Xxxxxxx X. Xxxxxx, known to me to be a Vice President of Washington Mutual
Mortgage Securities Corp., one of the corporations that executed the within
instrument and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
--------------------------
Notary Public
[NOTARIAL SEAL]
0
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the 30th of November, 2001 before me, a Notary Public in and for
said State, personally appeared Xxxx X. Xxxxx known to me to be a Vice
President of Bank One, National Association, the national banking association
that executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
2
EXHIBIT A
[FORM OF CLASS I-A CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
A-1
Certificate No. :
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate :
Maturity Date :
A-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class I-A-[_]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of (i) a pool of fixed rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties and (ii) a pool of adjustable rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties (together, the "Mortgage Loans").
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
[Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein.] This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicers or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc. ("DLJMC"), as a
seller (a "Seller"), Washington Mutual Mortgage Securities Corp. ("WMMSC"), as
a seller (in such capacity, a "Seller" and together with DLJMC in its role as
a Seller, the "Sellers") and as a servicer (in such capacity, a "Servicer"),
Bank One, National Association, as trustee (the "Trustee"), and Vesta
Servicing, L.P., as a servicer (in such capacity, a "Servicer" and together
with WMMSC in its role as a Servicer, the "Servicers") and special servicer
(in such capacity, a "Special Servicer"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 29, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
A-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class I-A-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Seller,
A-5
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Seller, the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Seller, the Depositor, the Trustee or any such agent shall
be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the Aggregate Loan Balance as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans in such respective Group and all
property acquired in respect of the Mortgage Loans of such Group at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of a certain
person named in the Agreement living on the date of execution of the Agreement
or (ii) the Distribution Date in December, 2031.
A-6
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
A-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________,
for the account of ___________________________________________________________,
account number ____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
A-8
EXHIBIT B
[FORM OF CLASS II-A-1 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
B-1
Certificate No. :
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
CUSIP :
Interest Rate :
Maturity Date :
B-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class II-A-1
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of (i) a pool of fixed rate conventional mortgage
loans secured by first liens on one- to four-family residential
properties and (ii) a pool of adjustable rate conventional mortgage
loans secured by first liens on one- to four-family residential
properties (together, the "Mortgage Loans").
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicers or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc. ("DLJMC"), as a
seller (a "Seller"), Washington Mutual Mortgage Securities Corp. ("WMMSC"), as
a seller (in such capacity, a "Seller" and together with DLJMC in its role as
a Seller, the "Sellers") and as a servicer (in such capacity, a "Servicer"),
Bank One, National Association, as trustee (the "Trustee"), and Vesta
Servicing, L.P., as a servicer (in such capacity, a "Servicer" and together
with WMMSC in its role as a Servicer, the "Servicers") and special servicer
(in such capacity, a "Special Servicer"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
B-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 29, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
B-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class II-A-1
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
B-5
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Seller, and the Trustee with the
consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Seller, the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Seller, the Depositor, the Trustee or any such agent shall
be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the Aggregate Loan Balance as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans in such respective Group and all
property acquired in respect of the Mortgage Loans of such Group at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in
B-6
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however,
will the trust created by the Agreement continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
of a certain person named in the Agreement living on the date of execution of
the Agreement or (ii) the Distribution Date in December, 2031.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
B-7
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________,
for the account of ___________________________________________________________,
account number ____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
B-8
EXHIBIT C
[FORM OF CLASS I-B-[_] CERTIFICATE]
FOR CLASSES I-B-1, I-B-2 AND I-B-3 ONLY: [UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
FOR CLASSES I-B-4, I-B-5 AND I-B-6 ONLY: [THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"). ANY
RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION THEREOF UNDER THE
ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN.]
PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE
TRUSTEE (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE
CODE NOR A PERSON ACTING ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR USING THE
ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II) IF THE
PURCHASER IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF
AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. IN THE
EVENT THE REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT
FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE
C-1
TO THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY
BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY
FORM. IN THE EVENT THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO
TRANSFER THIS CERTIFICATE TO A PLAN OR PERSON ACTING ON BEHALF OF A PLAN OR
USING A PLAN'S ASSETS IS ATTEMPTED WITHOUT THE DELIVERY TO THE TRUSTEE OF THE
OPINION OF COUNSEL DESCRIBED ABOVE, THE ATTEMPTED TRANSFER OR ACQUISITION OF
THIS CERTIFICATE SHALL BE VOID AND OF NO EFFECT.]
C-2
Certificate No. :
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
C-3
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class I-B-[__]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of (i) a pool of fixed rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties and (ii) a pool of adjustable rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties (together, the "Mortgage Loans").
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicers or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [CEDE & CO.] [__________________], is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, DLJ Mortgage Capital,
Inc. ("DLJMC"), as a seller (a "Seller"), Washington Mutual Mortgage
Securities Corp. ("WMMSC"), as a seller (in such capacity, a "Seller" and
together with DLJMC in its role as a Seller, the "Sellers") and as a servicer
(in such capacity, a "Servicer"), Bank One, National Association, as trustee
(the "Trustee"), and Vesta Servicing, L.P., as a servicer (in such capacity, a
"Servicer" and together with WMMSC in its role as a Servicer, the "Servicers")
and special servicer (in such capacity, a "Special Servicer"). To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
For Classes I-B-4, I-B-5 and I-B-6 only: [No transfer of this Certificate
shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws or is exempt from the registration requirements under said Act
and such laws. In the event that a transfer is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee in writing the facts surrounding the transfer and
(i) deliver a letter in substantially the form of either Exhibit M-2 to
C-4
the Agreement or (ii) there shall be delivered to the Trustee at the expense
of the transferor an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Securities Act. In the event that such a
transfer is to be made within three years from the date of the initial
issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Securities Act)
to the Trustee an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the Securities Act. The Holder hereof desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.]
Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Certificate shall be made unless the Trustee shall have received either (i) a
representation letter from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Trusteer, to the effect that
such transferee is not an employee benefit plan subject to Section 406 of
ERISA or Section 4975 of the Code, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement to
effect such transfer, which representation letter shall not be an expense of
the Trustee or the Trust Fund, (ii) if the purchaser is an insurance company
and the Certificate has been the subject of an ERISA-Qualifying Underwriting,
a representation that the purchaser is an insurance company which is
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE
95-60 or (iii) in the case of any such Certificate presented for registration
in the name of an employee benefit plan subject to ERISA, or Section 4975 of
the Code (or comparable provisions of any subsequent enactments), or a trustee
of any such plan or any other person acting on behalf of any such plan or
arrangement, or using such plan's or arrangement's assets, an Opinion of
Counsel satisfactory to the Trustee to the effect that the purchase or holding
of such Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Depositor, the
Trustee, the Servicers or the Special Servicer to any obligation in addition
to those undertaken in this Agreement, which Opinion of Counsel shall not be
an expense of the Trustee or the Trust Fund. In the event the representations
referred to in the preceding sentence are not furnished, such representation
shall be deemed to have been made to the trustee by the transferee's
acceptance of this certificate, or by any beneficial owner who purchases an
interest in this certificate in book-entry form. In the event that a
representation is violated, or any attempt to transfer this certificate to a
plan or person acting on behalf of a plan or using a plan's assets is
attempted without the delivery to the trustee of the opinion of counsel
described above, the attempted transfer or acquisition of this certificate
shall be void and of no effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 29, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
C-6
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class I-B-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Seller
C-7
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Seller, the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Seller, the Depositor, the Trustee or any such agent shall
be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the Aggregate Loan Balance as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans in such respective Group and all
property acquired in respect of the Mortgage Loans of such Group at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of a certain
person named in the Agreement living on the date of execution of the Agreement
or (ii) the Distribution Date in December, 2031.
C-8
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
C-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________,
for the account of ___________________________________________________________,
account number ____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
C-10
EXHIBIT D
[FORM OF CLASS AR CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING ON BEHALF OF THAT
PLAN OR ARRANGEMENT NOR USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT
THAT TRANSFER, OR (B) IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS AN INSURANCE COMPANY WHICH IS PURCHASING
THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL
ACCOUNT," AS THAT TERM IS DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60, OR PTCE 95-60, AND THAT THE PURCHASE AND HOLDING OF
THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE 95-60, OR (C) AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
D-1
Certificate No. : [1][2]
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Pass-Through Rate :
Maturity Date :
D-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class AR
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of (i) a pool of fixed rate conventional mortgage
loans secured by first liens on one- to four-family residential
properties and (ii) a pool of adjustable rate conventional mortgage
loans secured by first liens on one- to four-family residential
properties (together, the "Mortgage Loans").
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicers or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [Bank One, National Association] [Credit Suisse First
Boston Corporation], is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate of the denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting primarily of the Mortgage Loans deposited
by Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor"). The
Trust Fund was created pursuant to a Pooling and Servicing Agreement dated as
of the Cut-off Date specified above (the "Agreement") among the Depositor, DLJ
Mortgage Capital, Inc. ("DLJMC"), as a seller (a "Seller"), Washington Mutual
Mortgage Securities Corp. ("WMMSC"), as a seller (in such capacity, a "Seller"
and together with DLJMC in its role as a Seller, the "Sellers") and as a
servicer (in such capacity, a "Servicer"), Bank One, National Association, as
trustee (the "Trustee"), and Vesta Servicing, L.P., as a servicer (in such
capacity, a "Servicer" and together with WMMSC in its role as a Servicer, the
"Servicers") and special servicer (in such capacity, a "Special Servicer"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class AR
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class AR Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on
D-3
behalf of any such plan or arrangement or using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be
an expense of the Trustee or the Trust Fund or (ii) if the transferee is an
insurance company, a representation that the transferee is an insurance
company which is purchasing this certificate with funds contained in an
"insurance company general account," as that term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60, or PTCE 95-60, and that the
purchase and holding of this certificate are covered under Sections I and II
of PTCE 95-60, or (iii) in the case of any such Class AR Certificate presented
for registration in the name of an employee benefit plan subject to ERISA, or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee to the effect that
the purchase or holding of such Class AR Certificate will not result in the
assets of the Trust Fund being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject
the Depositor, Trustee or the Servicers or the Special Servicer to any
obligation in addition to those undertaken in this Agreement, which Opinion of
Counsel shall not be an expense of the Trustee or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Class AR Certificate to or on behalf of an employee benefit plan subject
to ERISA or to the Code without the Opinion of Counsel satisfactory to the
Trustee as described above shall be void and of no effect.
Each Holder of this Class AR Certificate will be deemed to have agreed to
be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class AR Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class AR Certificate may be transferred without
delivery to the Trustee of a transfer affidavit of the initial owner or the
proposed transferee in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class AR Certificate must
agree to require a transfer affidavit from any other person to whom such
person attempts to Transfer its Ownership Interest in this Class AR
Certificate as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class AR Certificate must agree not to
transfer an Ownership Interest in this Class AR Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v)
any attempted or purported transfer of any Ownership Interest in this Class AR
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
D-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 29, 2001.
BANK ONE, NATIONAL ASSOCIATION
as Trustee
By ________________________________4
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
D-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class AR
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Seller
D-6
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Seller, Trustee and any agent of the
Depositor, the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the the
Servicers, the Seller, the Depositor, Trustee or any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the Aggregate Loan Balance as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans in such respective Group and all
property acquired in respect of the Mortgage Loans of such Group at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of a certain
person named in the Agreement living on the date of execution of the Agreement
or (ii) the Distribution Date in December, 2031.
D-7
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
D-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________,
for the account of ___________________________________________________________,
account number ____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
D-9
EXHIBIT E
[FORM OF CLASS I-X CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE WILL NOT BE ENTITLED TO ANY DISTRIBUTIONS OF PRINCIPAL.
E-1
Certificate No. :
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Initial Notional Amount of this
Certificate ("Denomination") :
Initial Class Notional Amount of
all Certificates of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
E-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-28
Class I-X
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of (i) a pool of fixed rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties and (ii) a pool of adjustable rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties (together, the "Mortgage Loans").
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Servicers or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc. ("DLJMC"), as a
seller (a "Seller"), Washington Mutual Mortgage Securities Corp. ("WMMSC"), as
a seller (in such capacity, a "Seller" and together with DLJMC in its role as
a Seller, the "Sellers") and as a servicer (in such capacity, a "Servicer"),
Bank One, National Association, as trustee (the "Trustee"), and Vesta
Servicing, L.P., as a servicer (in such capacity, a "Servicer" and together
with WMMSC in its role as a Servicer, the "Servicers") and special servicer
(in such capacity, a "Special Servicer"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
E-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 29, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
E-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage Pass-Through Certificates, Series 2001-28
Class I-X
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp., Mortgage
Pass-Through Certificates, Series 2001-28, of the Series specified on the face
hereof (herein collectively called the "Certificates"), and representing a
beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Seller and the Trustee with the
consent of the Holders of Certificates affected by such amendment
E-5
evidencing the requisite Percentage Interest, as provided in the Agreement.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange therefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Seller and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Seller, the Depositor, the Trustee, or any such agent shall
be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the Aggregate Loan Balance as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans in such respective Group and all
property acquired in respect of the Mortgage Loans of such Group at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of a certain
person named in the Agreement living on the date of execution of the Agreement
or (ii) the Distribution Date in December, 2031.
E-6
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________,
for the account of ___________________________________________________________,
account number ____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
E-8
EXHIBIT F
[FORM OF CLASS I-P CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE WILL NOT BE ENTITLED TO ANY DISTRIBUTIONS OF INTEREST.
F-1
Certificate No.___:
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate : None
Maturity Date :
F-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class I-P
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of (i) a pool of fixed rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties and (ii) a pool of adjustable rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties (together, the "Mortgage Loans").
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Servicers or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc. ("DLJMC"), as a
seller (a "Seller"), Washington Mutual Mortgage Securities Corp. ("WMMSC"), as
a seller (in such capacity, a "Seller" and together with DLJMC in its role as
a Seller, the "Sellers") and as a servicer (in such capacity, a "Servicer"),
Bank One, National Association, as trustee (the "Trustee"), and Vesta
Servicing, L.P., as a servicer (in such capacity, a "Servicer" and together
with WMMSC in its role as a Servicer, the "Servicers") and special servicer
(in such capacity, a "Special Servicer"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
F-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 29, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By ________________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
F-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class I-P
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp., Mortgage
Pass-Through Certificates, Series 2001-28, of the Series specified on the face
hereof (herein collectively called the "Certificates"), and representing a
beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Seller and the Trustee with the
consent of the Holders of Certificates affected by such amendment
F-5
evidencing the requisite Percentage Interest, as provided in the Agreement.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange therefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Seller and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Seller, the Depositor, the Trustee, or any such agent shall
be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the Aggregate Loan Balance as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans in such respective Group and all
property acquired in respect of the Mortgage Loans of such Group at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of a certain
person named in the Agreement living on the date of execution of the Agreement
or (ii) the Distribution Date in December, 2031.
F-6
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
F-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________,
for the account of ___________________________________________________________,
account number ____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
F-8
EXHIBIT G
[FORM OF CLASS PP CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE WILL ONLY BE ENTITLED TO AMOUNTS RECEIVED IN RESPECT OF
PREPAYMENT PENALITIES COLLECTED ON CERTAIN MORTGAGE LOANS AS DESCRIBED IN THE
AGREEMENT.
G-1
Certificate No. :
Cut-off Date : November 1, 2001
First Distribution Date : December 26, 2001
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates
of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
G-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class PP
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of (i) a pool of fixed rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties and (ii) a pool of adjustable rate
conventional mortgage loans secured by first liens on one- to
four-family residential properties (together, the "Mortgage Loans").
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicers or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [__________________], is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc. ("DLJMC"), as a
seller (a "Seller"), Washington Mutual Mortgage Securities Corp. ("WMMSC"), as
a seller (in such capacity, a "Seller" and together with DLJMC in its role as
a Seller, the "Sellers") and as a servicer (in such capacity, a "Servicer"),
Bank One, National Association, as trustee (the "Trustee"), and Vesta
Servicing, L.P., as a servicer (in such capacity, a "Servicer" and together
with WMMSC in its role as a Servicer, the "Servicers") and special servicer
(in such capacity, a "Special Servicer"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
G-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 29, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By _______________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
G-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28
Class PP
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-28, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Seller
G-5
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Seller, the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Seller, the Depositor, the Trustee or any such agent shall
be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 5% of the Aggregate Loan Balance as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans in such respective Group and all
property acquired in respect of the Mortgage Loans of such Group at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by
the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of a certain
person named in the Agreement living on the date of execution of the Agreement
or (ii) the Distribution Date in December, 2031.
G-6
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.
G-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ___________________________________________________________,
for the account of ___________________________________________________________,
account number ____________, or, if mailed by check, to ______________________
_______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
______________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
G-8
EXHIBIT H
FORM OF SERVICER INFORMATION
The following information will be e-mailed to the Trustee in accordance with
Section 4.05:
Servicer Loan Number
Trust Loan Number (if applicable)
Scheduled Net Interest
Scheduled Principal
Curtailment Applied
Curtailment Adjustment
Mortgage Rate
Servicing Fee Rate
P&I Payment
Beginning Scheduled Balance
Ending Scheduled Balance
Ending Actual Principal Balance
Due Date
Prepayment in full Principal
Prepayment in full Net Interest
Delinquencies:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
Loss Amounts & Loss Types (i.e., Bankruptcy, Excess, Extraordinary, Deficient
Valuation, Debt Reduction)
Xxxx Xxxxx
Bank One, National Association
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone No.
Fax No.
xxxx_xxxxx@xxxxxxx.xxx
H-1
EXHIBIT I
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[_________________, 200_]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [__________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
Pooling and Servicing Agreement, the undersigned, as Trustee, hereby certifies
that, except for the exceptions noted on the schedule attached hereto, it has
(a) received an original Mortgage Note with respect to each Mortgage Loan
listed on the Mortgage Loan Schedule and (b) received an original Mortgage (or
a certified copy thereof) with respect to each Mortgage Loan listed on the
Mortgage Loan Schedule in accordance with Section 2.01 of the Pooling and
Servicing Agreement. The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
mentioned above. The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement or any of the Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has granted
to the Trustee for the benefit of the Certificateholders a security interest
in all of the Depositor's right, title and interest in and to the Mortgage
Loans.
Capitalized terms used herein without definition shall have the meaning
assigned to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------------
Authorized Representative
I-1
EXHIBIT J
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [___________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement the undersigned, as Trustee,
hereby certifies that, except for the exceptions noted on the schedule
attached hereto, as to each Mortgage Loan listed in the Mortgage Loan Schedule
it has reviewed the Mortgage File and has determined that (based solely on its
review of each such documents on its face) (i) all documents described in
clauses (i)-(v) of Section 2.01(b) of the Pooling and Servicing Agreement are
in its possession, (ii) such documents have been reviewed by it and have not
been mutilated, damaged, defaced, torn or otherwise physically altered and
such documents relate to such Mortgage Loan and (iii) each Mortgage Note has
been endorsed and each assignment of Mortgage has been delivered as provided
in Section 2.01 of the Pooling and Servicing Agreement. The Trustee has made
no independent examination of any documents required to be delivered in
accordance with Section 2.01 of the Pooling and Servicing Agreement beyond the
review specifically required therein. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents required to be delivered in accordance with Section 2.01
of the Pooling and Servicing Agreement or any of the Mortgage Loans identified
on the Mortgage Loan Schedule, or (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan.
J-1
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Representative
J-2
EXHIBIT K
FORM OF REQUEST FOR RELEASE
[date]
To: Bank One, National Association
In connection with the administration of the Mortgage Loans held by you
as Trustee under Pooling and Servicing Agreement dated as of November 1, 2001
(the "Pooling and Servicing Agreement") among Credit Suisse First Boston
Mortgage Securities Corp., as depositor (the "Depositor"), DLJ Mortgage
Capital, Inc. ("DLJMC"), as a seller (a "Seller"), Washington Mutual Mortgage
Securities Corp. ("WMMSC"), as a seller (in such capacity, a "Seller" and
together with DLJMC in its role as a Seller, the "Sellers") and as a servicer
(in such capacity, a "Servicer"), Bank One, National Association, as trustee
(the "Trustee"), and Vesta Servicing, L.P., as a servicer (in such capacity, a
"Servicer" and together with WMMSC in its role as a Servicer, the "Servicers")
and special servicer (in such capacity, a "Special Servicer"), the undersigned
hereby requests a release of the Mortgage File held by you as Trustee with
respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be credited to
the Certificate Account pursuant to the Pooling and Servicing
Agreement.)
____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price has been
credited to the Certificate Account pursuant to the Pooling and
Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held by
the undersigned in accordance with the provisions of the Pooling and Servicing
Agreement and will be returned, except if the Mortgage Loan has been paid in
full or repurchased (in which case the Mortgage File will be retained by us
permanently) when no longer required by us for such purpose.
K-1
Capitalized terms used herein shall have the meanings ascribed to them in
the Pooling and Servicing Agreement.
[NAME OF SERVICER]
By:
------------------------------
Name:
Title:
K-2
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trustee]
Re: [__________________] Mortgage-Backed Pass-Through Certificates,
Series 200_-__
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we understand that the Certificates have not been registered under
the Securities Act of 1933, as amended (the "Act"), and are being disposed by
us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers
to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, in a manner that would be
deemed, or taken any other action which would result in, a violation of
Section 5 of the Act and (c) to the extent we are disposing of a Class AR
Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
---------------------------
Print Name of Transferor
By:
-----------------------------------
Authorized Officer
L-1
EXHIBIT M-1
FORM OF INVESTMENT LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trustee]
Re: [__________________] Mortgage-Backed Pass-Through Certificates,
Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) if we are an insurance company,
we are purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60, (e) we are acquiring the Certificates for investment for our
own account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of
the Certificates in accordance with clause (g) below), (f) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of
Section 5 of the Act, and (g) we will not sell, transfer or otherwise dispose
of any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act or is
exempt from such registration requirements, and if requested, we will at our
expense provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made pursuant
to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and
M-1-1
(3) the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
------------------------
Print Name of Transferee
By:
-------------------------------
Authorized Officer
M-1-2
EXHIBIT M-2
FORM OF RULE 144A LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trustee]
Re: [__________________] Mortgage-Backed Pass-Through Certificates,
Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement nor using the assets of any such plan or arrangement
to effect such acquisition, or (ii) if an insurance company, we are purchasing
the Certificates with funds contained in an "insurance company general
account" (as defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and our purchase and holding of the Certificates are
covered under Sections I and III of PTCE 95-60, (e) we have not, nor has
anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or require registration
pursuant thereto, nor will act, nor has authorized or will authorize any
person to act, in such manner with respect to the Certificates, (f) we are a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Act ("Rule 144A") and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2, (g) we are aware that the
sale to us is being made in reliance on Rule 144A, and (i) we are acquiring
the Certificates for our own account or for resale pursuant to Rule 144A and
further,
M-2-1
understand that such Certificates may be resold, pledged or transferred only
(A) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (B) pursuant to another exemption from
registration under the Act.
Very truly yours,
________________________________
Print Name of Transferee
By:
--------------------------
Authorized Officer
M-2-2
EXHIBIT N
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or
beneficial owner (the "Owner") of the Class AR Certificates (the "Class AR
Certificates")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States], on behalf of
which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code"), (ii)
will endeavor to remain other than a disqualified organization for so long as
it retains its ownership interest in the Class AR Certificates, and (iii) is
acquiring the Class AR Certificates for its own account. A "Permitted
Transferee" is any person other than a "disqualified organization". (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class AR Certificates to disqualified organizations under the
Code; (ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class AR Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, if a significant purpose of
the transfer was to enable the transferor to impede the assessment or
collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class AR Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of
an interest in such entity. (For this purpose, a
N-1
"pass through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the
Transfer of any Class AR Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it
knows or believes that any of the representations contained in such affidavit
and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face
of the Class AR Certificates and the provisions of Section 6.02 of the Pooling
and Servicing Agreement under which the Class AR Certificates were issued. The
Owner expressly agrees to be bound by and to comply with such restrictions and
provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class AR Certificates
will only be owned, directly or indirectly, by an Owner that is a Permitted
Transferee.
8. That the Owner's Taxpayer Identification Number is
________________.
9. That the Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any State thereof or the District of Columbia, or
an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
10. That no purpose of the Owner relating to the purchase of the
Class AR Certificate by the Owner is or will be to impede the assessment or
collection of tax.
11. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the Class AR
Certificate by the Owner will be to impede the assessment or collection of
tax.
14. The Owner hereby agrees to cooperate with the Trustee and to take
any action required of it by the Code or Treasury regulations thereunder
(whether now or hereafter promulgated) in order to create or maintain the
REMIC status of the Trust Fund.
15. That the Owner
N-2
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code") (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate
with "plan assets" of any Plan; or
(b) is an insurance company, the source of funds to be used by
it to purchase the Certificates is an "insurance company general account"
(within the meaning of Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III of PTCE
95-60.
16. The Owner hereby agrees that it will not take any action
that could endanger the REMIC status of the Trust Fund or result in the
imposition of tax on the Trust Fund unless counsel for, or acceptable to, the
Trustee has provided an opinion that such action will not result in the loss
of such REMIC status or the imposition of such tax, as applicable.
17. The Owner has provided financial statements or other
financial information requested by the transferor in connection with the
transfer of the Residual Certificates to permit the transferor to assess the
financial capability of the Owner to pay any such taxes.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this ____ day of ___________.
[NAME OF OWNER]
By:
----------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
__________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
N-3
Subscribed and sworn before me this _____ day of _______________________.
___________________________________________
NOTARY PUBLIC
COUNTY OF _________________________________
STATE OF _________________________________
My Commission expires the _____day of
__________________, 20____.
N-4
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[_____________________]
[_____________________]
[_____________________]
Re: [_________________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-___, Class AR (the "Certificates")
-------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_________________ (the "Seller") to ____________________________________ (the
"Purchaser") of a _______% Percentage Interest in the above referenced
Certificates, pursuant to Section 6.02 of the Pooling and Servicing Agreement
dated as of November 1, 2001 (the "Pooling and Servicing Agreement") among the
Depositor, DLJ Mortgage Capital, Inc. ("DLJMC"), as a seller (a "Seller"),
Washington Mutual Mortgage Securities Corp. ("WMMSC"), as a seller (in such
capacity, a "Seller" and together with DLJMC in its role as a Seller, the
"Sellers") and as a servicer (in such capacity, a "Servicer"), Bank One,
National Association, as trustee (the "Trustee"), and Vesta Servicing, L.P.,
as a servicer (in such capacity, a "Servicer" and together with WMMSC in its
role as a Servicer, the "Servicers") and special servicer (in such capacity, a
"Special Servicer"). All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The Seller
hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Trustee that:
1. No purpose of the Seller relating to sale of the Certificate by the Seller
to the Purchaser is or will be to enable the Seller to impede the assessment
or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the Trustee a
transfer affidavit and agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit K. The Seller does not know or believe that any
representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee is not a
Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be unwilling or
unable to pay taxes due on its share of the taxable income attributable to the
Certificate.
5. The Seller has conducted a reasonable investigation of the financial
condition of the Purchaser and, as a result of the investigation, found that
the Purchaser has historically paid its
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debts as they came due, and found no significant evidence to indicate that the
Purchaser will not continue to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the Certificate
constitutes a noneconomic residual interest, it (i) understands that as holder
of a noneconomic residual interest it may incur tax liabilities in excess of
any cash flows generated by the interest, and (ii) intends to pay taxes
associated with its holding of the Certificate as they become due.
Very truly yours,
[SELLER]
By:
----------------------------------------
Name:
Title:
O-2
EXHIBIT P
FORM OF TGIC PMI POLICY
[PLEASE SEE TAB 12]
P-1
EXHIBIT Q-1
FORM OF ESCROW ACCOUNT CERTIFICATE
[On file]
Q-1-1
EXHIBIT Q-2
FORM OF ESCROW ACCOUNT LETTER
[On file]
Q-2-1
SCHEDULE IA
Mortgage Loan Schedule - DLJ Loans
[On File]
IA-1
SCHEDULE IB
Mortgage Loan Schedule - WMMSC Loans
[On File]
IB-1
Schedule II
Representations and Warranties of the Sellers and Servicers
A. Representations and Warranties of DLJMC.
DLJ Mortgage Capital, Inc. ("DLJMC") hereby makes the representations and
warranties set forth in this Schedule IIA to the Depositor and the Trustee, as
of November 30, 2001, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule IIA shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement
dated as of the Cut-off Date (the "Agreement") among the Depositor, DLJMC, as
a seller (a "Seller"), Washington Mutual Mortgage Securities Corp. ("WMMSC"),
as a seller (in such capacity, a "Seller" and together with DLJ in its role as
a Seller, the "Sellers") and as a servicer (in such capacity, a "Servicer"),
Bank One, National Association, as trustee (the "Trustee"), and Vesta
Servicing, L.P., as a servicer (in such capacity, a "Servicer" and together
with WMMSC in its role as a Servicer, the "Servicers") and special servicer
(in such capacity, the "Special Servicer").
(i) DLJMC is duly organized as a Delaware corporation and is validly
existing and in good standing under the laws of the State of Delaware.
DLJMC has all requisite power and authority to enter into the Agreement,
and to carry out the transactions contemplated thereby.
(ii) The execution and delivery by DLJMC of the Agreement and the
consummation of the transactions contemplated thereby have each been duly
and validly authorized by all necessary action, and the Agreement
constitutes a valid and legally binding agreement of DLJMC, enforceable
against DLJMC in accordance with its terms, except that (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(iii) The execution and delivery of the Agreement and the
consummation of the transactions contemplated thereby will not violate,
conflict with, result in a breach of, constitute a default under or be
prohibited by, or require any additional approval, waiver or consent
under DLJMC's certificate of incorporation or by-laws or any instrument
or agreement to which it is a party or by which it is bound or any
federal or state law, rule or regulation or any judicial or
administrative decree, order, ruling or regulation applicable to it.
(iv) There is no litigation or action at law or in equity pending,
or, to its knowledge, threatened against DLJMC and no proceeding or
investigation of any kind is pending or, to its knowledge, threatened, by
any federal, state or local governmental or administrative body, which
could reasonably be expected to materially and adversely affect DLJMC's
ability to consummate the transactions contemplated by the Agreement.
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B. Representations and Warranties of WMMSC.
Washington Mutual Mortgage Securities Corp. ("WMMSC") hereby makes the
representations and warranties set forth in this Schedule IIB to the Depositor
and the Trustee, as of November 30, 2001, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this
Schedule IIB shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement dated as of the Cut-off Date (the "Agreement") among the
Depositor, DLJMC, as a seller (a "Seller"), WMMSC, as a seller (in such
capacity, a "Seller" and together with DLJ in its role as a Seller, the
"Sellers") and as a servicer (in such capacity, a "Servicer"), Bank One,
National Association, as trustee (the "Trustee"), and Vesta Servicing, L.P.,
as a servicer (in such capacity, a "Servicer" and together with WMMSC in its
role as a Servicer, the "Servicers") and special servicer (in such capacity,
the "Special Servicer"). Each reference to a "Mortgage Loan" in this Schedule
IIB shall mean a WMMSC Loan and/or a WMMSC Serviced Loan, and each reference
to a "Mortgaged Property" shall mean a Mortgaged Property related to such
WMMSC Loan and/or WMMSC Serviced Loan.
(i) WMMSC is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and is qualified
under the laws of each state where required by applicable law or is
otherwise exempt under applicable law from such qualification.
(ii) WMMSC has all requisite corporate power, authority and capacity
to enter into the Agreement and to perform the obligations required of it
thereunder. The Agreement (assuming the due authorization and execution
of the Agreement by the other parties thereto) constitutes a valid and
legally binding agreement of WMMSC enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors.
(iii) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will result
in the breach of, or constitute a default under, any term or provision of
the organizational documents of WMMSC or conflict with, result in a
material breach, violation or acceleration of or constitute a material
default under, the terms of any indenture or other agreement or
instrument to which WMMSC is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to WMMSC of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over WMMSC.
(iv) There is no action, suit, proceeding or investigation pending,
or to WMMSC's knowledge threatened, against WMMSC before any court,
administrative agency or other tribunal (a) asserting the invalidity of
the Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated thereby or (c) which might materially and
adversely affect the performance by WMMSC of its obligations under, or
the validity or enforceability of, the Agreement.
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(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the execution, delivery and performance by WMMSC
of the Agreement or the consummation of the transactions contemplated by
the Agreement.
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C. Representations and Warranties of Vesta.
Vesta Servicing L.P. hereby makes the representations and warranties set
forth in this Schedule IID to the Depositor and the Trustee, as of November
30, 2001, or if so specified herein, as of the Cut-off Date. Capitalized terms
used but not otherwise defined in this Schedule IID shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement dated as of the
Cut-off Date (the "Agreement") among the Depositor, DLJ Mortgage Capital, Inc.
("DLJMC"), as a seller (a "Seller"), Washington Mutual Mortgage Securities
Corp. ("WMMSC"), as a seller (in such capacity, a "Seller" and together with
DLJ in its role as a Seller, the "Sellers") and as a servicer (in such
capacity, a "Servicer"), Bank One, National Association, as trustee (the
"Trustee"), and Vesta Servicing, L.P., as a servicer (in such capacity, a
"Servicer" and together with WMMSC in its role as a Servicer, the "Servicers")
and special servicer (in such capacity, a "Special Servicer"). Each reference
to a "Mortgage Loan" in this Schedule IIC shall mean a Vesta Serviced Loan,
and each reference to a "Mortgaged Property" shall mean a Mortgaged Property
related to a Vesta Serviced Loan.
Vesta is a limited partnership duly formed, validly existing and in good
standing under the laws of the State of Delaware and is qualified under the
laws of each state where required by applicable law or is otherwise exempt
under applicable law from such qualification.
Vesta has all requisite corporate power, authority and capacity to enter into
the Agreement and to perform the obligations required of it thereunder. The
Agreement (assuming the due authorization and execution of the Agreement by
the other parties thereto) constitutes a valid and legally binding agreement
of Vesta enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting the
enforceability of the rights of creditors.
None of the execution and delivery of the Agreement, the consummation of any
other transaction contemplated therein, or the fulfillment of or compliance
with the terms of the Agreement, will result in the breach of, or constitute a
default under, any term or provision of the organizational documents of Vesta
or conflict with, result in a material breach, violation or acceleration of or
constitute a material default under, the terms of any indenture or other
agreement or instrument to which Vesta is a party or by which it is bound, or
any statute, order, judgment, or regulation applicable to Vesta of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Vesta.
There is no action, suit, proceeding or investigation pending, or to Vesta's
knowledge threatened, against Vesta before any court, administrative agency or
other tribunal (a) asserting the invalidity of the Agreement, (b) seeking to
prevent the consummation of any of the transactions contemplated thereby or
(c) which might materially and adversely affect the performance by Vesta of
its obligations under, or the validity or enforceability of, the Agreement.
No consent, approval, authorization or order of any court, regulatory body or
governmental agency or court is required, under state or federal law prior to
the execution, delivery and performance by Vesta of the Agreement or the
consummation of the transactions contemplated by the Agreement.
II-4
Schedule III
Representations and Warranties as to the Mortgage Loans
A. Representations and Warranties of DLJMC, as Seller, with respect to
the DLJ Loans.
DLJ Mortgage Capital, Inc. ("DLJMC"), as Seller with respect to the DLJ
Loans hereby makes the representations and warranties set forth in this
Schedule IIIA to Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor") and Bank One, National Association ("Trustee"), except as
otherwise expressly provided in this Schedule IIIA, as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule IIIA shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement
dated as of the Cut-off Date (the "Agreement") among the Depositor, DLJMC, as
a seller (a "Seller"), Washington Mutual Mortgage Securities Corp. ("WMMSC"),
as a seller (in such capacity, a "Seller" and together with DLJMC in its role
as a Seller, the "Sellers") and as a servicer (in such capacity, a
"Servicer"), the Trustee, and Vesta Servicing, L.P., as a servicer (in such
capacity, a "Servicer" and together with WMMSC in its role as a Servicer, the
"Servicers") and special servicer (in such capacity, the "Special Servicer").
Each reference to a "Mortgage Loan" in this Schedule IIIA shall mean a DLJ
Loan, and each reference to a "Mortgaged Property" shall mean a Mortgaged
Property related to a DLJ Loan.
(i) The information set forth in Schedule IA is complete, true and
correct in all material respects;
(ii) With respect to a Mortgage Loan that is not a Co-op Loan, the
Mortgage creates a first lien or a first priority ownership interest in
an estate in fee simple in real property securing the related Mortgage
Note. With respect to a Mortgage Loan that is a Co-op Loan, the Mortgage
creates a first lien or a first priority ownership interest in the stock
ownership and leasehold rights associated with the cooperative unit
securing the related Mortgage Note;
(iii) All payments due prior to the Cut-off Date for such Mortgage
Loan have been made as of the Closing Date, the Mortgage Loan is not
delinquent in payment more than 30 days; there are no material defaults
under the terms of the Mortgage Loan. Except for (a) payments in the
nature of escrow payments and (b) interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever
is greater, to the day which precedes by one month the Due Date of the
first installment payment of principal and interest, including, without
limitation, taxes and insurance payments, the Seller has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the Mortgaged Property subject to
the Mortgage, directly or indirectly, for the payment of any amount
required by the Mortgage Loan;
(iv) All taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay
for every such escrowed item which remains unpaid and which has been
assessed but is not yet due and payable;
(v) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded or sent for recording to the extent
any such recordation is required by law, or, necessary to protect the
interest of the Purchaser. No other instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in
whole or in part, from the terms thereof except in connection with an
assumption agreement and which assumption agreement is part of the
Mortgage File and the terms of which are reflected in Schedule IA; the
substance of any such waiver, alteration or modification has been
approved by the issuer of any related Primary Mortgage Insurance Policy
and title insurance policy, to the extent required by the related
policies;
(vi) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of the
terms of the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render the Mortgage Note or Mortgage unenforceable, in whole
or in part, or subject to any right of rescission, set-off, counterclaim
or defense, including the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto; and the Mortgagor was not a debtor in any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage Loan
was originated;
(vii) All buildings or other customarily insured improvements upon
the Mortgaged Property are insured by an insurer acceptable under the
FNMA Guides, against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the FNMA Guides or by FHLMC, as well
as all additional requirements set forth in Section 4.10 of this
Agreement. All such standard hazard policies are in full force and effect
and on the date of origination contained a standard mortgagee clause
naming the Seller and its successors in interest and assigns as loss
payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as amended, the Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal
Insurance Administration which policy conforms to FNMA and FHLMC
requirements, as well as all additional requirements set forth in Section
4.10 of this Agreement. Such policy was issued by an insurer acceptable
under FNMA or FHLMC guidelines. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from the Mortgagor;
(viii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan have been
complied with in all material respects;
III-2
(ix) The Mortgage has not been satisfied, canceled or subordinated,
in whole or in part, or rescinded, and the Mortgaged Property has not
been released from the lien of the Mortgage, in whole or in part nor has
any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor
has the Seller waived any default resulting from any action or inaction
by the Mortgagor;
(x) The Mortgage is a valid, subsisting, enforceable and perfected
first lien on the Mortgaged Property, including for Mortgage Loans that
are not Co-op Loans, all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air
conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the
foregoing securing the Mortgage Note's original principal balance. The
Mortgage and the Mortgage Note do not contain any evidence of any
security interest or other interest or right thereto;
(xi) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject
to bankruptcy, insolvency, moratorium, reorganization and other laws of
general application affecting the rights of creditors and by general
equitable principles. All parties to the Mortgage Note and the Mortgage
had the legal capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage. The Mortgage Note and the
Mortgage have been duly and properly executed by such parties. No fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of Seller or the
Mortgagor, or, to the best of the Seller's knowledge, on the part of any
other party involved in the origination of the Mortgage Loan. Except to
the extent the Mortgage Loan is subject to completion escrows which have
been disclosed to the Purchaser and as to which a completed FNMA form 442
has been delivered to the Purchaser within sixty (60) days after the
Closing Date, the proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and
all requirements as to completion of any on-site or off-site improvements
and as to disbursements of any escrow funds therefor have been satisfied.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and the recording of the Mortgage were paid or are in the process of
being paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(xii) The Seller or its affiliate is the sole owner of record and
holder of the Mortgage Loan, except for the assignments of mortgage which
have been sent for recording, and upon recordation the Purchaser or its
designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan to
the Purchaser, the Seller or the Servicer will retain the Mortgage File
or any part thereof with respect thereto not delivered to the Purchaser
or the Purchaser's designee in trust only for the purpose of servicing
and supervising the servicing of the Mortgage Loan. Immediately prior to
the transfer and assignment to the Purchaser on the Closing Date, the
Mortgage Loan, including the Mortgage Note and the Mortgage, were not
subject to an assignment or pledge, and the Seller had good and
marketable title to and was
III-3
the sole owner thereof and had full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien, pledge, charge, claim or security interest and has the full right
and authority subject to no interest or participation of, or agreement
with, any other party, to sell and assign the Mortgage Loan pursuant to
this Agreement and following the sale of the Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest.
The Seller intends to relinquish all rights to possess, control and
monitor the Mortgage Loan, except for the purposes of servicing the
Mortgage Loan as set forth in this Agreement;
(xiii) Each Mortgage Loan that is not a Co-op Loan is covered by an
ALTA lender's title insurance policy or other generally acceptable form
of policy or insurance acceptable to FNMA or FHLMC, issued by a title
insurer acceptable to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject
to (1) the lien of non-delinquent current real property taxes and
assessments not yet due and payable, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to or
otherwise considered in the appraisal made for the originator of the
Mortgage Loan, or (B) which do not adversely affect the appraised value
of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of
the related Mortgaged Property) the Seller, its successors and assigns,
as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan. Where required by state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. The Seller, its successors and
assigns, are the sole insureds of such lender's title insurance policy,
such title insurance policy has been duly and validly endorsed to the
Purchaser or the assignment to the Purchaser of the Seller's interest
therein does not require the consent of or notification to the insurer
and such lender's title insurance policy is in full force and effect and
will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the
related Mortgage, including the Seller, has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy;
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and
no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event permitting acceleration; and neither the
Seller nor any prior mortgagee has waived any default, breach, violation
or event permitting acceleration;
(xv) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to or equal to the
lien of the related Mortgage;
III-4
(xvi) All improvements subject to the Mortgage which were considered
in determining the appraised value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of the Mortgaged
Property (and wholly within the project with respect to a condominium
unit) except for de minimus encroachments permitted by the FNMA Guide and
which have been noted on the appraisal or the title policy affirmatively
insures against loss or damage by reason of any violation, variation or
encroachment adverse circumstances which is either disclosed or would
have been disclosed by an accurate survey, and no improvements on
adjoining properties encroach upon the Mortgaged Property except those
which are insured against by the title insurance policy referred to in
clause (xiii) above or are acceptable under FNMA or FHLMC guidelines and
all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(xvii) The Mortgage contains the usual and enforceable provisions
for the acceleration of the payment of the unpaid principal amount of the
Mortgage Loan if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
(xviii) The Mortgaged Property is not subject to any material damage
by waste, fire, earthquake, windstorm, flood or other casualty. At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. To the best of the Seller's knowledge, there have not been any
condemnation proceedings with respect to the Mortgaged Property and there
are no such proceedings scheduled to commence at a future date;
(xix) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of
the benefits of the security provided thereby. To the Seller's knowledge,
there is no homestead or other exemption available to the Mortgagor which
would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage;
(xx) If the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified if required under applicable law to act as
such, has been properly designated and currently so serves and is named
in the Mortgage, and no fees or expenses, except as may be required by
local law, are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee's sale or
attempted sale after default by the Mortgagor;
(xxi) The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the final approval of the mortgage
loan application by a Qualified Appraiser, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan;
(xxii) All parties which have had any interest in the Mortgage,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (A) in
compliance with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and (B)(1)
III-5
organized under the laws of such state, or (2) qualified to do business
in such state, or (3) federal savings and loan associations or national
banks or a Federal Home Loan Bank or savings bank having principal
offices in such state or otherwise exempt from such qualification or
licensing, or (4) not doing business in such state;
(xxiii) The Mortgage Loan does not contain "graduated payment"
features; to the extent any Mortgage Loan contains any buydown provision,
such buydown funds have been maintained and administered in accordance
with, and such Mortgage Loan otherwise complies with, FNMA/FHLMC
requirements relating to buydown loans;
(xxiv) The Mortgage Loans have an original term to maturity of not
more than 30 years, with interest payable in arrears on the first day of
each month. Each Mortgage Note requires a monthly payment which is
sufficient to fully amortize the original principal balance over the
original term thereof and to pay interest at the related Mortgage
Interest Rate;
(xxv) The assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(xxvi) As to Mortgage Loans that are not Co-op Loans and that are
not secured by an interest in a leasehold estate, the Mortgaged Property
is located in the state identified in Schedule IA and consists of a
single parcel of real property with a detached single family residence
erected thereon, or a townhouse, or a two-to four-family dwelling, or an
individual condominium unit in a condominium project, or an individual
unit in a planned unit development or a de minimis planned unit
development, or a non-warrantable condominium, or a manufactured home, if
such manufactured home meets the FNMA and FHLMC manufactured housing
guidelines, provided, however, that no residence or dwelling is a single
parcel of real property with a cooperative housing corporation erected
thereon, or a mobile home. As of the date of origination, no portion of
the Mortgaged Property was used for commercial purposes, and since the
date of origination, to the best of Seller's knowledge, no portion of the
Mortgaged Property has been used for commercial purposes, except for
incidental uses which are in accordance with FNMA or FHLMC guidelines;
(xxvii) Principal payments on the Mortgage Loan commenced no more
than sixty (60) days after the funds were disbursed in connection with
the Mortgage Loan. The Mortgage Note is payable on the first day of each
month in equal monthly installments of principal and interest, with
interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of
not more than thirty years from commencement of amortization;
(xxviii) Certain Mortgage Loans as specified on Schedule IA may
contain a Prepayment Penalty in an amount specified in the related
Mortgage Note or Mortgage.
(xxix) As of the date of origination of the Mortgage Loan, the
Mortgage Property was lawfully occupied under applicable law, and all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to
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certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities;
(xxx) If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development), or
stock in a cooperative housing corporation, such condominium, cooperative
or planned unit development project meets Seller's eligibility
requirements as set forth in Seller's underwriting guidelines;
(xxxi) To the best of Seller's knowledge, there is no pending action
or proceeding directly involving the Mortgaged Property in which
compliance with any environmental law, rule or regulation is an issue; to
the best of Seller's knowledge, there is no violation of any
environmental law, rule or regulation with respect to the Mortgaged
Property; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(xxxii) The Mortgagor has not notified the Seller, and the Seller
has no knowledge of any relief requested or allowed to the Mortgagor
under the Soldiers' and Sailors' Civil Relief Act of 1940;
(xxxiii) No Mortgage Loan was made in connection with the
construction or rehabilitation of a Mortgaged Property or facilitating
the trade-in or exchange of a Mortgaged Property unless (a) the Mortgage
Loan was identified as a construction-to-permanent mortgage loan on the
Mortgage Loan Schedule and (b) the Mortgage Loan has been fully
disbursed, all construction work is complete and a completion certificate
has been issued;
(xxxiv) No action has been taken or failed to be taken by Seller, on
or prior to the Closing Date which has resulted or will result in an
exclusion from, denial of, or defense to coverage under any Primary
Mortgage Insurance Policy (including, without limitation, any exclusions,
denials or defenses which would limit or reduce the availability of the
timely payment of the full amount of the loss otherwise due thereunder to
the insured) whether arising out of actions, representations, errors,
omissions, negligence, or fraud of the Seller, or for any other reason
under such coverage;
(xxxv) Each Mortgage Loan has been serviced in all material respects
in compliance with accepted servicing practices;
(xxxvi) With respect to each Co-op Loan, the related Mortgage is a
valid, enforceable and subsisting first security interest on the related
cooperative shares securing the related cooperative note, subject only to
(a) liens of the cooperative for unpaid assessments representing the
Mortgagor's pro rata share of the cooperative's payments for its blanket
mortgage, current and future real property taxes, insurance premiums,
maintenance fees and other assessments to which like collateral is
commonly subject and (b) other matters to which like collateral is
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by the Security Agreement. There are
no liens against or security interest in the cooperative shares relating
to each Co-op Loan (except for unpaid maintenance, assessments and other
amounts owed to the related cooperative which
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individually or in the aggregate will not have a material adverse effect
on such Co-op Loan), which have priority over the Seller's security
interest in such cooperative shares; and
(xxxvii) The Mortgage Loan was originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to sections 203
and 211 of the National Housing Act, a savings and loan association, a
savings bank, a commercial bank, credit union, insurance company or
similar institution which is supervised and examined by a federal or
state authority.
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B. Representations and Warranties of WMMSC, as Seller, with respect to
the WMMSC Loans.
Washington Mutual Mortgage Securities Corp. ("WMMSC"), as Seller with
respect to the WMMSC Loans hereby makes the representations and warranties set
forth in this Schedule IIIB to Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor") and Bank One, National Association (the "Trustee"),
except as otherwise expressly provided in this Schedule IIIB, as of the
Closing Date. Capitalized terms used but not otherwise defined in this
Schedule IIIB shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement dated as of the Cut-off Date (the "Agreement") among the
Depositor, DLJ Mortgage Capital, Inc. ("DLJMC"), as a seller (a "Seller"),
WMMSC, as a seller (in such capacity, a "Seller" and together with DLJMC in
its role as a Seller, the "Sellers") and as a servicer (in such capacity, a
"Servicer"), the Trustee, and Vesta Servicing, L.P., as a servicer (in such
capacity, a "Servicer" and together with WMMSC in its role as a Servicer, the
"Servicers") and special servicer (in such capacity, a "Special Servicer").
Each reference to a "Mortgage Loan" in this Schedule IIIB shall mean a WMMSC
Loan, and each reference to a "Mortgaged Property" shall mean a Mortgaged
Property related to a WMMSC Loan. Each reference to the "Seller" in this
Schedule IIIB shall mean WMMSC, in its capacity as seller, of the WMMSC Loans.
(i) The information set forth in Schedule IB with respect to the
WMMSC Loans was true and correct in all material respects at the
date or dates respecting which such information is furnished;
Each Mortgage is a valid and enforceable (subject to clause 0 below)
first lien on an unencumbered estate in fee simple or leasehold estate in
the related Mortgaged Property subject only to (a) liens for current real
property taxes and special assessments; (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording such Mortgage, such exceptions appearing of
record being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal obtained in connection with the
origination of the Mortgage Loan; (c) exceptions set forth in the title
insurance policy relating to such Mortgage, such exceptions being
acceptable to mortgage lending institutions generally; and (d) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by the Mortgage;
WMMSC had good title to, and was the sole owner of, each Mortgage Loan
free and clear of any encumbrance or lien, and immediately upon the
transfer and assignment herein contemplated, the Trustee shall have good
title to, and will be the sole legal owner of, each Mortgage Loan, free
and clear of any encumbrance or lien (other than any lien under the
Agreement);
As of the day prior to the Cut-off Date, all payments due on each
Mortgage Loan had been made and no Mortgage Loan had been delinquent
(i.e., was more than 30 days past due) more than once in the preceding 12
months and any such delinquency lasted for no more than 30 days;
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There is no late assessment for delinquent taxes outstanding against any
Mortgaged Property;
There is no offset, defense or counterclaim to any Mortgage Note,
including the obligation of the Mortgagor to pay the unpaid principal or
interest on such Mortgage Note;
Each Mortgaged Property is free of damage and in good repair, ordinary
wear and tear excepted;
Each Mortgage Loan at the time it was made complied with all applicable
state and federal laws, including, without limitation, usury, equal
credit opportunity, disclosure and recording laws;
Each Mortgage Loan was originated by a savings association, savings bank,
credit union, insurance company, or similar institution which is
supervised and examined by a federal or state authority or by a mortgagee
approved by the FHA and will be serviced by an institution which meets
the servicer eligibility requirements established by WMMSC;
Each Mortgage Loan is covered by an ALTA form or CLTA form of mortgagee
title insurance policy or other form of policy of insurance which, as of
the origination date of such Mortgage Loan, was acceptable to FNMA or
FHLMC, and has been issued by, and is the valid and binding obligation
of, a title insurer which, as of the origination date of such Mortgage
Loan, was acceptable to FNMA or FHLMC and qualified to do business in the
state in which the related Mortgaged Property is located. Such policy
insures the originator of the Mortgage Loan, its successors and assigns
as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan subject to the exceptions set forth in such
policy. Such policy is in full force and effect and will be in full force
and effect and inure to the benefit of the Certificateholders upon the
consummation of the transactions contemplated by the Agreement and no
claims have been made under such policy, and no prior holder of the
related Mortgage, including WMMSC, has done, by act or omission, anything
which would impair the coverage of such policy;
Each Mortgage Loan which had a Loan-to-Value Ratio as of the Closing Date
in excess of 80% was covered by a Primary Insurance Policy or an FHA
insurance policy or a VA guaranty, and such policy or guaranty is valid
and remains in full force and effect;
All policies of insurance required by the Agreement (except for the
Mortgage Loans specified in clause 0 above as not having Primary
Insurance Policies) have been validly issued and remain in full force and
effect, including such policies covering WMMSC;
Each insurer issuing a Primary Insurance Policy is a Qualified Insurer;
Each Mortgage was documented by appropriate FNMA/FHLMC mortgage
instruments in effect at the time of origination, or other instruments
approved by WMMSC;
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The Mortgaged Property securing each Mortgage is improved with a one- to
four-family dwelling unit, including units in a duplex, condominium
project, townhouse, a planned unit development or a de minimis planned
unit development;
Each Mortgage and Mortgage Note is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance with its
terms, except only as such enforcement may be limited by laws affecting
the enforcement of creditors' rights generally and principles of equity;
As of the date of origination, as to Mortgaged Properties which are units
in condominiums or planned unit developments, all of such units met FNMA
or FHLMC requirements, are located in a condominium or planned unit
development projects which have received FNMA or FHLMC approval, or are
approvable by FNMA or FHLMC;
Prior to origination or refinancing, an appraisal of each Mortgaged
Property was made by an appraiser on a form satisfactory to FNMA or
FHLMC;
The Mortgage Loans have been underwritten substantially in accordance
with the applicable underwriting standards of either WMMSC or the
originator of such Mortgage Loans, as applicable;
All of the Mortgage Loans have "due-on-sale" clauses; by the terms of the
Mortgage Notes, however, the due on sale provisions may not be exercised
at the time of a transfer if prohibited by law;
With respect to any Mortgage Loan as to which an affidavit has been
delivered to the Trustee certifying that the original Mortgage Note was
permanently lost or destroyed and has not been replaced, if such Mortgage
Loan is subsequently in default, the enforcement of such Mortgage Loan or
of the related Mortgage by or on behalf of the Trustee will not be
materially adversely affected by the absence of the original Mortgage
Note; and
Each Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1).
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SCHEDULE IV
TGIC Mortgage Loans
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