Exhibit 99.1
EXECUTION COPY
==============================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
DLJ MORTGAGE CAPITAL, INC.,
Seller,
CHASE MANHATTAN MORTGAGE CORPORATION,
Master Servicer
HOMESIDE LENDING, INC.,
Servicer,
VESTA SERVICING, L.P.,
Servicer and Special Servicer,
FIRST UNION NATIONAL BANK,
Trustee
and
JPMORGAN CHASE BANK,
Trust Administrator
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
relating to
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2001-AR24
==============================================================================
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund.............................................49
SECTION 2.02 Acceptance by the Trustee............................................52
SECTION 2.03 Representations and Warranties of the Seller and Servicers...........54
SECTION 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.......................................................56
SECTION 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions........................................................56
SECTION 2.06 Issuance of Certificates.............................................56
SECTION 2.07 REMIC Provisions.....................................................57
SECTION 2.08 Covenants of each Servicer...........................................61
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01 Servicers to Service Mortgage Loans..................................62
SECTION 3.02 Subservicing; Enforcement of the Obligations of Subservicers.........63
SECTION 3.03 Notification of Adjustments..........................................64
SECTION 3.04 Trustee to Act as Servicer...........................................64
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account..................................................65
SECTION 3.06 Establishment of and Deposits to Escrow Accounts; Permitted
Withdrawals from Escrow Accounts; Payments of Taxes,
Insurance and Other Charges..........................................68
SECTION 3.07 Access to Certain Documentation and Information Regarding
the Mortgage Loans; Inspections......................................70
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and
Certificate Account..................................................70
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment
Insurance and Mortgage Guaranty Insurance Policy; Claims;
Restoration of Mortgaged Property....................................71
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements............75
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans...............................................76
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TABLE OF CONTENTS
(Continued)
Page
SECTION 3.12 Trustee to Cooperate; Release of Mortgage Files......................80
SECTION 3.13 Documents, Records and Funds in Possession of a Servicer to
be Held for the Trustee..............................................81
SECTION 3.14 Servicing Fee........................................................81
SECTION 3.15 Access to Certain Documentation......................................81
SECTION 3.16 Annual Statement as to Compliance....................................82
SECTION 3.17 Annual Independent Public Accountants' Servicing Statement;
Financial Statements.................................................82
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions
Insurance............................................................83
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution...........................................85
SECTION 4.02 Allocation of Losses.................................................91
SECTION 4.03 Reserved.............................................................92
SECTION 4.04 Monthly Statements to Certificateholders.............................92
SECTION 4.05 Servicer to Cooperate................................................94
SECTION 4.06 Cross-Collateralization; Adjustments to Available Funds..............94
SECTION 4.07 Basis Risk Reserve Fund..............................................95
SECTION 4.08 Call Option..........................................................96
ARTICLE V
ADVANCES BY A SERVICER
SECTION 5.01 Advances by a Servicer...............................................98
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.....................................................99
SECTION 6.02 Registration of Transfer and Exchange of Certificates................99
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates...................104
SECTION 6.04 Persons Deemed Owners...............................................105
SECTION 6.05 Access to List of Certificateholders' Names and Addresses...........105
SECTION 6.06 Maintenance of Office or Agency.....................................105
SECTION 6.07 Book-Entry Certificates.............................................105
SECTION 6.08 Notices to Clearing Agency..........................................106
SECTION 6.09 Definitive Certificates.............................................106
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TABLE OF CONTENTS
(Continued)
Page
ARTICLE VII
THE DEPOSITOR, THE SELLER AND THE SERVICER
SECTION 7.01 Liabilities of the Seller, the Depositor and the Servicers..........108
SECTION 7.02 Merger or Consolidation of the Depositor, the Seller, or the
Servicers...........................................................108
SECTION 7.03 Limitation on Liability of the Depositor, the Seller, and
the Servicers and Others............................................109
SECTION 7.04 Servicer Not to Resign; Transfer of Servicing.......................109
SECTION 7.05 Seller and Servicers May Own Certificates...........................110
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default...................................................111
SECTION 8.02 Trustee to Act; Appointment of Successor............................112
SECTION 8.03 Notification to Certificateholders..................................113
SECTION 8.04 Waiver of Events of Default.........................................114
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee...................................................115
SECTION 9.02 Certain Matters Affecting the Trustee...............................116
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans...............118
SECTION 9.04 Trustee May Own Certificates........................................118
SECTION 9.05 Trustee's Fees and Expenses.........................................118
SECTION 9.06 Eligibility Requirements for Trustee................................118
SECTION 9.07 Resignation and Removal of Trustee..................................119
SECTION 9.08 Successor Trustee...................................................120
SECTION 9.09 Merger or Consolidation of Trustee..................................120
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee.......................120
SECTION 9.11 Office of the Trustee...............................................121
SECTION 9.12 Tax Return..........................................................122
SECTION 9.13 Periodic Filings....................................................122
SECTION 9.14 Determination of Certificate Index..................................122
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TABLE OF CONTENTS
(Continued)
Page
ARTICLE X
TERMINATION
SECTION 10.01 Termination upon Liquidation or Repurchase of all Mortgage
Loans...............................................................123
SECTION 10.02 Procedure Upon Optional Termination.................................124
SECTION 10.03 Additional Termination Requirements.................................125
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment...........................................................126
SECTION 11.02 Recordation of Agreement; Counterparts..............................127
SECTION 11.03 Governing Law.......................................................127
SECTION 11.04 Intention of Parties................................................127
SECTION 11.05 Notices.............................................................129
SECTION 11.06 Severability of Provisions..........................................129
SECTION 11.07 Limitation on Rights of Certificateholders..........................130
SECTION 11.08 Certificates Nonassessable and Fully Paid...........................130
SECTION 11.09 Protection of Assets................................................131
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TABLE OF CONTENTS
(Continued)
Page
EXHIBITS
Exhibit A: Form of Class A Certificate...................................................................A-1
Exhibit B: Form of Class M Certificate...................................................................B-1
Exhibit C: Form of Class C-B Certificate.................................................................C-1
Exhibit D: Form of Class AR Certificate..................................................................D-1
Exhibit E: Form of Class III-X Certificate...............................................................E-1
Exhibit F: Form of Class IV-X Certificate................................................................F-1
Exhibit G: Servicer Information..........................................................................G-1
Exhibit H: [Reserved]....................................................................................H-1
Exhibit I: Form of Initial Certification of Trustee......................................................I-1
Exhibit J: Form of Final Certification of Trustee........................................................J-1
Exhibit K: Form of Request for Release...................................................................K-1
Exhibit L: Form of Transferor Certificate................................................................L-1
Exhibit M-1: Form of Investment Letter...................................................................M-1-1
Exhibit M-2: Form of Rule 144A Letter....................................................................M-2-1
Exhibit N: Form of Investor Transfer Affidavit and Agreement.............................................N-1
Exhibit O: Form of Transfer Certificate..................................................................O-1
Exhibit P-1: Form of Escrow .............................................................................P-1-1
Exhibit P-2: Form of Escrow..............................................................................P-2-1
Exhibit Q-1: Form of Collection Account..................................................................Q-1-1
Exhibit Q-2: Form of Collection Account..................................................................Q-2-1
Exhibit R: Form of TGIC Policy...........................................................................R-1
SCHEDULES
Schedule I: Mortgage Loan Schedule........................................................................I-1
Schedule IIA: Representations and Warranties of DLJMC.....................................................IIA-1
Schedule IIB: Representations and Warranties of CMMC......................................................IIB-1
Schedule IIC: Representations and Warranties of HomeSide..................................................IIC-1
Schedule IID: Representations and Warranties of Vesta.....................................................IID-1
Schedule III: Representations and Warranties of DLJMC as to the Mortgage Loans............................III-1
Schedule IV: TGIC PMI Mortgage Loans......................................................................IV-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2001,
is hereby executed by and among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware corporation, as depositor (the "Depositor"), DLJ Mortgage
Capital, Inc. ("DLJMC"), a Delaware Corporation, in its capacity as a seller
(a "Seller"), CHASE MANHATTAN MORTGAGE CORPORATION ("CMMC"), a New Jersey
corporation, in its capacity as master servicer (the "Master Servicer"),
HOMESIDE LENDING, INC. ("HomeSide"), a Florida corporaiton, in its capacity as
a servicer (a "Servicer"), VESTA SERVICING, L.P. ("Vesta"), a Delaware limited
partnership, in its capacity as a servicer (a "Servicer"), fIRST UNION
NATIONAL BANK, a national banking association, as trustee (the "Trustee") and
JPMORGAN CHASE BANK, a New York banking corporation, as trust administrator
(the "Trust Administrator"). Capitalized terms used in this Agreement and not
otherwise defined will have the meanings assigned to them in Article I below.
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund for federal
income tax purposes will consist of four REMICs ("REMIC 1", "REMIC 2", "REMIC
3" and the " Master REMIC"). REMIC 1 will consist of all of the assets
constituting the Trust Fund corresponding to Loan Group I, Loan Group II and
Loan Group III and will be evidenced by the LTA-I-A Interest, LTA-I-AS
Interest, LTA-II-A Interest, LTA-II-AS Interest, LTA-III-A Interest,
LTA-III-AS1 Interest, and LTA-III-AS2 Interest (the "REMIC 1 Interests") which
will be uncertificated and will represent the "regular interests" in REMIC 1
and the R-1 Interest as the single "residual interest" in REMIC 1.
REMIC 2 will consist of the Loan Group IV Mortgage Loans and will be
evidenced by the LTB-IV-A Interest, LTB-IV-M-1 Interest, LTB-IV-M-2 Interest,
LTB-IV-B Interest, and LTB-Accrual Interest (LTB-IV-A Interest, LTB-IV-M-1
Interest, LTB-IV-M-2 Interest, and LTB-IV-B Interest, the "REMIC 2 Accretion
Directed Classes", together with LTB the LTB-Accrual Interest, the "Group IV
REMIC 2 Regular Interests") and the R-2 Interest as the single "residual
interest" in REMIC 2.
REMIC 3 will consist of all of the assets REMIC 2 Regular Interests
and will be evidenced by the IT-IV-A Interest, IT-IV-M-1 Interest, IT-IV-M-2
Interest, IT-IV-B Interest, and IT-IV-X (the "REMIC 3 Regular Interests")
which will be uncertificated and will represent the "regular interests" in
REMIC 3 and the R-3 Interest as the single "residual interest" in REMIC 3.
The Master REMIC will consist of the REMIC 1 and REMIC 3 Regular
Interests and will be evidenced by the Class I-A Interest, Class II-A
Interest, Class III-A Interest, Class IV-A Interest, Class III-X Interest,
Class IV-M-1 Interest, Class IV-M-2 Interest, Class IV-B Interest, Class C-B-1
Interest, Class C-B-2 Interest, Class C-B-3 Interest, Class C-B-4 Interest,
Class C-B-5 Interest, Class C-B-6 Interest, and Class IV-X (which will
represent the "regular interests" in the Master REMIC) and the R-4 Interest as
the single "residual interest" in the Master REMIC. The Class AR Certificates
will represent beneficial ownership of the R-1 Interest, R-2 Interest, R-3
Interest and the R-4 Interest. The "latest possible maturity date" for
1
federal income tax purposes of all interests created hereby will be the Latest
Possible Maturity Date.
REMIC 1:
The REMIC 1 Regular Interests, each of which is hereby designated a
REMIC regular interest for federal income tax purposes, shall have the
following principal balances, and pass-through rates of Certificates in the
manner set forth in the following table:
------------------------------ ------------------------------------ --------------------- --------------------
REMIC 1 Initial Pass Through Related Loan
Interests Balance Rate Group
--------- -------
------------------------------ ------------------------------------ --------------------- --------------------
LTA-I-A Loan Group I Mortgage Loan Weighted average I
Principal Balance Net Mortgage Rates
of the Group I
Mortgage Loans less
.05%
------------------------------ ------------------------------------ --------------------- --------------------
LTA-I-AS Notional balance equal to the .05% I
Group I Mortgage Loan Principal
Balance
------------------------------ ------------------------------------ --------------------- --------------------
LTA-II-A Loan Group II Mortgage Loan Weighted average II
Principal Balance Net Mortgage Rates
of the Group II
Mortgage Loans less
.05%
------------------------------ ------------------------------------ --------------------- --------------------
LTA-II-AS Notional balance equal to the .05% II
Group II Mortgage Loan
Principal Balance
------------------------------ ------------------------------------ --------------------- --------------------
LTA-III-A Loan Group III Mortgage Loan Weighted average III
Principal Balance Net Mortgage Rates
of the Group III
Mortgage Loans less
.33%
------------------------------ ------------------------------------ --------------------- --------------------
LTA-III-AS1 Notional balance equal to the .05% III
Group III Mortgage Loan
Principal Balance
------------------------------ ------------------------------------ --------------------- --------------------
LTA-III-AS2 Notional balance equal to the .28% III
Group III Mortgage Loan
Principal Balance
------------------------------ ------------------------------------ --------------------- --------------------
X-0 X/x X/x X/x
------------------------------ ------------------------------------ --------------------- --------------------
---------------
On each Distribution Date, each REMIC 1 Interest will have a
principal balance (or notional principal balance, as applicable) equal to that
of its Related Loan Group principal
2
balance, and receive all payments of principal, and Realized Losses from
received on the Related Loan Group.
REMIC 2:
The REMIC 2 Regular Interests, each of which is hereby designated a REMIC
regular interest for federal income tax purposes, shall have the following
principal balances, pass-through rates and Corresponding Classes of
Certificates in the manner set forth in the following table:
------------------------------ --------------------------------- ---------------------- ----------------------
Corresponding
REMIC Initial Class of REMIC
Interests Balance Pass Through Rate 3 Interest
--------- -------
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-IV-A 1/2 Corresponding REMIC 3 (1) IT-IV-A
Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-IV-M-1 1/2 Corresponding REMIC 3 (1) IT-IV-M-1
Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-IV-M-2 1/2 Corresponding REMIC 3 (1) IT-IV-M-2
Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-IV-B 1/2 Corresponding REMIC 3 (1) IT-IV-B
Class balance
------------------------------ --------------------------------- ---------------------- ----------------------
LTB-Accrual Interest 1/2 Mortgage Pool balance (1) N/a
plus 1/2
Overcollateralization Amount
on Closing Date
------------------------------ --------------------------------- ---------------------- ----------------------
X-0 X/x X/x X/x
------------------------------ --------------------------------- ---------------------- ----------------------
(1) A Rate equal to the Net Funds Cap.
On each Distribution Date, 50% of the increase in the
Overcollateralization Amount will be payable as a reduction of the principal
balances of the REMIC 2 Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralization
Amount that is attributable to a reduction in the principal balance of its
Corresponding Class) and will be accrued and added to the principal balance of
the LTB-Accrual Interest. All payments of scheduled principal and prepayments
of principal generated by the Mortgage Loans shall be allocated 50% to the
LTB-Accrual Interest, and 50% to the REMIC 2 Accretion Directed Classes
(principal payments shall be allocated among such REMIC 2 Accretion Directed
Classes in an amount equal to 50% of the principal amounts allocated to their
respective Corresponding Classes), until paid in full. In the event that: (i)
50% of the increase in the Overcollateralization Amount exceeds (ii) interest
accruals on the REMIC 2 Interest for such Distribution Date, the excess for
such Distribution Date (accumulated with all such excesses for all prior
Distribution Dates) will be added to any increase in the Overcollateralization
Amount for purposes of determining the amount of interest accrual on the REMIC
2 Interest payable as
3
principal on the REMIC 2 Accretion Directed Classes on the next Distribution
Date pursuant to the first sentence of this paragraph. Notwithstanding the
above, principal payments allocated to the Class IV-X Certificates that result
in the reduction in the Overcollateralization Amount shall be allocated to the
LTB-Accrual Interest (until paid in full). Realized losses shall be applied so
that after all distributions have been made on each Distribution Date the
principal balances of each of the REMIC 2 Accretion Directed Classes is equal
to 50% of the principal balance of their Corresponding Class, and the REMIC 2
Accrual Class is equal to 50% of the aggregate principal balance of the
Mortgage Pool plus 50% of the Overcollateralization Amount.
REMIC 3:
The following table sets forth characteristics of the REMIC 3
Interests, each of which, except for the Class R-3 Interest, is hereby
designated as a "regular interest" in REMIC 3:
------------------------- ------------------------- -------------------- ---------------------
Class Corresponding
Principal Pass-Through Master REMC
Balance Rate (per annum) Certificates
------------------------- ------------------------- -------------------- ---------------------
Class IT-IV-A 1/2 Corresponding Variable(1) Class IV-A
Master REMIC Class
balance
------------------------- ------------------------- -------------------- ---------------------
Class IT-IV-M-1 1/2 Corresponding Variable(2) Class IV-M-1
Master REMIC Class
balance
------------------------- ------------------------- -------------------- ---------------------
Class IT-IV-M-2 1/2 Corresponding Variable(3) Class IV-M-2
Master REMIC Class
balance
------------------------- ------------------------- -------------------- ---------------------
Class IT- IV-B 1/2 Corresponding Variable(4) Class IV-B
Master REMIC Class
balance
------------------------- ------------------------- -------------------- ---------------------
Class IT-IV-X (5) Variable(6) Class IV-X
------------------------- ------------------------- -------------------- ---------------------
Class X-0 X/x X/x X/x
------------------------- ------------------------- -------------------- ---------------------
---------------
(1) The Pass-Through Rate for the Class IT-IV-A Certificates shall be a
per annum rate equal to the lesser of (a) Certificate Index and the
applicable Certificate Margin of the Corresponding Master REMIC
Certificates for such Distribution Date and (b) the applicable Net
Funds Cap.
(2) The Pass-Through Rate for the Class IT-IV-M-1 Certificates shall be a
per annum rate equal to the lesser of (a) Certificate Index and the
applicable Certificate Margin of the Corresponding Master REMIC
Certificates for such Distribution Date and (b) the applicable Net
Funds Cap.
(3) The Pass-Through Rate for the Class IT-IV-M-2 Certificates shall be a
per annum rate equal to the lesser of (a) Certificate Index and the
applicable Certificate Margin of the Corresponding Master REMIC
Certificatesfor such Distribution Date and (b) the applicable Net
Funds Cap.
4
(4) The Pass-Through Rate for the Class IT-IV-B Certificates shall be a
per annum rate equal to the lesser of (a) Certificate Index and the
applicable Certificate Margin of the Corresponding Master REMIC
Certificatesfor such Distribution Date and (b) the applicable Net
Funds Cap.
(5) The Class IT-IV-X Certificates accrue interest on the the aggregate
Stated Principal Balances of the Mortgage Loans in Loan Group IV.
(6) The Pass-Through Rate of the Class IT-IV-X Certificates will be the
excess of (i) the Net Funds Cap over (ii) the product of (A) two and
(B) the weighted average Pass-Through Rate of the Group IV REMIC 2
Regular Interest with the REMIC 2 Accretion Directed Classes capped
at a rate equal the pass through rate on Corresponding Master Class
Certificate, and the Class IT-Accrual Interest equal to zero.
Master REMIC:
The following table sets forth characteristics of the Certificates,
each of which, except for the Class R-4 Interests, is hereby designated as a
"regular interest" in the Master REMIC, together with the minimum
denominations and integral multiples in excess thereof in which such Classes
shall be issuable (except that one Certificate of each Class of Certificates
may be issued in a different amount and, in addition, one Residual Certificate
representing the Tax Matters Person Certificate may be issued in a different
amount):
------------------------- ------------------------- -------------------- --------------------- --------------------
Integral
Class Multiples
Principal Pass-Through Minimum in Excess
Balance Rate (per annum) Denomination of Minimum
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-A $36,223,900.00 Variable(1) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class II-A $78,324,000.00 Variable(2) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class III-A $202,206,000.00 Variable(3) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class IV-A $167,110,000.00 Variable(4) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class AR (5) $100.00 Variable(6) (7) (7)
------------------------- ------------------------- -------------------- --------------------- --------------------
Class III-X (8) 0.353% $100,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class IV-M-1 $6,738,000.00 Variable(9) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class IV-M-2 $3,593,000.00 Variable(10) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class IV-B $2,247,629.29 Variable(11) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-1 $4,226,000.00 Variable(12) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-2 $1,625,000.00 Variable(12) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-3 $976,000.00 Variable(12) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-4 $487,000.00 Variable(12) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-5 $325,000.00 Variable(12) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class C-B-6 $650,996.62 Variable(12) $25,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
Class IV-X (13) Variable(14) $100,000 $1
------------------------- ------------------------- -------------------- --------------------- --------------------
---------------
(1) The initial Pass-Through Rate for the Class I-A Certificates is
6.397% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class I-A Certificates shall be a
5
per annum rate equal to the weighted average Net Mortgage Rates of
the Mortgage Loans in Loan Group I as of the second preceding Due
Date.
(2) The initial Pass-Through Rate for the Class II-A Certificates is
6.205% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class II-A Certificates shall be a per annum rate equal
to the weighted average Net Mortgage Rates of the Mortgage Loans in
Loan Group II as of the second preceding Due Date.
(3) The initial Pass-Through Rate for the Class III-A Certificates is
6.170% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class III-A Certificates shall be a per annum rate equal
to the weighted average Net Mortgage Rates of the Mortgage Loans in
Loan Group III as of the second preceding Due Date less 0.403%.
(4) The initial Pass-Through Rate for the Class IV-A Certificates is
2.530% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-A Certificates shall be a per annum rate equal
to the lesser of (a) Certificate Index and the applicable Certificate
Margin for such Distribution Date and (b) the applicable Net Funds
Cap.
(5) The Class AR will represent 4 REMIC residual interests - the R-1
Interests (which is the residual interest of REMIC 1), the R-2
Interests (which is the residual interest of REMIC 2), the R-3
Interests (which is the residual interest of REMIC 3), and the R-4
Interests (which is the residual interest of REMIC 4).
(6) The initial Pass-Through Rate for the Class AR Certificates is 6.397%
per annum. After the first Distribution Date, the Pass-Through Rate
for the Class AR Certificates shall be a per annum rate equal to the
weighted average Net Mortgage Rates of the Mortgage Loans in Loan
Group I as of the second preceding Due Date.
(7) The Class AR Certificates are issued in minimum Percentage Interests
of 20%.
(8) The Class III-X Certificates accrue interest on the related Class
Notional Amount.
(9) The initial Pass-Through Rate for the Class IV-M-1 Certificates is
3.230% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-M-1 Certificates shall be a per annum rate
equal to the lesser of (a) Certificate Index and the applicable
Certificate Margin for such Distribution Date and (b) the applicable
Net Funds Cap.
(10) The initial Pass-Through Rate for the Class IV-M-2 Certificates is
3.980% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-M-2 Certificates shall be a per annum rate
equal to the lesser of (a) Certificate Index and the applicable
Certificate Margin for such Distribution Date and (b) the applicable
Net Funds Cap.
(11) The initial Pass-Through Rate for the Class IV-B Certificates is
4.880% per annum. After the first Distribution Date, the Pass-Through
Rate for the Class IV-B Certificates shall be a per annum rate equal
to the lesser of (a) Certificate Index and the applicable Certificate
Margin for such Distribution Date and (b) the applicable Net Funds
Cap.
(12) The initial Pass-Through Rate for each of the Class C-B-1, Class
C-B-2, Class C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6
Certificates is 6.430% per annum. After the first Distribution Date,
the Pass-Through Rate for each of the Class C-B-1, Class C-B-2, Class
C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6 Certificates shall be
a per annum rate equal to: the quotient, expressed as a percentage of
(a) the sum of (i) the product of (x) the Net WAC Rate of Loan Group
I for that Distribution Date and (y) the Subordinate Component
Balance for Loan Group I immediately prior to such Distribution Date,
(ii) the Net WAC Rate of Loan Group II for that Distribution Date and
(y) the Subordinate Component Balance for Loan Group II immediately
prior to such Distribution Date, and (iii) the product of the Net WAC
Rate of Loan Group III for such Distribution Date and
6
(y) the Subordinate Component Balance for Loan Group III immediately
prior to such Distribution Date, divided by (b) the aggregate of the
Subordinate Component Balances for Loan Group I, Loan Group II and
Loan Group III immediately prior to such Distribution Date.
(13) The Class IV-X Certificates accrue interest on the related Class
Notional Amount.
(14) The Pass-Through Rate of the Class IV-X Certificates will be the
excess of (i) the Net Funds Cap over (ii) the product of (A) two and
(B) the weighted average Pass-Through Rate of the Group IV REMIC 2
Regular Interest with the REMIC 2 Accretion Directed Classes capped
at a rate equal the pass through rate on Corresponding Master Class
Certificate, and the Class LTB-Accrual Interest equal to zero. Until
the required amount of overcollateralization exists, amounts accruing
with respect to the Class IV-X Certificates will be distributed as a
principal payments to the Class IV-A and IV-M-1 Certificates and will
be paid to the Class IV-X Certificates (without interest) when
principal payments received from the Group IV Mortgage Loans are
allowed to reduce overcollateralization.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates.......................... All Classes of Certificates other than the Physical
Certificates.
Class A Certificates:............................ The Class I-A, Class II-A, Class III-A, Class IV-A and
Class AR Certificates.
Class B Certificates............................. The Class C-B-1, Class C-B-2, Class C-B-3, Class C-B-4,
Class C-B-5, Class C-B-6 and Class IV-B Certificates.
Class M Certificates............................. The Class IV-M-1 and Class IV-M-2 Certificates.
ERISA-Restricted Certificates................... Residual Certificates; Private Certificates; and any
Certificates that do not satisfy the applicable ratings
requirement under the Underwriter's Exemption.
Group I Certificates: ......................... The Class I-A and Class AR Certificates.
Group II Certificates: .......................... The Class II-A Certificates.
Group III Certificates: ........................ The Class III-A Certificates.
Group IV Certificates: .......................... The Class IV-A, Class IV-M-1, Class IV-M-2 and Class
IV-B Certificates.
7
Group C-B Certificates........................... The Class C-B-1, Class C-B-2, Class C-B-3, Class C-B-4,
Class C-B-5 and Class C-B-6 Certificates.
Notional Amount Certificates..................... The Class III-X and Class IV-X Certificates.
LIBOR Certificates:.............................. The Class IV-A, Class IV-M-1, Class IV-M-2 and Class
IV-B Certificates.
Offered Certificates............................. All Classes of Certificates other than the Private
Certificates.
Private Certificates............................. The Class C-B-4, Class C-B-5, Class C-B-6 and Class IV-X
Certificates.
Physical Certificates............................ The Class AR and the Private Certificates.
Rating Agencies.................................. Xxxxx'x and S&P.
Regular Certificates............................. All Classes of Certificates other than the Class AR
Certificates.
Residual Certificates............................ The Class AR Certificates.
Senior Certificates.............................. The Class A and Class III-X Certificates.
Subordinate Certificates......................... The Class M, Class B and Class IV-X Certificates.
All covenants and agreements made by the Depositor herein are for
the benefit and security of the Certificateholders. The Depositor is entering
into this Agreement, and the Trustee is accepting the trusts created hereby
and thereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged. The principal balance of the Mortgage Loans
as of the Cut-off Date is $504,732,625.92.
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 Seller, the Master Servicer, the Servicers, the Special
Servicer, the Trustee and the Trust Administrator agree as follows:
9
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Accrual Period: For any interest bearing Class of Certificates other
than the LIBOR Certificates and any Distribution Date, the calendar month
immediately preceding the related Distribution Date, and with respect to the
LIBOR Certificates, the period beginning on the immediately preceding
Distribution Date (or the Closing Date, in the case of the first Accrual
Period) and ending on the day immediately preceding 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 or the Master
Servicer, as applicable, with respect to any Distribution Date pursuant to
Section 5.01.
Adverse REMIC Event: As defined in Section 2.07(f).
Adjustment Date: With respect to each Mortgage Loan, each adjustment
date on which the Mortgage Rate thereon changes pursuant to the related
Mortgage Note. The first Adjustment Date following the Cut-off Date as to each
such Mortgage Loan is set forth in the Mortgage Loan Schedule.
Aggregate Loan Balance: As of any date of determination will be
equal to the aggregate of the Stated Principal Balances of the Mortgage Loans
as of the last day of the prior month.
Aggregate Loan Group Balance: As to any Loan Group and as of any
date of determination will be equal to the aggregate of the Stated Principal
Balances of the Mortgage Loans in that Loan Group as of the last day of the
prior month.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans, other
than Servicing Fees and Master Servicing Fees, including but not limited to,
late charges, Prepayment Penalties, prepayment fees, fees received with
respect to checks or bank drafts returned by the
10
related bank for non-sufficient funds, assumption fees, optional insurance
administrative fees and all other incidental fees and charges.
Applied Loss Amount: As to any Distribution Date, with respect to
the Group IV Certificates, the excess, if any, of (i) the aggregate Class
Principal Balances of the Group IV Certificates (other than the related
Notional Amount Certificates), after giving effect to all Realized Losses with
respect to the Mortgage Loans in Loan Group IV during the Collection Period
for such Distribution Date and payments of principal on such Distribution Date
over (ii) the Aggregate Loan Group Balance for Loan Group IV for such
Distribution Date.
Appraised Value: The appraised value of the Mortgaged Property based
upon the appraisal made for the originator at the time of the origination of
the related Mortgage Loan or the sales price of the Mortgaged Property at the
time of such origination, whichever is less, or with respect to any Mortgage
Loan that represents a refinancing, the lower of the appraised value at
origination or the appraised value of the Mortgaged Property based upon the
appraisal made at the time of such refinancing.
Assignment and Assumption Agreement: That certain assignment and
assumption agreement dated as of 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, Group II and Group III, the sum of: (i) all amounts in
respect of Scheduled Payments (net of the related Expense Fees) due on the Due
Date in the month in which such Distribution Date occurs and received prior to
the related Determination Date on the related Mortgage Loans, together with
any Advances in respect thereof; (ii) all Insurance Proceeds (to the extent
not applied to the restoration of the Mortgaged Property or released to the
Mortgagor in accordance with the applicable Servicer's Accepted Servicing
Standards) and all Liquidation Proceeds received during the calendar month
preceding the month of that Distribution Date on the related Mortgage Loans,
in each case net of unreimbursed Liquidation Expenses incurred with respect to
such Mortgage Loans; (iii) all Principal Prepayments received during the
related Prepayment Period on the related Mortgage Loans, excluding prepayment
penalties and premiums; (iv) amounts received with respect to such
Distribution Date as the Substitution Adjustment Amount or purchase price in
respect of a Mortgage Loan in the related Loan Group repurchased by the Seller
or a Servicer as of such Distribution Date, in the case of clauses (i) through
(iv) above reduced by amounts in reimbursement for Monthly Advances previously
made and other amounts as to which a Servicer or the Master Servicer is
entitled to be reimbursed pursuant to Section 3.08 in respect of the related
Mortgage Loans or otherwise, and (v) any amounts payable as Compensating
Interest by a Servicer or the Master Servicer with respect to the related
Mortgage Loans on such Distribution Date.
Bankruptcy Code: The United States Bankruptcy Code, as amended from
time to time (11 U.S.C. Sections 101 et seq.).
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
11
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, the Group II Certificates and the Group
III Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trust Administrator to the effect that any such reduction will
not result in a downgrading, or otherwise adversely affect, of the then
current ratings assigned to such Classes of Certificates rated by it.
Basis Risk Reserve Fund: The separate Eligible Account created and
initially maintained by the Trust Administrator pursuant to Section 4.07 in
the name of the Trust Administrator, as agent for the Trustee, for the benefit
of the Certificateholders and designated "First Union National Bank in trust
for registered holders of Credit Suisse First Boston Mortgage Securities Corp.
Mortgage Pass-Through Certificates, Series 2001-AR24." Funds in the Basis Risk
Reserve Fund shall be held in trust for the Certificateholders for the uses
and purposes set forth in this Agreement.
Basis Risk Shortfall: For any Class of LIBOR Certificates and any
Distribution Date, the sum of (i) the excess, if any, of the related Current
Interest calculated on the basis of the lesser of (x) the Certificate Index
plus the applicable Certificate Margin and (y) the Maximum Interest Rate over
the related Current Interest for the applicable Distribution Date; (ii) any
Basis Risk Shortfall remaining unpaid from prior Distribution Dates; and (iii)
30 days interest on the amount in clause (ii) calculated at a per annum rate
equal to the lesser of (x) the Certificate Index plus the applicable
Certificate Margin and (y) the Maximum Interest Rate.
Beneficial Holder: A Person holding a beneficial interest in any
Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate.
Book-Entry Certificates: As specified in the Preliminary Statement.
Book-Entry Form: Any Certificate held through the facilities of the
Depository.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in New York or the state in which the
office of the Master Servicer or any Servicer or the Corporate Trust Office of
the Trustee or Trust Administrator are located are authorized or obligated by
law or executive order to be closed.
Carryforward Interest: For any Class of Offered Certificates and
Distribution Date, the sum of (1) the amount, if any, by which (x) the sum of
(A) Current Interest for such Class for the immediately preceding Distribution
Date and (B) any unpaid Carryforward Interest for such Class from previous
Distribution Dates exceeds (y) the amount paid in respect of interest on such
Class on such immediately preceding Distribution Date, and (2) interest on
such amount for the related Accrual Period at the applicable Pass-Through
Rate.
12
Cash Remittance Date: With respect to any Distribution Date and the
Master Servicer, Vesta and Homeside, the 7th calendar day preceding such
Distribution Date, or if such 7th calendar day is not a Business Day, the
Business Day immediately preceding such 7th calendar day.
Certificate: Any Certificates executed and authenticated by the
Trust Administrator on behalf of the Trustee for the benefit of the
Certificateholders in substantially the form or forms attached as Exhibits A
through F hereto.
Certificate Account: The separate Eligible Account created and
maintained with the Trust Administrator, or any other bank or trust company
acceptable to the Rating Agencies which is incorporated under the laws of the
United States or any state thereof pursuant to Section 3.05, which account
shall bear a designation clearly indicating that the funds deposited therein
are held in trust for the benefit of the Trust Administrator, as agent for the
Trustee, on behalf of the Certificateholders or any other account serving a
similar function acceptable to the Rating Agencies. Funds in the Certificate
Account may (i) be held uninvested without liability for interest or
compensation thereon or (ii) be invested at the direction of the Trust
Administrator in Eligible Investments and reinvestment earnings thereon (net
of investment losses) shall be paid to the Trust Administrator. Funds
deposited in the Certificate Account (exclusive of the amounts permitted to be
withdrawn pursuant to Section 3.08(b)) shall be held in trust for the
Certificateholders.
Certificate Balance: With respect to any Certificate at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof minus
all distributions of principal and allocations of Realized Losses, including
Excess Losses or Applied Loss Amounts, as applicable, previously made or
allocated with respect thereto and, in the case of any Subordinate
Certificates, reduced by any Applied Loss Amounts allocated to such Class on
prior Distribution Dates pursuant to Section 4.02.
Certificate Group: Any of Certificate Group I, Certificate Group II,
Certificate Group III or Certificate Group IV, as applicable.
Certificate Group I: Any of the Certificates with a Class
designation beginning with "I" and relating to Loan Group I.
Certificate Group II: Any of the Certificates with a Class
designation beginning with "II" and relating to Loan Group II.
Certificate Group III: Any of the Certificates with a Class
designation beginning with "III" and relating to Loan Group III.
Certificate Group IV: Any of the Certificates with a Class
designation beginning with "IV" and relating to Loan Group IV.
Certificate Group C-B: Any of the Certificates with a Class
designation beginning with "C-B" and relating to Loan Group I, Loan Group II
and Loan Group III.
13
Certificate Index: With respect to each Distribution Date and the
LIBOR Certificates, the rate for one month United States dollar deposits
quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the related
Interest Determination Date relating to each Class of LIBOR Certificates. If
such rate does not appear on such page (or such other page as may replace that
page on that service, or if such service is no longer offered, such other
service for displaying LIBOR or comparable rates as may be reasonably selected
by the Trust Administrator after consultation with DLJMC), the rate will be
the Reference Bank Rate. If no such quotations can be obtained and no
Reference Bank Rate is available, the Certificate Index will be the
Certificate Index applicable to the preceding Distribution Date. On the
Interest Determination Date immediately preceding each Distribution Date, the
Trust Administrator shall determine the Certificate Index for the Accrual
Period commencing on such Distribution Date and inform the Master Servicer and
each Servicer of such rate.
Certificate Margin: As to each Class of LIBOR Certificates, the
applicable amount set forth below:
Class Certificate Margin
(1) (2)
IV-A 0.45% 0.90%
IV-M-1 1.15% 1.65%
IV-M-2 1.90% 2.40%
IV-B 2.80% 3.30%
-----------
(1) Prior to the Optional Termination Date.
(2) After the Optional Termination Date.
Certificate Register: The register maintained pursuant to Section
6.02(a) hereof.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary Statement.
Class B Certificates: As specified in the Preliminary Statement.
Class III-X Notional Amount: With respect to any Distribution Date
and the Class III-X Certificates, an amount equal to the Class Principal
Balance of the Class III-A Certificates, immediately prior to that
Distribution Date.
Class Interest Shortfall: As to any Distribution Date and Class of
Group I Certificates, Group II Certificates and Group III 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.
14
Class IV-B Principal Payment Amount: For any Distribution Date on or
after the Step-down Date and as long as a Trigger Event has not occurred with
respect to such Distribution Date, will be the amount, if any, by which (x)
the sum of (i) the Class Principal Balance of the Class IV-A Certificates and
the aggregate Class Principal Balances of the Class IV-M-1 and Class IV-M-2
Certificates, in each case, after giving effect to payments on such
Distribution Date and (ii) the Class Principal Balance of the Class IV-B
Certificates immediately prior to such Distribution Date exceeds (y) the
lesser of (A) the product of (i) 99.00% and (ii) the Aggregate Loan Group
Balance of Loan Group IV for such Distribution Date and (B) the amount, if
any, by which (i) the Aggregate Loan Group Balance of Loan Group IV for such
Distribution Date exceeds (ii) 0.50% of the Aggregate Loan Group Balance of
Loan Group IV as of the Cut-off Date.
Class IV-M-1 Principal Payment Amount: For any Distribution Date on
or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the Class Principal Balance of the Class IV-A Certificates,
after giving effect to payments on such Distribution Date and (ii) the Class
Principal Balance of the Class IV-M-1 Certificates immediately prior to such
Distribution Date exceeds (y) the lesser of (A) the product of (i) 92.50% and
(ii) the Aggregate Loan Group Balance for Loan Group IV for such Distribution
Date and (B) the amount, if any, by which (i) the Aggregate Loan Group Balance
for Loan Group IV for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Loan Group Balance for Loan Group IV as of the Cut-off Date.
Class IV-M-2 Principal Payment Amount: For any Distribution Date on
or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the sum of (i) the Class Principal Balance of the Class IV-A Certificates
and the Class Principal Balance of the Class IV-M-1 Certificates, in each
case, after giving effect to payments on such Distribution Date and (ii) the
Class Principal Balance of the Class IV-M-2 Certificates immediately prior to
such Distribution Date exceeds (y) the lesser of (A) the product of (i) 96.50%
and (ii) the Aggregate Loan Group Balance for Loan Group IV for such
Distribution Date and (B) the amount, if any, by which (i) the Aggregate Loan
Group Balance for Loan Group IV for such Distribution Date exceeds (ii) 0.50%
of the Aggregate Loan Group Balance for Loan Group IV as of the Cut-off Date.
Class IV-X Distributable Amount: With respect to any Distribution
Date and the Class IV-X Certificates, the sum of (i) the amount of interest
accrued during the related Accrual Period at the related Pass-Through Rate on
the Class Notional Amount for such Distribution Date and (ii) the
Overcollateralization Release Amount, if any, for such Distribution Date.
Class IV-X Notional Amount: With respect to any Distribution Date
and the Class IV-X Certificates, an amount equal to the aggregate Stated
Principal Balances of the Mortgage Loans in Loan Group IV as of the first day
of the related Collection Period.
Class Notional Amount: Either of the Class III-X Notional Amount or
the Class IV-X Notional Amount, as applicable.
15
Class Principal Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest-bearing Group I Certificates, Group II Certificates and Group III
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 the
Master Servicer or a Servicer in accordance with Section 3.05.
Collection Period: With respect to each Distribution Date, the
period commencing on the second day of the month preceding the month of the
Distribution Date and ending on the first day of the month of the Distribution
Date.
Compensating Interest Payment: For any Distribution Date and the
HomeSide Serviced Loans, the lesser of (i) 50% of the aggregate Servicing Fee
payable to HomeSide in respect of the HomeSide Serviced Loans for such
Distribution Date and (ii) the aggregate Prepayment Interest Shortfall with
respect to the HomeSide Serviced Loans. For any Distribution Date and the
Vesta Serviced Loans, the lesser of (i) 50% of the aggregate Servicing Fee
payable to Vesta in respect of the Vesta Serviced Loans for such Distribution
Date and (ii) the aggregate Prepayment Interest Shortfall with respect to the
Vesta Serviced Loans. For any Distribution Date and the Master Serviced Loans,
the lesser of (i) one twelfth (1/12) of 0.25% of the aggregate Stated
Principal Balance of the Master Serviced Loans, as of the Due Date in the
month of such Distribution Date, and (ii) the aggregate Prepayment Interest
Shortfall with respect to the Master Serviced Loans.
Corporate Trust Office: With respect to the Trustee, the designated
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxx Xxxxx Xx.
XX-0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Corporate Trust
Administration. With respect to the Trust Administrator, the designated office
of the Trust Administrator at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured Finance
Services, CSFB 2001-AR24, except for purposes of Section 6.06, such term shall
mean the office or agency of the Trust Administrator located at 00 Xxxxx
Xxxxxx, 000 Xxxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
16
Corresponding Classes of Certificates: With respect to each
Subsidiary REMIC Regular Interest, any Class of Certificates appearing
opposite such Subsidiary REMIC Regular Interest in the Preliminary Statement.
Credit Support Depletion Date: The first Distribution Date on which
the aggregate Class Principal Balances of the Class C-B Certificates has been
or will be reduced to zero.
Current Interest: For any Class of Group IV Certificates and
Distribution Date, the amount of interest accruing at the applicable
Pass-Through Rate on the related Class Principal Balance or Class Notional
Amount, as applicable, of such Class during the related Accrual Period;
provided, that as to each Class of Group IV Certificates the Current Interest
shall be reduced by a pro rata portion of any Interest Shortfalls to the
extent not covered by Excess Interest.
Curtailment: Any payment of principal on a Mortgage Loan, made by or
on behalf of the related Mortgagor, other than a Scheduled Payment, a prepaid
Scheduled Payment or a Payoff, which is applied to reduce the outstanding
Stated Principal Balance of the Mortgage Loan.
Custodial Agreement: An agreement, dated as of the date hereof,
among a custodian, the Trustee and the Trust Administrator, pursuant to which
the Trustee appoints such custodian to hold any of the documents or
instruments referred to in Section 2.01 of this Agreement as agent for the
Trustee.
Custodian: A custodian which is appointed pursuant to a Custodial
Agreement. Any Custodian so appointed shall act as agent on behalf of the
Trustee, and shall be compensated by the Trust Administrator or as otherwise
specified therein. The Trustee shall remain at all times responsible under the
terms of this Agreement, notwithstanding the fact that certain duties have
been assigned to a Custodian.
Cut-off Date: November 1, 2001.
Cut-off Date Pool Principal Balance: $504,732,625.92.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Data Remittance Date: With respect to any Distribution Date, the
10th calendar day of the month in which such Distribution Date occurs, or if
such 10th day is not a Business Day, the Business Day immediately following
such 10th day.
Debt Service Reduction: With respect to a Mortgage Loan in Loan
Group I, Loan Group II or Loan Group III, 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.
17
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Deficient Valuation: With respect to any Mortgage Loan in Loan Group
I, Loan Group II or Loan Group III, a valuation by a court of competent
jurisdiction of the Mortgaged Property in an amount less than the then
outstanding indebtedness under the Mortgage Loan, or that results in a
permanent forgiveness of principal, which valuation in either case results
from a proceeding under the Bankruptcy Code.
Deferred Amount: For any Class of Group IV Subordinate Certificates
(other than the Class IV-X Certificates) and Distribution Date, will equal the
amount by which (x) the aggregate of the Applied Loss Amounts previously
applied in reduction of the Class Principal Balance thereof exceeds (y) the
aggregate of amounts previously paid in reimbursement thereof.
Definitive Certificate: As defined in Section 6.07.
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Rate: With respect to any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the aggregate
outstanding principal balance of all Mortgage Loans in Loan Group IV 60 or
more days delinquent (including all foreclosures, bankruptcies and REO
Properties) as of the close of business on the last day of such month, and the
denominator of which is the Aggregate Loan Group Balance of Loan Group IV as
of the close of business on the last day of such month.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate"
or the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Depositor: Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
Depository Agreement: The Letter of Representation dated as of the
Closing Date by and among DTC, the Depositor and the Trust Administrator for
the benefit of the Trustee.
Determination Date: With respect to each Distribution Date, the 10th
day of the calendar month in which such Distribution Date occurs or, if such
10th day is not a Business Day, the Business Day immediately succeeding such
Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
18
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trust Administrator based upon an Opinion of Counsel that
the holding of an Ownership Interest in a Class AR Certificate by such Person
may cause the REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the
Transfer of an Ownership Interest in a Class AR Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
Distribution Date: The 25th day of any month, or if such 25th day is
not a Business Day, the Business Day immediately following such 25th day,
commencing on December 26, 2001.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation, and its
successors and assigns.
DTC: The Depository Trust Company.
Due Date: With respect to each Mortgage Loan and any Distribution
Date, the date on which Scheduled Payments on such Mortgage Loan are due which
is either the first day of the month of such Distribution Date, or if
Scheduled Payments on such Mortgage Loan are due on a day other than the first
day of the month, the date in the calendar month immediately preceding the
Distribution Date on which such Scheduled Payments are due, exclusive of any
days of grace.
Eligible Account: Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company
acceptable to the Rating Agencies or (ii) an account or accounts the deposits
in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be
maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short term debt obligations of
such holding company) have been rated by each Rating Agency in its highest
short-term rating category, or (iii) a segregated trust account or accounts
(which shall be a "special deposit account") maintained with the Trustee, the
Trust Administrator or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Trustee, the Trust Administrator and the Rating Agencies.
Eligible Accounts may bear interest.
Eligible Institution: An institution having the highest short-term
debt rating, and one of the two highest long-term debt ratings of the Rating
Agencies or the approval of the Rating Agencies.
19
Eligible Investments: Any one or more of the obligations and
securities listed below:
1. direct obligations of, and obligations fully guaranteed by, the
United States of America, or any agency or instrumentality of the
United States of America the obligations of which are backed by the
full faith and credit of the United States of America; or
obligations fully guaranteed by, the United States of America; the
FHLMC, FNMA, the Federal Home Loan Banks or any agency or
instrumentality of the United States of America rated AA (or the
equivalent) or higher by the Rating Agencies;
2. federal funds, demand and time deposits in, certificates of deposits
of, or bankers' acceptances issued by, any depository institution or
trust company incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision
and examination by federal and/or state banking authorities, so long
as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt obligations of such
holding company) are rated in one of two of the highest ratings by
each of the Rating Agencies, and the long-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the long-term debt obligations of
such holding company) are rated in one of two of the highest
ratings, by each of the Rating Agencies;
3. repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered
into with a depository institution or trust company (acting as a
principal) rated A or higher by the Rating Agencies; provided,
however, that collateral transferred pursuant to such repurchase
obligation must be of the type described in clause (i) above and
must (A) be valued daily at current market price plus accrued
interest, (B) pursuant to such valuation, be equal, at all times, to
105% of the cash transferred by the Trustee or the Trust
Administrator in exchange for such collateral, and (C) be delivered
to the Trustee or the Trust Administrator or, if the Trustee or the
Trust Administrator, as applicable, is supplying the collateral, an
agent for the Trustee or the Trust Administrator, in such a manner
as to accomplish perfection of a security interest in the collateral
by possession of certificated securities;
4. securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of
America or any state thereof which has a long-term unsecured debt
rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
20
5. commercial paper having an original maturity of less than 365 days
and issued by an institution having a short-term unsecured debt
rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
6. a guaranteed investment contract approved by each of the Rating
Agencies and issued by an insurance company or other corporation
having a long-term unsecured debt rating in the highest available
rating category of each of the Rating Agencies at the time of such
investment;
7. money market funds (which may be 12b-1 funds as contemplated under
the rules promulgated by the Securities and Exchange Commission
under the Investment Company Act of 1940) having ratings in the
highest available rating category of Xxxxx'x and one of the two
highest available rating categories of S&P at the time of such
investment (any such money market funds which provide for demand
withdrawals being conclusively deemed to satisfy any maturity
requirements for Eligible Investments set forth herein) including
money market funds of the Master Servicer, a Servicer, the Trustee
or the Trust Administrator and any such funds that are managed by
the Master Servicer, a Servicer, the Trustee or the Trust
Administrator or their respective Affiliates or for the Master
Servicer, a Servicer, the Trustee or the Trust Administrator or any
Affiliate of such Person acts as advisor, as long as such money
market funds satisfy the criteria of this subparagraph (vii); and
8. such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies, result in
the downgrading or withdrawal of the Ratings of the Certificates.
provided, however, that no such instrument shall be an Eligible
Investment if such instrument evidences either (i) a right to receive only
interest payments with respect to the obligations underlying such instrument,
or (ii) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of greater than 120% of
the yield to maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements (without regard
to the ratings requirements) of an Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The separate account or accounts created and
maintained by the Master Servicer or a Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, mortgage insurance premiums, fire and hazard
insurance premiums, and any
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other payments required to be escrowed by the Mortgagor with the mortgagee
pursuant to the Mortgage, applicable law or any other related document.
Event of Default: As defined in Section 8.01 hereof.
Excess Loss: The amount of any (i) Fraud Loss on a Mortgage Loan in
Loan Group I, Loan Group II or Loan Group III realized after the Fraud Loss
Coverage Termination Date, (ii) Special Hazard Loss on a Mortgage Loan in Loan
Group I, Loan Group II or Loan Group III realized after the Special Hazard
Coverage Termination Date or (iii) Bankruptcy Loss on a Mortgage Loan in Loan
Group I, Loan Group II or Loan Group III realized after the Bankruptcy
Coverage Termination Date.
Expense Fee Rate: As to each Mortgage Loan, the sum of the Master
Servicing Fee, the related Servicing Fee Rate, any primary mortgage guaranty
insurance fee rate and the TGIC PMI Fee Rate, if applicable.
Expense Fees: As to each Mortgage Loan, the sum of the Master
Servicing Fee, the related Servicing Fee, any primary mortgage guaranty
insurance premium and the TGIC PMI Fee, as applicable.
Extraordinary Events: Any of the following conditions with respect
to a Mortgaged Property or Mortgage Loan in Loan Group I, Loan Group II or
Loan Group III causing or resulting in a loss which causes the liquidation of
such Mortgage Loan: (a) losses that are of the type that would be covered by
the fidelity bond and the errors and omissions insurance policy required to be
maintained pursuant to Section 3.18 but are in excess of the coverage
maintained thereunder; (b) nuclear reaction or nuclear radiation or
radioactive contamination, all whether controlled or uncontrolled, and whether
such loss be direct or indirect, proximate or remote or be in whole or in part
caused by, contributed to or aggravated by a peril covered by the definition
of the term "Special Hazard Loss"; (c) hostile or warlike action in time of
peace or war, including action in hindering, combating or defending against an
actual, impending or expected attack: (i) by any government or sovereign
power, de jure or de facto, or by any authority maintaining or using military,
naval or air forces; or (ii) by military, naval or air forces; or (iii) by an
agent of any such government, power, authority or forces; (d) any weapon of
war employing atomic fission or radioactive force whether in time of peace or
war; or (e) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority; or
risks of contraband or illegal transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan in Loan
Group I, Loan Group II or Loan Group III 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.
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FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan in Loan Group I, Loan Group
II or Loan Group III as to which a Fraud Loss has occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $3,250,440.00,
subject to reduction from time to time by the amount of Fraud Losses allocated
to the Group I Certificates, the Group II Certificates or the Group III
Certificates. On each anniversary of the Cut-off Date, the Fraud Loss Coverage
Amount will be reduced as follows: (a) prior to the fifth anniversary of the
Cut-off Date, the Fraud Loss Coverage Amount will be reduced to an amount
equal to the lesser of (i) 1% of the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group I, Loan Group II and Loan Group III and (ii) the
excess of the Fraud Loss Coverage Amount as of the preceding anniversary of
the Cut-off Date (or, in the case of the first such anniversary, as of the
Cut-off Date) over the cumulative amount of Fraud Losses on the Mortgage Loans
allocated to the Group I Certificates, the Group II Certificates and the Group
III Certificates since such preceding anniversary or the Cut-off Date, as the
case may be, and (b) on the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
applicable Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Mortgage Loans in Loan Group I,
Loan Group II and Loan Group III 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.
Group: When used with respect to the Mortgage Loans, any of Group I,
Group II, Group III or Group IV or with respect to the Certificates, the Class
or Classes of Certificates that relate to the corresponding Group or Groups.
Group I: With respect to the Mortgage Loans, the pool of adjustable
rate Mortgage Loans identified in the related Mortgage Loan Schedule as having
been assigned to Group I or with respect to the Certificates, the Class I-A
and Class AR Certificates.
Group I Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group I which became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group I Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and (ii) the Senior Prepayment Percentage of the Liquidation Principal
with respect to such Mortgage Loan.
Group I Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate of
the Class Principal Balances of the Class I-A and Class AR Certificates
immediately prior to such Distribution Date and the denominator of which is
the aggregate of the Stated Principal Balances of the Mortgage Loans in
23
Loan Group I, as of the first day of the related Due Period; provided,
however, in no event will the Group I Senior Percentage exceed 100%.
Group I Senior Principal Distribution Amount: As to any Distribution
Date, the sum of (i) the Group I Senior Percentage of the Principal Payment
Amount for Loan Group I, (ii) the Senior Prepayment Percentage of the
Principal Prepayment Amount for Loan Group I, and (iii) the Group I Senior
Liquidation Amount.
Group I Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group I Senior Percentage.
Group II: With respect to the Mortgage Loans, the pool of adjustable
rate Mortgage Loans identified in the related Mortgage Loan Schedule as having
been assigned to Group II or with respect to the Certificates, the Class II-A
Certificates.
Group II Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group II which became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group II Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and (ii) the Senior Prepayment Percentage of the Liquidation Principal
with respect to such Mortgage Loan.
Group II Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balance of the Class II-A Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate of the Stated
Principal Balances of the Mortgage Loans in Loan Group II, as of the first day
of the related Due Period; provided, however, in no event will the Group II
Senior Percentage exceed 100%.
Group II Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group II Senior Percentage of the
Principal Payment Amount for Loan Group II, (ii) the Senior Prepayment
Percentage of the Principal Prepayment Amount for Loan Group II, and (iii) the
Group II Senior Liquidation Amount.
Group II Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group II Senior Percentage.
Group III: With respect to the Mortgage Loans, the pool of
adjustable rate Mortgage Loans identified in the related Mortgage Loan
Schedule as having been assigned to Group II or with respect to the
Certificates, the Class III-A and Class III-X Certificates.
Group III Excess Interest Amount: For any Distribution Date, the
amount equal to the product of the Group III Excess Interest Rate and the
Stated Principal Balance of the Mortgage Loans in Loan Group III as of the
second preceding Due Date after giving effect to Scheduled Payments for such
Due Date, whether or not received, or for the initial Distribution Date, the
Cut-off Date.
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Group III Excess Interest Rate: For any Distribution Date, a per
annum rate equal to 0.050%
Group III Senior Liquidation Amount: As to any Distribution Date,
the aggregate, for each Mortgage Loan in Loan Group III which became a
Liquidated Mortgage Loan during the related Prepayment Period, of the lesser
of (i) the Group III Senior Percentage of the Stated Principal Balance of such
Mortgage Loan and (ii) the Senior Prepayment Percentage of the Liquidation
Principal with respect to such Mortgage Loan.
Group III Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the Certificate
Principal Balance of the Class III-A Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate of the Stated
Principal Balances of the Mortgage Loans in Loan Group III, as of the first
day of the related Due Period; provided, however, in no event will the Group
III Senior Percentage exceed 100%.
Group III Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group III Senior Percentage of the
Principal Payment Amount for Loan Group III, (ii) the Senior Prepayment
Percentage of the Principal Prepayment Amount for Loan Group III, and (iii)
the Group III Senior Liquidation Amount.
Group III Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group III Senior Percentage.
Group IV Certificates: The Class IV-A, Class IV-M-1, Class IV-M-2,
Class IV-B and Class IV-X Certificates.
Group IV Senior Certificates: The Class IV-A Certificates.
Group IV Senior Enhancement Percentage: For any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the sum of
the aggregate Class Principal Balance of the Class IV-M-1, Class IV-M-2 and
Class IV-B Certificates and the Overcollateralization Amount (which, for
purposes of this definition only, shall not be less than zero), in each case
after giving effect to payments on such Distribution Date (assuming no Trigger
Event has occurred), and the denominator of which is the Aggregate Loan Group
Balance for Loan Group IV for such Distribution Date.
Group IV Senior Principal Payment Amount: For any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event has not occurred
with respect to such Distribution Date, will be the amount, if any, by which
(x) the Class Principal Balance of the Class IV-A Certificates, immediately
prior to such Distribution Date exceeds (y) the lesser of (A) the product of
(i) 85.00% and (ii) the Aggregate Loan Group Balance for Loan Group IV for
such Distribution Date and (B) the amount, if any, by which (i) the Aggregate
Loan Group Balance for Loan Group IV for such Distribution Date exceeds (ii)
0.50% of the Aggregate Loan Group Balance for Loan Group IV as of the Cut-off
Date.
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Group IV Subordinate Certificates: The Class IV-M-1, Class IV-M-2,
Class IV-B and Class IV-X Certificates.
HomeSide: HomeSide Servicing L.P., a Florida corporation, and its
successors and assigns.
HomeSide Serviced Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule.
Index: With respect to any Mortgage Loan and each related Adjustment
Date, the index as specified in the related Mortgage Note.
Indirect Participants: Entities, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly.
Initial Bankruptcy Loss Coverage Amount: $100,000.
Initial Class Principal Balance: As set forth in the Preliminary
Statement.
Insolvency Proceeding: As defined in Section 4.03(h).
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any Mortgage Guaranty Insurance Policy, the TGIC Policy, any
standard hazard insurance policy, flood insurance policy or title insurance
policy, including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds of any primary mortgage guaranty
insurance policies, including, without limitation, the 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 the Master Servicer
or a Servicer's normal servicing procedures.
Interest Determination Date: With respect to the LIBOR Certificates
and for each Accrual Period, the second LIBOR Business Day preceding the
commencement of such Accrual Period.
Interest Distribution Amount: With respect to any Distribution Date
and interest-bearing Class of Group I Certificates, Group II Certificates and
Group III 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(I)(d), and (ii) any Class Unpaid
Interest Amounts for such Class and Distribution Date.
Interest Rate: With respect to each Subsidiary REMIC Interest, the
applicable rate set forth or calculated in the manner described in the
Preliminary Statement.
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Interest Remittance Amount: For any Distribution Date and the
Mortgage Loans in Loan Group IV, an amount equal to the sum of (1) all
interest collected (other than Payaheads) or advanced in respect of Scheduled
Payments on the Mortgage Loans in Loan Group IV 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 and Curtailments received on the Mortgage Loans during the related
Prepayment Period, less (x) the applicable Expense Fees with respect to such
Mortgage Loans and (y) unreimbursed Advances and other amounts due to the
Master Servicer, the applicable Servicer and the Trust Administrator with
respect to such Mortgage Loans, to the extent allocable to interest, (2) all
Compensating Interest Payments paid by Vesta or the Master Servicer with
respect to the Mortgage Loans in Loan Group IV with respect to the related
Prepayment Period, (3) the portion of any Substitution Adjustment Amount or
Purchase Price paid with respect to such Mortgage Loans during the related
Collection Period allocable to interest, (4) all Net Liquidation Proceeds and
any other recoveries (net of unreimbursed Advances, Servicing Advances and
expenses, to the extent allocable to interest, and unpaid Expense Fees)
collected with respect to the Mortgage Loans in Loan Group IV during the
related Collection Period, to the extent allocable to interest and (5) the
Group III Excess Interest Amount for such Distribution Date.
Interest Shortfall: For any Distribution Date and the Mortgage Loans
in Loan Group IV, an amount equal to the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rate) on
Mortgage Loans in Loan Group IV resulting from (a) Principal Prepayments
received during the related Prepayment Period and (b) interest payments on
certain of the Mortgage Loans in Loan Group IV being limited pursuant to the
provisions of the Soldiers' and Sailors' Civil Relief Act of 1940.
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 the Master Servicer or a Servicer has determined (in accordance with
this Agreement) that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan, including the final
disposition of the related REO Property.
Liquidation Expenses: Customary and reasonable "out of pocket"
expenses incurred by the Master Servicer or a Servicer (or the related
Sub-Servicer) in connection with the liquidation of any defaulted Mortgage
Loan and not recovered by the Servicer (or the related Sub-Servicer) under a
Primary Mortgage Insurance Policy for reasons other than such Servicer's
failure to comply with Section 3.09 hereof, such expenses including, without
limitation, legal fees and expenses, any unreimbursed amount expended by the
Master Servicer or a Servicer pursuant to Section 3.11 hereof respecting the
related Mortgage and any related and unreimbursed expenditures for real estate
property taxes or for property restoration or
27
preservation to the extent not previously reimbursed under any hazard
insurance policy for reasons other than such Servicer's failure to comply with
Section 3.11 hereof.
Liquidation Principal: As to any Distribution Date and a Loan Group,
the principal portion of Liquidation Proceeds received with respect to each
Mortgage Loan in that Loan Group which became a Liquidated Mortgage Loan (but
not in excess of the principal balance thereof) during the preceding calendar
month.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property related to a Mortgage Loan and any other proceeds
received in connection with an REO Property.
Loan Group: Any of Loan Group I, Loan Group II, Loan Group III or
Loan Group IV, as applicable.
Loan Group I: All Mortgage Loans identified as Loan Group I Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group II: All Mortgage Loans identified as Loan Group II
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group III: All Mortgage Loans identified as Loan Group III
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group IV: All Mortgage Loans identified as Loan Group IV
Mortgage Loans on the Mortgage Loan Schedule.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the Appraised Value of the Mortgaged Property or, in the case of a
Qualified Substitute Mortgage Loan, is the appraised value of the Mortgaged
Property based upon an appraisal made within 180 days prior to the date of
substitution of such Qualified Substitute Mortgage Loan for a Deleted Mortgage
Loan.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Master REMIC: As described in the Preliminary Statement.
Master Serviced Loans: The Mortgage Loans directly serviced by an
entity other than HomeSide or Vesta.
Master Servicer: Chase Manhattan Mortgage Corporation, a New Jersey
corporation, its successors and assigns.
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Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the Master Servicing Fee Rate
on the Stated Principal Balance of such Mortgage Loan calculated as of the
first day of the related Due Period, subject to reduction as provided in
Section 3.14.
Master Servicing Fee Rate: As to each Mortgage Loan, a per annum
rate equal to 0.01%
Maximum Interest Rate: With respect to the LIBOR Certificates and
any Distribution Date, an annual rate equal to the weighted average of the
Maximum Mortgage Rates of the Mortgage Loans in Loan Group IV minus the
Expense Fee Rate.
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.
Monthly Excess Cashflow: For any Distribution Date, an amount equal
to the sum of the Monthly Excess Interest and Overcollateralization Release
Amount, if any, for such date.
Monthly Excess Interest: For any Distribution Date, the excess of
the Interest Remittance Amount after the application of items (i) through (v)
in the distribution thereof, pursuant to Section 4.01(II)(d).
Moody's: Xxxxx'x Investors Service, Inc. or any successor thereto.
Mortgage: With respect to a Mortgage Loan, the mortgage, deed of
trust or other instrument creating a first lien on a fee simple or leasehold
estate in real property securing a Mortgage Note.
Mortgage File: For each Mortgage Loan, the Trustee Mortgage File and
the Servicer Mortgage File.
Mortgage Guaranty Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to the provisions hereof as from time to time are held
as a part of the Trust Fund (including any REO Property), the mortgage loans
so held being identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Mortgage Loan Purchase Price: The price, calculated as set forth in
Section 10.01, to be paid in connection with the purchase of the Mortgage
Loans pursuant to an Optional Termination of the Trust Fund.
29
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Seller to reflect the addition of Qualified Substitute
Mortgage Loans and the purchase of Mortgage Loans pursuant to Section 2.02 or
2.03) transferred to the Trustee as part of the Trust Fund and from time to
time subject to this Agreement, attached hereto as Schedule I, setting forth
the following information with respect to each Mortgage Loan and applicable
Servicer by Loan Group:
1. the Mortgage Loan identifying number;
2. the Mortgagor's name;
3. the street address of the Mortgaged Property including the state and
zip code;
4. a code indicating the type of Mortgaged Property and the occupancy
status.
5. the original months to maturity or the remaining months to maturity
from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule;
6. the Loan-to-Value Ratio at origination;
7. the Mortgage Rate as of the Cut-off Date;
8. the stated maturity date;
9. the amount of the Scheduled Payment as of the Cut-off Date;
10. the original principal amount of the Mortgage Loan;
11. the principal balance of the Mortgage Loan as of the close of
business on the Cut-off Date, after deduction of payments of
principal due on or before the Cut-off Date whether or not
collected;
12. a code indicating the purpose of the Mortgage Loan (i.e., purchase,
rate and term refinance, equity take-out refinance);
13. whether such Mortgage Loan has a Prepayment Penalty;
14. whether such Mortgage Loan is a TGIC PMI Mortgage Loan;
15. the Expense Fee Rate as of the Cut-off Date;
16. the Servicing Fee Rate and the Master Servicing Fee Rate (which may
be disclosed on the Mortgage Loan Schedule in two parts identified
as the servicing fee and master servicing fee);
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17. whether such Mortgage Loan is a HomeSide Serviced Loan, a Vesta
Serviced Loan or a Master Serviced Loan;
18. the Index that is associated with such Mortgage Loan, if applicable;
19. the Gross Margin, if applicable;
20. the Periodic Rate Cap, if applicable;
21. the Minimum Mortgage Rate, if applicable;
22. the Maximum Mortgage Rate, if applicable; and
23. 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.
MR Interest: The sole class of "residual interest" in the Master
REMIC.
Net Excess Spread: With respect to any Distribution Date and Loan
Group IV, a fraction, expressed as a percentage, the numerator of which is
equal to the excess of (x) the aggregate Stated Principal Balance for such
Distribution Date of the Mortgage Loans in that Loan Group, multiplied by the
Net WAC Rate for such Loan Group over (y) the Interest Remittance Amount for
such Loan Group for such Distribution Date, and the denominator of which is an
amount equal to the Aggregate Loan Group Balance for such Distribution Date of
the Mortgage Loans in such Loan Group, multiplied by the actual number of days
elapsed in the related Accrual Period divided by 360.
Net Funds Cap: For any Distribution Date and Loan Group IV, will be
a per annum rate equal to (a) a fraction, expressed as a percentage, the
numerator of which is the
31
product of (1) the Optimal Interest Remittance Amount for such date and Loan
Group IV and (2) 12, and the denominator of which is the applicable Aggregate
Loan Group Balance of Loan Group IV immediately preceding such Distribution
Date, multiplied by (b) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual
Period.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the excess of the related Liquidation Proceeds over the sum of
Liquidation Expenses, Expense Fees and unreimbursed Advances and Servicing
Advances.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate for such Mortgage Loan less the
related Expense Fee Rate.
Net WAC Rate: As to any Distribution Date and Loan Group, a rate
equal to the weighted average of the Net Mortgage Rates on the Mortgage Loans
in such Loan Group as of the second preceding Due Date after giving effect to
payments due on such Due Date, whether or not received, weighted on the basis
of the Stated Principal Balances as of such date reduced by, in the case of
Group III, the Class III-X Excess Interest Rate. In addition, for any purpose
for which the Net WAC Rate is calculated, the interest rate on the Mortgage
Loans shall be appropriately adjusted to account for the difference between
any counting convention used with respect to the Mortgage Loans and any
counting convention used with respect to a REMIC regular interest.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the Compensating Interest Payment for such
Distribution Date.
1933 Act: The Securities Act of 1933, as amended.
Nonrecoverable Advance: Any portion of an Advance or Servicing
Advance previously made or proposed to be made by the Master Servicer or a
Servicer that, in the good faith judgment of the Master Servicer or a
Servicer, will not be ultimately recoverable by the Master Servicer or a
Servicer from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, the President, an Executive Vice
President, Senior Vice President, a Vice President, or other authorized
officer, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor, the Seller, the Master Servicer, the
Servicers, the Speical Servicer, a Sub-Servicer, the Trustee or the Trust
Administrator, as the case may be, and delivered to the Depositor, the Seller,
the Master Servicer, the Special Servicer, the Servicers, the Trustee or the
Trust Administrator, as required by this Agreement.
32
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor, the Master Servicer or a Servicer, reasonably acceptable to
the Trustee and the Trust Administrator. With respect to the definition of
Eligible Account in this Article I and Sections 2.05 and 7.04 hereof and any
opinion dealing with the qualification of the REMIC or compliance with the
REMIC Provisions, such counsel must (i) in fact be independent of the
Depositor, the Master Servicer and such Servicer, (ii) not have any direct
financial interest in the Depositor, the Master Servicer or such Servicer or
in any affiliate of either of them and (iii) not be connected with Depositor,
the Master Servicer or such Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar
functions.
Optimal Interest Remittance Amount: For any Distribution Date and
Loan Group IV, the excess of (i) the product of (1) (x) the weighted average
of the Mortgage Rates of the Mortgage Loans in such Loan Group as of the first
day of the related Due Period less the weighted average Expense Fee Rate
divided by (y) 12 and (2) the applicable Aggregate Loan Group Balance for Loan
Group IV for the immediately preceding Distribution Date, over (ii) any
expenses that reduce the Interest Remittance Amount that did not arise as a
result of a default or delinquency of the Mortgage Loans in the Loan Group IV.
Optional Termination: The purchase of the Mortgage Loans pursuant to
Section 10.01.
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.
Overcollateralization Amount: For any Distribution Date, an amount
equal to the amount, if any, by which (x) the Aggregate Loan Group Balance for
Loan Group IV for such Distribution Date exceeds (y) the aggregate Class
Principal Balance of the Group IV Certificates after giving effect to payments
on such Distribution Date.
Overcollateralization Deficiency: For any Distribution Date, the
amount, if any, by which (x) the Targeted Overcollateralization Amount for
such Distribution Date exceeds (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after giving effect to the
reduction on such Distribution Date of the aggregate Class Principal Balance
of the Group IV Certificates resulting from the payment of the Principal
Payment Amount on such Distribution Date but prior to allocation of any
Applied Loss Amount on the Group IV Certificates on such Distribution Date.
Overcollateralization Release Amount: For any Distribution Date, an
amount equal to the lesser of (x) the related Principal Remittance Amount for
such Distribution Date and (y) the amount, if any, by which (1) the
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the aggregate
33
of the related Principal Remittance Amount for such date is applied on such
date in reduction of the aggregate of the Class Principal Balances of the
Group IV Certificates, exceeds (2) the Targeted Overcollateralization Amount
for such date.
Participant: A broker, dealer, bank, other financial institution or
other Person for whom DTC effects book-entry transfers and pledges of
securities deposited with DTC.
Pass-Through Entity: (a) a regulated investment company described in
Section 851 of the Code, a real estate investment trust described in Section
856 of the Code, a common trust fund or an organization described in Section
1381(a) of the Code, (b) any partnership, trust or estate or (c) any person
holding a Class A Certificate as nominee for another person.
Pass-Through Rate: For any interest-bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement. Interest on the Certificates other than the LIBOR
Certificates will be computed on the basis of a 360-day year comprised of
twelve 30-day months. Interest on the LIBOR Certificates will be computed on
the basis of a 360-day year and the actual number of days elapsed in the
related Accrual Period.
Payahead: Any Scheduled Payment intended by the related Mortgagor to
be applied in a Collection Period subsequent to the Collection Period in which
such payment was received.
Payoff: Any payment of principal on a Mortgage Loan equal to the
entire outstanding Stated Principal Balance of such Mortgage Loan, if received
in advance of the last scheduled Due Date for such Mortgage Loan and
accompanied by an amount of interest equal to accrued unpaid interest on the
Mortgage Loan to the date of such payment-in-full.
Percentage Interest: As to any Certificate, either the percentage
set forth on the face thereof or equal to the percentage obtained by dividing
the Denomination of such Certificate by the aggregate of the Denominations of
all Certificates of the same Class.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Physical Certificates: As set forth in the Preliminary Statement.
Prepayment Interest Shortfall: As to any Mortgage Loan, Distribution
Date and Principal Prepayment received during the related Prepayment Period,
the difference between (i) one full month's interest at the applicable
Mortgage Rate (giving effect to any applicable Relief Act Reduction, Debt
Service Reduction and Deficient Valuation), as reduced by the Master Servicing
Fee Rate and the Servicing Fee Rate, on the outstanding principal balance of
such Mortgage Loan immediately prior to such prepayment and (ii) the amount of
interest actually received with respect to such Mortgage Loan in connection
with such Principal Prepayment.
34
Prepayment Penalty: With respect to any Mortgage Loan, any penalty
required to be paid if the Mortgagor prepays such Mortgage Loan as provided in
the related Mortgage Note or Mortgage.
Prepayment Period: With respect to each Distribution Date and each
Payoff or Curtailment with respect to a Mortgage Loan, the related "Prepayment
Period" will be the calendar month preceding the month in which the related
Distribution Date occurs.
Principal Payment Amount: For any Distribution Date and Loan Group
I, Loan Group II or Loan Group III, the sum of (i) the principal portion of
the Scheduled Payments on the Mortgage Loans in such Loan Group due on the
related Due Date, (ii) the principal portion of repurchase proceeds received
with respect to any Mortgage Loan in such Loan Group which was repurchased as
permitted or required by this Agreement during the related Prepayment Period
and (iii) any other unscheduled payments of principal which were received on
the Mortgage Loans in such Loan Group during the related Prepayment Period,
other than Principal Prepayments or Liquidation Principal. For any
Distribution Date and Loan Group IV, an amount equal to the Principal
Remittance Amount for such date minus the Overcollateralization Release
Amount, if any, for such date.
Principal Prepayment: Any payment of principal on a Mortgage Loan
which constitutes a Payoff or Curtailment.
Principal Prepayment Amount: For any Distribution Date and Loan
Group I, Loan Group II or Loan Group III, the sum of all Principal Prepayments
relating to the Mortgage Loans in such Loan Group which were received during
the related Prepayment Period.
Principal Remittance Amount: For any Distribution Date and Loan
Group IV, an amount equal to the sum of (1) all principal collected (other
than Payaheads) or advanced in respect of Scheduled Payments on the Mortgage
Loans in Loan Group IV during the related Collection Period (less unreimbursed
Advances, Servicing Advances and other amounts due to the Servicers with
respect to the Mortgage Loans in Loan Group IV, 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 the Master
Servicer, 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 in Loan Group IV during the related Collection Period, to the
extent allocable to principal.
Principal Transfer Amount: For any Distribution Date and each
Undercollateralized Group, the excess, if any, of the aggregate Class
Principal Balance of the Class A Certificates related to such
Undercollateralized Group over the aggregate Stated Principal Balance of the
Mortgage Loans in such group.
35
Private Certificates: As set forth in the Preliminary Statement.
Pro Rata Allocation: With respect to Excess Losses or Extraordinary
Losses relating to Loan Group I, Loan Group II and Loan Group IV, the
allocation of the principal portion of such losses to all Classes of
Certificates (other than the Notional Amount Certificates), pro rata according
to their respective Class Principal Balances in reduction thereof, and the
allocation of the interest portion of such losses to all Classes of
Certificates, pro rata according to the amount of interest accrued but unpaid
on each such Class, in reduction thereof, and then to such Classes pro rata
according to their respective Class Principal Balances in reduction thereof.
Pro Rata Share: As to any Distribution Date and the Class C-B-1,
Class C-B-2, Class C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6
Certificates, the portion of the Subordinate Principal Distribution Amount
allocable to such Class, equal to the product of the Subordinate Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Principal Balance of such Class and the denominator
of which is the aggregate of the Class Principal Balances of the Group C-B
Certificates.
Prospectus: The Prospectus, dated October 23, 2000, 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, the
Servicer or the Seller, as applicable, shall deliver to the Trustee and the
Trust Administrator an Officer's Certificate as to the calculation of the
Purchase Price.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any
36
replacement insurer with respect to a Mortgage Loan must have at least as high
a claims paying ability rating as the insurer it replaces had on the Closing
Date.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by a
Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit K (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution
(or, in the case of a substitution of more than one mortgage loan for a
Deleted Mortgage Loan, an aggregate principal balance), not in excess of, and
not more than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (iv)
have a remaining term to maturity no greater than (and not more than one year
less than that of) the Deleted Mortgage Loan; (v) have a Maximum Mortgage Rate
and Minimum Mortgage Rate not less than the respective such rates for the
Deleted Mortgage Loan, have a Gross Margin equal to or greater than the
Deleted Mortgage Loan and have the same Index as the Deleted Mortgage Loan;
and (vi) comply with each representation and warranty set forth in Section
2.03(b).
Rating Agency: Xxxxx'x or S&P, or any successor to either of them.
Ratings: As of any date of determination, the ratings, if any, of
the Certificates as assigned by the Rating Agencies.
Realized Loss: With respect to any Mortgage Loan, (1) with respect
to each Liquidated Mortgage Loan, an amount (not less than zero or more than
the Stated Principal Balance of the Mortgage Loan) as of the date of such
liquidation, equal to (i) the Stated Principal Balance of the Liquidated
Mortgage Loan as of the date of such liquidation, plus (ii) interest at the
applicable Net Mortgage Rate from the related Due Date as to which interest
was last paid or advanced (and not reimbursed) to Certificateholders up to the
related Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Net Liquidation Proceeds, if any, received
during the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan; (2) for any Mortgage Loan subject to a Deficient
Valuation, the excess of the Stated Principal Balance of that Mortgage Loan
over the principal amount as reduced in connection with the proceedings
resulting in the Deficient Valuation; or (3) for any Debt Service Reduction
Mortgage Loan, the present value of all monthly Debt Service Reductions on the
Mortgage Loan, assuming that the mortgagor pays each Scheduled Payment on the
applicable Due Date and that no Principal Prepayments are received on the
Mortgage Loan, discounted at the applicable Mortgage Rate.
Record Date: With respect to any Distribution Date and the
Certificates other than the LIBOR Certificates held in Book-Entry Form, the
close of business on the last Business Day of the month preceding the month in
which the applicable Distribution Date occurs. With respect to the LIBOR
Certificates that are not Physical Certificates and any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date; provided, however, that following the date on which Definitive
Certificates for a Class of LIBOR Certificates are available pursuant to
Section 5.02, the Record Date shall be the close of business
37
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 1, 2001.
Reference Bank Rate: As to any Accrual Period relating to the LIBOR
Certificates as follows: the arithmetic mean (rounded upwards, if necessary,
to the nearest one sixteenth of a percent) of the offered rates for United
States dollar deposits for one month which are offered by the Reference Banks
as of 11:00 A.M., London time, on the Interest Determination Date prior to the
first day of such Accrual Period to prime banks in the London interbank market
for a period of one month in amounts approximately equal to the aggregate
Class Principal Balance of the LIBOR Certificates; provided that at least two
such Reference Banks provide such rate. If fewer than two offered rates
appear, the Reference Bank Rate will be the arithmetic mean of the rates
quoted by one or more major banks in New York City, selected by the Trust
Administrator after consultation with DLJMC, as of 11:00 A.M., New York City
time, on such date for loans in U.S. Dollars to leading European banks for a
period of one month in amounts approximately equal to the aggregate Class
Principal Balance of the LIBOR Certificates. If no such quotations can be
obtained, the Reference Bank Rate shall be the Reference Bank Rate applicable
to the preceding Accrual Period.
Reference Banks: Three major banks that are engaged in the London
interbank market, selected by the Trust Administrator after consultation with
DLJMC.
Registration Statement: That certain registration statement on Form
S-3, as amended (Registration No. 333-49820), relating to the offering by the
Depositor from time to time of its Mortgage-Backed Pass-Through Certificates
(Issuable in Series) as heretofore declared effective by the Securities and
Exchange Commission.
Regular Certificates: All of the Certificates other than the Class
AR Certificates.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit", within the
meaning of Section 860D of the Code. Reference herein to REMIC refers to the
Master REMIC and the Subsidiary REMIC, as the context requires.
REMIC 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
38
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Required Basis Risk Reserve Fund Deposit: With respect to any
Distribution Date on which the Net Excess Spread is less than 0.25%, the
excess of (i) the greater of (a) $15,000 and (b) product of 0.50% and the
Aggregate Loan Balance over (ii) the amount of funds on deposit in the Basis
Risk Reserve Fund prior to deposits thereto on such Distribution Date. With
respect to any Distribution Date on which the Net Excess Spread is equal to or
greater than 0.25%, the excess of (i) $1,000 over (ii) the amount of funds on
deposit in the Basis Risk Reserve Fund prior to deposits thereto on such
Distribution Date.
Required Basis Risk Reserve Fund Amount: With respect to any
Distribution Date on which the Net Excess Spread is less than 0.25%, the
greater of (a) $15,000 and (b) the product of 0.50% and the Aggregate Loan
Balance. With respect to any Distribution Date on which the Net Excess Spread
is equal to or greater than 0.25%, $1,000.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement in respect of such Mortgage Loan or the related Mortgaged
Property.
Responsible Officer: When used with respect to the Trustee or the
Trust Administrator, shall mean any officer within the corporate trust
department of the Trustee or the Trust Administrator, respectively, including
any Assistant Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer or any other officer of
the Trustee or the Trust Administrator customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Rolling Three Month Delinquency Rate: For any Distribution Date will
be the fraction, expressed as a percentage, equal to the average of the
Delinquency Rates for each of the three (or one and two, in the case of the
first and second Distribution Dates) immediately preceding months.
Rule 144A: Rule 144A under the 1933 Act, as in effect from time to
time.
S&P: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
Scheduled Final Distribution Date: The Distribution Date in December
2031.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan pursuant to the terms of the related Mortgage Note Loan.
39
Seller: DLJMC.
Senior Certificates: As specified in the Preliminary Statement.
Senior Liquidation Amount: The Group I Senior Liquidation Amount,
Group II Senior Liquidation Amount or the Group III Senior Liquidation Amount,
as applicable.
Senior Percentage: The Group I Senior Percentage, the Group II
Senior Percentage or the Group III Senior Percentage as applicable.
Senior Prepayment Percentage: The Senior Prepayment Percentage for
any Distribution Date occurring during the five years beginning on the first
Distribution Date for each of Loan Group I, Loan Group II and Loan Group III
will equal 100%. The Senior Prepayment Percentage for any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date for
each such Loan Group will be as follows: for any Distribution Date in the
first year thereafter, the related Senior Percentage plus 70% of the related
Subordinate Percentage for such Distribution Date; for any Distribution Date
in the second year thereafter, the related Senior Percentage plus 60% of the
related Subordinate Percentage for such Distribution Date; for any
Distribution Date in the third year thereafter, the related Senior Percentage
plus 40% of the related Subordinate Percentage for such Distribution Date; for
any Distribution Date in the fourth year thereafter, the related Senior
Percentage plus 20% of the related Subordinate Percentage for such
Distribution Date; and for any Distribution Date thereafter, the related
Senior Percentage for such Distribution Date (unless (i) on any of the
foregoing Distribution Dates the related Senior Percentage exceeds the initial
related Senior Percentage, in which case the related Senior Prepayment
Percentage will once again equal 100% or (ii) if the related Subordinate
Percentage is greater than or equal to twice the related Subordinate
Percentage on the Closing Date, in which case the Senior Prepayment Percentage
for each Group will equal the related Senior Percentage).
Notwithstanding the foregoing no decrease in the reduction to the
Senior Prepayment Percentage for Loan Group I, Loan Group II or Loan Group
III, as applicable, as described above will occur if as of the first
Distribution Date as to which any such decrease applies (i) the outstanding
principal balance of the Mortgage Loans delinquent 60 days or more (averaged
over the preceding six month period), as a percentage of the related aggregate
Subordinate Component Balance as of such Distribution Date is equal to or
greater than 50% and (ii) cumulative Realized Losses in such Loan Group exceed
(a) with respect to the Distribution Date on the fifth anniversary of the
first Distribution Date, 30% of the related aggregate Subordinate Component
Balance as of the 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 related Original Subordinate Principal
Balance, (c) with respect to the Distribution Date on the seventh anniversary
of the first Distribution Date, 40% of the related Original Subordinate
Principal Balance, (d) with respect to the Distribution Date on the eighth
anniversary of the first Distribution Date, 45% of the related Original
Subordinate Principal Balance and (e) with respect to the Distribution Date on
the ninth anniversary of the first Distribution Date, 50% of the Original
Subordinate Principal Balance.
40
Senior Principal Distribution Amount: The Group I Senior Principal
Distribution Amount, the Group II Senior Principal Distribution Amount or the
Group III Senior Principal Distribution Amount, as applicable.
Servicers: HomeSide and Vesta, and any successor in interest thereto
or any successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicer Mortgage File: All documents pertaining to a Mortgage Loan
not required to be included in the Trustee Mortgage File and held by the
Master Servicer or the related Servicer or any Sub-Servicer.
Servicing Advance: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by a Servicer or the
Master Servicer of its servicing obligations, including, but not limited to,
the cost (including reasonable attorneys' fees and disbursements) of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii)
compliance with Section 3.11 and any enforcement or judicial proceedings,
including foreclosures, (iii) the management and liquidation of any REO
Property (including default management and similar services, appraisal
services and real estate broker services); (iv) any expenses incurred by a
Servicer or the Master Servicer in connection with obtaining an environmental
inspection or review pursuant to the second paragraph of Section 3.11(a) and
(v) compliance with the obligations under Section 3.09.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount equal to one month's interest at the Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
of such Distribution Date (prior to giving effect to any Scheduled Payments
due on such Mortgage Loan on such Due Date), subject to reduction as provided
in Section 3.14.
Servicing Fee Rate: As to each Mortgage Loan, the per annum rate set
forth on the related Mortgage Loan Schedule.
Servicing Officer: Any officer of the Master Servicer or a Servicer
involved in, or responsible for, the administration and servicing of the
related Mortgage Loans whose name and specimen signature appear on a list of
servicing officers furnished to the Trustee and the Trust Administrator by the
Master Servicer or by a Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended and delivered to the
Trustee and Trust Administrator.
Special 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
41
pavements, foundations, walls, floors, roofs or ceilings; (iii) errors in
design, faulty workmanship or faulty materials, unless the collapse of the
property or part thereof ensues and then only for the ensuing loss; (iv)
nuclear or chemical reaction or nuclear radiation or radioactive or chemical
contamination, all whether controlled or uncontrolled, and whether such loss
be direct or indirect, proximate or remote; (v) hostile or warlike action in
time of peace or war, including action in hindering, combating or defending
against an actual, impending or expected attack (a) by any government of
sovereign power, de jure or de facto, or by any authority maintaining or using
military, naval or air forces, (b) by military, naval or air forces, or (c) by
an agent of any such government, power, authority or forces; (vi) any weapon
of war employing atomic fission or radioactive force whether in time of peace
or war; or (vii) insurrection, rebellion, revolution, civil war, usurped power
or action taken by governmental authority in hindering, combating or defending
against such occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority, or
risks of contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the Group C-B
Certificates, as of the Closing Date, $3,934,721 subject in each case to
reduction from time to time, to be an amount equal on any distribution date to
the lesser of (a) the greatest of (i) 1% of the aggregate of the principal
balances of the Group I, Group II and Group III Mortgage Loans, (ii) twice the
principal balance of the largest Group II, Group II or Group III Mortgage Loan
and (iii) the aggregate principal balances of the Group II, Group II and Group
III Mortgage Loans secured by Mortgaged Properties located in the single
California postal zip code area having the highest aggregate principal balance
of any such zip code area and (b) the Special Hazard Loss Coverage Amount as
of the closing date less the amount, if any, of losses attributable to Special
Hazard Mortgage Loans incurred since the closing date. All principal balances
for the purpose of this definition will be calculated as of the first day of
the month preceding such distribution date after giving effect to scheduled
installments of principal and interest on the mortgage loans then due, whether
or not paid.
Special Hazard Loss Coverage Termination Date: The date on which the
Special Hazard Loss Coverage Amount is reduced to zero.
Special Servicer: Vesta Servicing, L.P., and its successors and
permitted assigns.
Special Serviced Mortgage Loan: The Mortgage Loans for which the
Special Servicer acts as servicer pursuant to Section 3.19.
Standard Hazard Policy: Each standard hazard insurance policy or
replacement therefor referred to in Section 3.09.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to any previous
Curtailments and Liquidation Proceeds allocable to principal (other than with
respect to any
42
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor.
Stepdown Date: The date occurring on the later of (x) the
Distribution Date in December 2004 and (y) the first Distribution Date on
which the Senior Enhancement Percentage (calculated for this purpose after
giving effect to payments or other recoveries in respect of the Mortgage Loans
in Loan Group IV during the related Collection Period but before giving effect
to payments on the Group IV Certificates on such Distribution Date) is greater
than or equal to 15.00%.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Component Balance: For any of Loan Group I, Loan Group
II or Loan Group III as of any date of determination, the then outstanding
aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group
minus the sum of the then outstanding aggregate Class Principal Balance of the
related Class A Certificates and, in the case of Loan Group I, the Class AR
Certificates.
Subordinate Liquidation Amount: For any Distribution Date, the
excess, if any, of the aggregate Liquidation Principal of all Mortgage Loans
which became Liquidated Mortgage Loans during the related Prepayment Period
over the sum of the Group I Senior Liquidation Amount, the Group II Senior
Liquidation Amount and the Group III Senior Liquidation Amount for such
Distribution Date.
Subordinate Percentage: As to any Distribution Date and Loan Group
I, Loan Group II or Loan Group III, the excess of 100% over the related Senior
Percentage for that Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
with respect to Loan Group I, Loan Group II or Loan Group III, 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 and Loan Group I, Loan
Group II and Loan Group III will equal the sum of (i) the related Subordinate
Percentage of the related Principal Payment Amount, (ii) the related
Subordinate Prepayment Percentage of the related Principal Prepayment Amount,
and (iii) the Subordinate Liquidation Amount.
Subordination Level: As to any Distribution Date and any Class of
Group C-B Certificates, the percentage obtained by dividing the sum of the
Class Principal Balances of all Classes of Group C-B Certificates which are
subordinate in right of payment to such Class by the sum of the Class
Principal Balances of the Group I, Group II, Group III and Group C-B
Certificates, other than the Notional Amount Certificates, in each case
immediately prior to such Distribution Date.
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Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC Regular
Interests.
Subsidiary REMIC Regular Interest: Any one of the "regular
interests" in either Subsidiary REMIC described in the Preliminary Statement.
Substitution Adjustment Amount: As defined in Section 2.03.
Sub-Servicer: Any other entity with respect to any Mortgage Loan
under any Sub-Servicing Agreement applicable to such Mortgage Loan and any
successors and assigns under such Sub-Servicing Agreement.
Sub-Servicing Agreement: Any servicing agreement between the Master
Servicer or a Servicer and a Sub-Servicer pursuant to which the Master
Servicer or a Servicer delegates any of its servicing responsibilities with
respect to any of the Mortgage Loans.
Subordinate Certificates: As specified in the Preliminary Statement.
Substitution Adjustment Amount: As defined in Section 2.04.
Targeted Overcollateralization Amount: For any Distribution Date
prior to the Stepdown Date, 0.50% of the Aggregate Loan Group Balance of Loan
Group IV as of the Cut-off Date; with respect to any Distribution Date on or
after the Stepdown Date and with respect to which a Trigger Event has not
occurred, the greater of (a) 1.00% of the Aggregate Loan Group Balance of Loan
Group IV for such Distribution Date, or (b) 0.50% of the Aggregate Loan Group
Balance of Loan Group IV as of the Cut-off Date; with respect to any
Distribution Date on or after the Stepdown Date with respect to which a
Trigger Event has occurred and is continuing, the Targeted
Overcollateralization Amount for the Distribution Date immediately preceding
such Distribution Date.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation Section 1.860F-4(d) and
temporary Treasury regulation Section 301.6231(a)(7)-1T. Initially, the Tax
Matters Person shall be the Trust Administrator.
Telerate Page 3750: The display designated as page 3750 on Bridge
Telerate Service (or such other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks).
Terminating Entity: Vesta, upon the exercise of such entity's right
to effect an Optional Termination pursuant to Section 10.01.
TGIC PMI Fee: As to each TGIC PMI Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the TGIC PMI Fee Rate on the
Stated Principal Balance of such TGIC PMI Mortgage Loan as of the Due Date in
the month of such Distribution Date (prior to giving effect to any Scheduled
Payment due on such TGIC PMI Mortgage Loan on such Due Date).
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TGIC PMI Fee Rate: With respect to each TGIC PMI Mortgage Loan, the
per annum rate equal to 0.242%.
TGIC PMI Mortgage Loan: Those 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 R.
Transferee Affidavit and Agreement: As defined in Section
6.02(g)(i)(B).
Trigger Event: A Trigger Event will occur for any Distribution Date
if the Rolling Three Month Delinquency Rate as of the last day of the related
Collection Period equals or exceeds the lesser of (i) 12.00% or (ii) 50.00% of
the Senior Enhancement Percentage for such Distribution Date.
Trust Administrator: JPMorgan Chase Bank, a New York banking
corporation, not in its individual capacity, but solely in its capacity as
trust administrator for the benefit of the Certificateholders under this
Agreement, and any successor thereto, as provided herein.
Trust Fund: The corpus of the trust created by this Agreement
consisting of (a) the Mortgage Loans listed in the Mortgage Loan Schedule,
including all interest and principal received or receivable by the Depositor
on or with respect to the Mortgage Loans after the Cut-off Date, but not
including payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date, together with the Mortgage Files relating
to the Mortgage Loans, (b) REO Property, (c) the Collection Account, the
Certificate Account, the Basis Risk Reserve Fund and all amounts deposited
therein pursuant to the applicable provisions of this Agreement, (d) any
insurance policies with respect to the Mortgage Loans, including the TGIC
Policy, (e) the Depositor's rights under the Assignment and Assumption
Agreement and (f) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing into cash or other liquid property.
Trust Receipt and Final Certification: As defined in Section
2.02(a).
Trust Receipt and Initial Certification: As defined in Section
2.02(a).
Trustee: First Union National Bank, a national banking association,
not in its individual capacity, but solely in its capacity as trustee for the
benefit of the Certificateholders under this Agreement, and any successor
thereto, as provided herein.
Trustee Mortgage File: The mortgage documents listed in Section 2.01
hereof pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Trustee Mortgage File pursuant to this Agreement.
Undercollateralized Group: As defined in Section 4.06(b).
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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 Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule and if Vesta is the Special Servicer, any Special
Serviced Mortgage Loans.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
99% of all Voting Rights shall be allocated among the Class A, Class M, and
Class B Certificates. The portion of such 99% Voting Rights allocated to each
of the Class A, Class M and Class B Certificates shall be based on the
fraction, expressed as a percentage, the numerator of which is the aggregate
Class Principal Balance then outstanding and the denominator of which is the
Class Principal Balance of all Classes then outstanding. The Class IV-X
Certificates shall be allocated 1% of the Voting Interest. Voting Interests
shall be allocated among the Certificates within each such Class (other than
the Class IV-X Certificates, which has only one certificate) in proportion to
their respective outstanding Class Principal Balances. The Class AR
Certificates shall have no voting rights.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund.
(a) The Depositor hereby sells, transfers, assigns, delivers, sets
over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, the Depositor's right, title and
interest in and to (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date, together with the Mortgage Files
relating to the Mortgage Loans, (b) REO Property, (c) the Collection Account,
the Certificate Account, the Basis Risk Reserve Fund, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement, (d)
any insurance policies with respect to the Mortgage Loans, including the TGIC
Policy, (e) the Depositor's rights under the Assignment and Assumption
Agreement and (f) all proceeds of the conversion, voluntary or
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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 with a copy to the Trust Administrator.
(b) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to the
Trustee or a Custodian for the benefit of the Certificateholders, the
documents and instruments with respect to each Mortgage Loan as assigned:
(i) (A) the original Mortgage Note bearing all intervening
endorsements and including any riders to the Mortgage Note, endorsed "Pay
to the order of ________________, without recourse" and signed in the
name of the last named endorsee by an authorized officer or (B) with
respect to any Lost Mortgage Note, a lost note affidavit and indemnity
from the Seller stating that the original Mortgage Note was lost or
destroyed, (together with a copy of such Mortgage Note, if available) and
indemnifying the Trust Fund against any loss, cost or liability resulting
from the failure to deliver the original Mortgage Note;
(ii) the original of any guarantee executed in connection with the
Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon, or
copies certified by the related recording office or if the original
Mortgage has not yet been returned from the recording office, a copy
certified by or on behalf of the Seller indicating that such Mortgage has
been delivered for recording. The return directions for the original
Mortgage should indicate, when recorded, mail to the Seller;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, (or, if an original of any of these documents has
not been returned from the recording office, a copy thereof certified by
or on behalf of the Seller, the original to be delivered to the Seller
forthwith after return from such recording office) with evidence of
recording thereon, if any;
(v) the original Assignment of Mortgage as appropriate, in
recordable form, for each Mortgage Loan from the last assignee assigned
in blank;
(vi) the originals of any intervening recorded Assignments of
Mortgage, showing a complete chain of assignment from origination to the
the last assignee, including warehousing assignments, with evidence of
recording thereon (or, if an original intervening Assignment of Mortgage
has not been returned from the recording office, a copy thereof certified
by or on behalf of the Seller, the original to be delivered to the
Trustee forthwith after return from such recording office); and
(vii) the original mortgage title insurance policy, or copy of title
commitment (or in appropriate jurisdictions, attorney's opinion of title
and abstract of title).
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In the event the Depositor delivers to the Trustee or the Custodian
certified copies of any document or instrument set forth in 2.01(b) because of
a delay caused by the public recording office in returning any recorded
document, the Depositor shall deliver or cause to be delivered to the Trustee
or the Custodian, within 60 days of the Closing Date, an Officer's Certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Trustee or the Custodian due solely to
a delay caused by the public recording office, and (iii) state the amount of
time generally required by the applicable recording office to record and
return a document submitted for recordation.
In the event that in connection with any Mortgage Loan the Depositor
cannot deliver (a) the original recorded Mortgage, (b) all interim recorded
assignments or (c) the lender's title policy (together with all riders
thereto) satisfying the requirements set forth above, concurrently with the
execution and delivery hereof because such document or documents have not been
returned from the applicable public recording office in the case of clause (a)
or (b) above, or because the title policy has not been delivered to the Seller
or the Depositor by the applicable title insurer in the case of clause (c)
above, the Depositor shall promptly deliver to the Trustee or the Custodian,
in the case of clause (a) or (b) above, such original Mortgage or such interim
assignment, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, DLJMC shall,
at its expense, (i) affix or cause to be affixed the Trustee's name to each
Assignment of Mortgage, as the assignee thereof, (ii) cause such assignment to
be in proper form for recording in the appropriate public office for real
property records within thirty (30) days after receipt thereof and (iii) cause
to be delivered for recording in the appropriate public office for real
property records the assignments of the Mortgages to the Trustee, except that,
with respect to any assignment of a Mortgage as to which DLJMC has not
received the information required to prepare such assignment in recordable
form, DLJMC's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within thirty (30) days after the receipt thereof, and DLJMC need not
cause to be recorded any assignment which relates to a Mortgage Loan in any
jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered by the Depositor (at the Depositor's expense) to the Trustee, the
Trust Administrator and DLJMC, acceptable to the Rating Agencies, the
recordation of such assignment is not necessary to protect the Trustee's and
the Certificateholders' interest in the related Mortgage Loan.
If any original Mortgage Note referred to in Section 2.01(b)(i)
above cannot be located, the obligations of the Depositor to deliver such
documents shall be deemed to be satisfied upon delivery to the Trustee or the
Custodian of a photocopy of such Mortgage Note, if available, with a lost note
affidavit and indemnity. If any of the original Mortgage Notes for which a
lost note affidavit and indemnity was delivered to the Trustee or the
Custodian is subsequently located, such original Mortgage Note shall be
delivered to the Trustee or the Custodian within three Business Days.
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(c) The Trustee is authorized to appoint any bank or trust company
approved by the Depositor as Custodian of the documents or instruments
referred to in this Section 2.01, and to enter into a Custodial Agreement for
such purpose and any documents delivered thereunder shall be delivered to the
Custodian and any Officer's Certificates delivered with respect thereto shall
be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that
the conveyance of the Mortgage Loans by the Depositor to the Trustee as
provided in this Section 2.01 be, and be construed as, a sale of the Mortgage
Loans by the Depositor to the Trustee. It is, further, not the intention of
the parties to this Agreement that such conveyance be deemed a pledge of the
Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties to this Agreement, the Mortgage Loans are held to be the
property of the Depositor, or if any for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans then (a)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code; (b) the
conveyance provided for in this Section 2.01 shall be deemed to be a grant by
the Depositor to the Trustee for the benefit of the Certificateholders of a
security interest in all of the Depositor's right, title and interest in and
to the Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, whether in the form of cash, instruments, securities or other
property; (c) the possession by the Trustee or any Custodian of such items of
property and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "in possession by
the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the New York Uniform Commercial Code; and (d)
notifications to persons holding such property, and acknowledgments, receipts
or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Trustee for
the benefit of the Certificateholders for the purpose of perfecting such
security interest under applicable law (except that nothing in this clause (d)
shall cause any person to be deemed to be an agent of the Trustee for any
purpose other than for perfection of such security interests unless, and then
only to the extent, expressly appointed and authorized by the Trustee in
writing). The Depositor and the Trustee, upon directions from the Depositor,
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement.
SECTION 2.02 Acceptance by the Trustee.
(a) The Trustee acknowledges receipt of the documents identified in
the Trust Receipt and Initial Certification in the form annexed hereto as
Exhibit I and declares that it holds and will hold such documents and the
other documents delivered to it constituting the Mortgage Files, and that it
holds or will hold such other assets as are included in the Trust Fund, in
trust for
49
the exclusive use and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the Mortgage
Notes in the State of Illinois or the State of Texas, unless otherwise
permitted by the Rating Agencies.
The Trustee or the Custodian agrees to execute and deliver on the
Closing Date to the Depositor, the Master Servicer, each Seller and the Trust
Administrator a Trust Receipt and Initial Certification in the form annexed
hereto as Exhibit I. Based on its review and examination, and only as to the
documents identified in such Trust Receipt and Initial Certification, the
Trustee or the Custodian acknowledges that such documents appear regular on
their face and relate to such Mortgage Loan. The Trustee or the Custodian
shall be under no duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the
same are genuine, enforceable or appropriate for the represented purpose or
that they have actually been recorded in the real estate records or that they
are other than what they purport to be on their face.
Not later than 90 days after the Closing Date, the Trustee or the
Custodian shall deliver to the Depositor, the Master Servicer, each Seller and
Servicer and the Trust Administrator a Trust Receipt and Final Certification
in the form annexed hereto as Exhibit J, with any applicable exceptions noted
thereon.
If, in the course of such review, the Trustee or the Custodian finds
any document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, the Trustee or the Custodian shall list such as
an exception in the Trust Receipt and Final Certification; provided, however,
that the Trustee or the Custodian shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and
to that Mortgage Note or (ii) any assignment is in recordable form or is
sufficient to effect the assignment of and transfer to the assignee thereof
under the mortgage to which the assignment relates.
The Seller shall promptly correct or cure such defect within 90 days
from the date it was so notified of such defect and, if the Seller does not
correct or cure such defect within such period, the Seller shall either (a)
substitute for the related Mortgage Loan a Qualified Substitute Mortgage Loan,
which substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.03, or (b) purchase such Mortgage Loan from
the Trustee or the Custodian within 90 days from the date the Seller was
notified of such defect in writing at the Purchase Price of such Mortgage
Loan; or such longer period not to exceed 720 days from the Closing Date if
the substitution or repurchase of a Mortgage Loan pursuant to this provision
is required by reason of a delay in delivery of any documents by the
appropriate recording office; provided, however, that a Seller shall have no
liability for recording any Assignment of Mortgage in favor of the Trustee or
for the Trustee's failure to record such Assignment of Mortgage, and provided,
further, that no Seller shall be obligated to repurchase or cure any Mortgage
Loan solely as a result of the Trustee's failure to record such Assignment of
Mortgage. The Trustee shall deliver written notice to each Rating Agency
within 270 days from the Closing Date indicating each Mortgage Loan (a) for
which a mortgage or assignment of mortgage required to be recorded hereunder
has not been returned by the appropriate recording office or (b) as to which
there is a dispute as to location or status of such Mortgage Loan. Such notice
shall be delivered every 90 days thereafter until the related Mortgage Loan is
returned to the
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Trustee. Any such substitution pursuant to (a) above or purchase pursuant to
(b) above shall not be effected prior to the delivery to the Trustee and the
Trust Administrator of the Opinion of Counsel required by Section 2.05 hereof,
if any, and any substitution pursuant to (a) above shall not be effected prior
to the additional delivery to the Trustee or the Trust Administrator of a
Request for Release substantially in the form of Exhibit K. No substitution is
permitted to be made in any calendar month after the Determination Date for
such month. The Purchase Price for any such Mortgage Loan shall be deposited
by the Seller in the Certificate Account on or prior to the Business Day
immediately preceding such Distribution Date in the month following the month
of repurchase and, upon receipt of such deposit and certification with respect
thereto in the form of Exhibit K hereto, the Trustee or the Custodian shall
release the related Mortgage File to the Seller and shall execute and deliver
at such entity's request such instruments of transfer or assignment prepared
by such entity, in each case without recourse, as shall be necessary to vest
in such entity, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto.
(b) It is understood and agreed that the obligation of each Seller
to cure, substitute for or to repurchase any Mortgage Loan which does not meet
the requirements of Section 2.01 shall constitute the sole remedy respecting
such defect available to the Trustee, the Trust Administrator, the Depositor
and any Certificateholder against the Seller.
SECTION 2.03 Representations and Warranties of the Seller, Master
Servicer and Servicers.
(a) Each of DLJMC, in its capacity as Seller, CMMC, in its capacity
as Master Servicer, HomeSide, in its capacity as Servicer, 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, IIC or IID, as
applicable hereto, and by this reference incorporated herein, to the
Depositor, the Trustee and the Trust Administrator, as of the Closing Date, or
if so specified therein, as of the Cut-off Date or such other date as may be
specified. In addition, each of HomeSide, in its capacity as Servicer, and
Vesta, in its capacity as Servicer and Special Servicer, makes the
representations and warranties applicable to it set forth in Schedule IIC or
IID, as applicable hereto, and by this reference incorporated herein, to the
Master Servicer as of the Closing Date, or if so specified therein, as of the
Cut-off Date or such other date as may be specified.
(b) DLJMC, in its capacity as Seller, hereby makes the
representations and warranties set forth in Schedule III applicable to the
Mortgage Loans and by this reference incorporated herein, to the Depositor,
the Trustee and the Trust Administrator, as of the Closing Date, or if so
specified therein, as of the Cut-off Date or such other date as may be
specified.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Each Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made by it pursuant to Section
2.03(b) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan sold by the Seller to the
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Trust, it shall cure such breach in all material respects, and if such breach
is not so cured, shall, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Qualified
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below; provided, however, that any such substitution pursuant to (i) above
shall not be effected prior to the delivery to the Trustee and the Trust
Administrator of the Opinion of Counsel required by Section 2.05 hereof, if
any, and any such substitution pursuant to (i) above shall not be effected
prior to the additional delivery to the Trustee or the Trust Administrator of
a Request for Release substantially in the form of Exhibit K relating to the
Deleted Mortgage Loan and the Mortgage File for any such Qualified Substitute
Mortgage Loan. The Seller shall promptly reimburse the Trustee and the Trust
Administrator for any actual out-of-pocket expenses reasonably incurred by the
Trustee and the Trust Administrator in respect of enforcing the remedies for
such breach. With respect to any representation and warranties described in
this Section which are made to the best of a Seller's knowledge if it is
discovered by either the Depositor, the Master Servicer, the Seller, any
Servicer, the Special Servicer, the Trustee or the Trust Administrator that
the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein, notwithstanding the
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
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 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 Seller shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan. The
Seller shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and
the substitution of the Qualified Substitute Mortgage Loan or Loans and the
Seller shall deliver the amended Mortgage Loan Schedule to the Trustee, the
Servicer and the Trust Administrator. Upon such substitution, the Qualified
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Qualified Substitute Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to Section
2.03(b) with respect to such Mortgage Loan. Upon any such substitution and the
deposit to the Collection Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee or the Custodian, as applicable, shall release the
Mortgage File held for the benefit of the Certificateholders relating to such
Deleted Mortgage Loan to the Seller and shall execute and deliver at the
Seller's direction such instruments of
52
transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its designee, the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to
this Section 2.03.
For any month in which a Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master
Servicer shall determine the amount (if any) by which the aggregate principal
balance of all such Qualified Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of the scheduled principal portion
of the monthly payments due in the month of substitution). The amount of such
shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be deposited in the Collection Account by the Seller on or before
the Business Day immediately preceding the Distribution Date in the month
succeeding the calendar month during which the related Mortgage Loan became
required to be repurchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Collection Account on or
before the Business Day immediately preceding the Distribution Date in the
month following the month during which the Seller became obligated hereunder
to repurchase or replace such Mortgage Loan and upon such deposit of the
Purchase Price, the delivery of the Opinion of Counsel if required by Section
2.05 and receipt of a Request for Release in the form of Exhibit K hereto, the
Trustee, the Trust Administrator or the Custodian, as applicable, shall
release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment prepared
by such Person, in each case without recourse, as shall be necessary to
transfer title from the Trustee. It is understood and agreed that the
obligation under this Agreement of any Person to cure, repurchase or
substitute any Mortgage Loan as to which a breach has occurred and is
continuing shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Trustee or the
Trust Administrator on their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee,
the Trust Administrator or the Custodian for the benefit of the
Certificateholders.
SECTION 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans that, as of the Closing Date, assuming good
title has been conveyed to the Depositor, the Depositor had good title to the
Mortgage Loans and Mortgage Notes, and did not encumber the Mortgage Loans
during its period of ownership thereof, other than as contemplated by the
Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the Mortgage Files to
the Trustee.
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SECTION 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 shall be made more than 90 days after
the Closing Date unless the Seller delivers to the Trustee and the Trust
Administrator an Opinion of Counsel, which Opinion of Counsel shall not be at
the expense of any of the Trustee, the Trust Administrator or the Trust Fund,
addressed to the Trustee and the Trust Administrator, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively, or (ii)
cause the REMIC hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
SECTION 2.06 Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
together with the assignment to it of all other assets included in the Trust
Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trust Administrator,
pursuant to the written request of the Depositor executed by an officer of the
Depositor, has executed the Certificates and caused them to be authenticated
and delivered to or upon the order of the Depositor in authorized
denominations which evidence ownership of the Trust Fund. The rights of the
Holders of such Certificates to receive distributions from the Trust Fund and
all ownership interests of the Holders of the Certificates in such
distributions shall be as set forth in this Agreement.
SECTION 2.07 REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trust
Administrator to treat the Trust Fund as four separate REMICs (the "REMIC")
under the Code and, if necessary, under applicable state law. Each such
election will be made on Form 1066 or other appropriate federal tax or
information return (including Form 8811) or any appropriate state return (x)
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued and (y) for the taxable year ending on the last day of
the calendar year in which Certificates are first sold to a third party. The
Closing Date is hereby designated as the "startup day" of each REMIC within
the meaning of Section 860G(a)(9) of the Code. The "regular interests" (within
the meaning of Section 860G of the Code) in the Master REMIC shall consist of
the Regular Certificates and the "Class AR Certificates shall represent the
beneficial ownership of the "residual interest" in each REMIC. Neither the
Depositor nor the Trust Administrator nor the Trustee shall permit the
creation of any "interests" (within the meaning of Section 860G of the Code)
in any REMIC other than the Certificates.
(b) The Trust Administrator on behalf of the Holders of the Class AR
Certificates, shall act as agent for the Class AR Certificateholder as the
"tax matters person" (within the meaning of the REMIC Provisions) for each
REMIC, in the manner provided under Treasury regulations section 1.860F-4(d)
and temporary Treasury regulations section 301.6231(a)(7)-1T. By its
acceptance of a Class AR Certificate, each Holder thereof shall have agreed to
such
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appointment and shall have consented to the appointment of the Trust
Administrator as its agent to act on behalf of each REMIC pursuant to the
specific duties outlined herein.
(c) A Holder of the Class AR Certificates, by the purchase of such
Certificates, shall be deemed to have agreed to timely pay, upon demand by the
Trust Administrator, the amount of any minimum California state franchise
taxes due with respect to each REMIC under Sections 23151(a) and 23153(a) of
the California Revenue and Taxation Code. Notwithstanding the foregoing, the
Trust Administrator shall be authorized to retain the amount of such tax from
amounts otherwise distributable to such Holder in the event such Holder does
not promptly pay such amount upon demand by the Trust Administrator. In the
event that any other federal, state or local tax is imposed, including without
limitation taxes imposed on a "prohibited transaction" of a REMIC as defined
in Section 860F of the Code, such tax shall be charged against amounts
otherwise available for distribution to the applicable Holder of a Class AR
Certificate and then against amounts otherwise available for distribution to
the Holders of Regular Certificates in accordance with the provisions set
forth in Section 4.01. The Trust Administrator shall promptly deposit in the
Certificate Account any amount of "prohibited transaction" tax that results
from a breach of the Trust Administrator's duties under this Agreement. The
Master Servicer or the related Servicer shall promptly deposit in the
Certificate Account any amount of "prohibited transaction" tax that results
from a breach of the Master Servicer's or such Servicer's duties under this
Agreement.
(d) The Trust Administrator shall act as attorney-in-fact and as
agent on behalf of the tax matters person of each REMIC and in such capacity
the Trust Administrator shall: (i) prepare, sign and file, or cause to be
prepared, signed and filed, federal and state tax returns using a calendar
year as the taxable year for each REMIC when and as required by the REMIC
Provisions and other applicable federal income tax laws as the direct
representative of each such REMIC in compliance with the Code and shall
provide copies of such returns as required by the Code; (ii) make an election,
on behalf of each REMIC, to be treated as a REMIC on the federal tax return of
such REMIC for its first taxable year, in accordance with the REMIC
Provisions; and (iii) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to any governmental taxing authority
all information reports as and when required to be provided to them in
accordance with the REMIC Provisions. The expenses of preparing and filing
such returns shall be borne by the Trust Administrator. The Depositor, the
Master Servicer and the related Servicer shall provide on a prompt and timely
basis to the Trust Administrator or its designee such information with respect
to each REMIC as is in their possession and reasonably required or requested
by the Trust Administrator to enable it to perform its obligations under this
subsection.
In its capacity as attorney-in-fact and as agent on behalf of the
tax matters person, the Trust Administrator shall also: (A) act on behalf of
each REMIC in relation to any tax matter or controversy involving the Trust
Fund, (B) represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto and (C) cause to be paid solely from the
sources provided herein the amount of any taxes imposed on each REMIC when and
as the same shall be due and payable (but such obligation shall not prevent
the Trust Administrator or any other appropriate Person from contesting any
such tax in appropriate proceedings and shall not prevent the Trust
Administrator
55
from withholding payment of such tax, if permitted by law, pending the outcome
of such proceedings).
(e) The Trust Administrator shall provide (i) to any transferor of a
Class AR Certificate such information as is necessary for the application of
any tax relating to the transfer of a Class AR Certificate to any Person who
is not a permitted transferee, (ii) to the Certificateholders such information
or reports as are required by the Code or the REMIC Provisions including
reports relating to interest, original issue discount and market discount or
premium and (iii) to the Internal Revenue Service the name, title, address and
telephone number of the person who will serve as the representative of each
REMIC.
(f) The Trustee, to the extent directed by the Trust Administrator,
the Depositor and the Holder of the Class AR Certificates shall take any
action or cause the Trust Fund to take any action necessary to create or
maintain the status of each REMIC as a REMIC under the REMIC Provisions and
shall assist each other as necessary to create or maintain such status.
Neither the Trustee, to the extent directed by the Trust Administrator, nor
the Holder of the Class AR Certificates shall take any action, cause the Trust
Fund to take any action or fail to take (or fail to cause the Trust Fund to
take) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of each REMIC as a REMIC or
(ii) result in the imposition of a tax upon a REMIC (including, but not
limited to, the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth in Section
860G(d) of the Code) (either such event, an "Adverse REMIC Event") unless the
Trustee and the Trust Administrator have received an Opinion of Counsel (at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition
of such a tax.
The Trustee and the Trust Administrator shall not take or fail to
take any action (whether or not authorized hereunder) as to which the Master
Servicer, a Servicer or the Depositor has advised it in writing that it has
received an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. In addition, prior to taking any action
with respect to a REMIC or their assets, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Trustee and the Trust Administrator will consult with
the Master Servicer, the Servicers and the Depositor or their designees, in
writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC created hereunder and the Trustee and
the Trust Administrator shall not take any such action or cause that REMIC to
take any such action as to which the Master Servicer, any Servicer or the
Depositor has advised it in writing that an Adverse REMIC Event could occur.
In addition, prior to taking any action with respect to any REMIC
created hereunder or the assets therein, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Holder of the Class AR Certificates will consult with
the Trust Administrator or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
REMIC created hereunder, and no such Person shall take any action or cause the
Trust Fund to take any such action as to which the Trustee or the Trust
Administrator has advised it in writing that an Adverse REMIC Event could
occur. The Trustee and the Trust Administrator may consult with
56
counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take action not permitted by this Agreement.
At all times as may be required by the Code, the Trust Administrator
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of the
REMICs as "qualified mortgages" as defined in Section 860G(a)(3) of the Code
and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of a REMIC, as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of such REMIC, as defined in Section
860G(c) of the Code, on any contributions to a REMIC after the Startup Day
therefor pursuant to Section 860G(d) of the Code, or any other tax is imposed
by the Code or any applicable provisions of state or local tax laws, such tax
shall be charged (i) to the Master Serivcer or a Servicer, if such tax arises
out of or results from a breach by the Master Servicer or such Servicer of any
of its obligations under this Agreement or if the Master Servicer or such
Servicer has in its sole discretion determined to indemnify the Trust Fund
against such tax, (ii) to the Trust Administrator, if such tax arises out of
or results from a breach by the Trust Administrator of any of its obligations
under this Article II, (iii) to the Trustee, if such tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Article II, or (iv) otherwise against amounts on deposit in the Collection
Account as provided by Section 3.08 and on the Distribution Date(s) following
such reimbursement the aggregate of such taxes shall be allocated in reduction
of the Interest Distribution Amount on each Class entitled thereto in the same
manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trust Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and
on an accrual basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, none of any Servicer, the Trustee or
the Trust Administrator shall accept any contributions of assets to any REMIC
created hereunder unless (subject to Section 2.05) such Servicer, the Trustee
or the Trust Administrator shall have received an Opinion of Counsel (at the
expense of the party seeking to make such contribution) to the effect that the
inclusion of such assets in a REMIC will not cause that REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding, or
subject that REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) None of any Servicer, the Trustee or the Trust Administrator
shall (subject to Section 2.05) enter into any arrangement by which a REMIC
will receive a fee or other compensation for services nor permit such REMIC to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in
Section 860G(a)(5) of the Code.
(k) Within 30 days after the Closing Date, the Trust Administrator
shall prepare and file with the Internal Revenue Service Form 8811,
"Information Return for Real Estate
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Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations" for each REMIC.
(l) None of the Trustee, the Trust Administrator, the Master
Servicer or any Servicer shall sell, dispose of or substitute for any of the
Mortgage Loans (except in connection with (i) the default, imminent default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition
or sale of a Mortgaged Property acquired by deed in lieu of foreclosure, (ii)
the bankruptcy of any REMIC created hereunder, (iii) the termination of any
REMIC created hereunder pursuant to Article X of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement)
nor acquire any assets for a REMIC, nor sell or dispose of any investments in
the Collection Account or the Certificate Account for gain nor accept any
contributions to a REMIC after the Closing Date (a) unless it has received an
Opinion of Counsel that such sale, disposition, substitution or acquisition
will not affect adversely the status of any REMIC created hereunder as a REMIC
or (b) unless the Master Servicer or such Servicer has determined in its sole
discretion to indemnify the Trust Fund against such tax.
(m) In order to enable the Trustee and the Trust Administrator to
perform their duties as set forth herein, the Depositor shall provide, or
cause to be provided to the Trustee and the Trust Administrator, within ten
days after the Closing Date, all information or data that the Trustee and the
Trust Administrator determine to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans and the Trustee and the Trust
Administrator shall be entitled to rely upon any and all such information and
data in the performance of its duties set forth herein. Thereafter, the Master
Servicer shall provide, promptly upon request therefor, any such additional
information or data that the Trustee or the Trust Administrator may from time
to time reasonably request in order to enable the Trustee and the Trust
Administrator to perform their duties as set forth herein and the Trustee and
the Trust Administrator shall be entitled to rely upon any and all such
information and data in the performance of its duties set forth herein. DLJMC
shall indemnify the Trustee and the Trust Administrator and hold its harmless
for any loss, liability, damage, claim or expense of the Trustee and the Trust
Administrator arising from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee and the
Trust Administrator on a timely basis. The Master Servicer shall indemnify the
Trustee and the Trust Administrator and hold it harmless for any loss,
liability, damage, claim or expense of the Trustee and the Trust Administrator
arising from any failure of the Master Servicer to provide, or to cause to be
provided, accurate information or data required to be provided by the Master
Servicer to the Trustee and the Trust Administrator on a timely basis;
provided, however, that if any Servicer shall fail to provide such information
to the Master Servicer upon timely request for such information by the Master
Servicer, that Servicer shall indemnify the Master Servicer, the Trustee and
the Trust Administrator and hold it harmless for any loss, liability, damage,
claim or expense of the Master Servicer, the Trustee and the Trust
Administrator arising from any failure of that Servicer to provide, or to
cause to be provided, the information referred to above on a timely basis. The
indemnification provisions hereunder shall survive the termination of this
Agreement and shall extend to any co-trustee and co-trust administrator
appointed pursuant to this Agreement.
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(n) The Trust Administrator shall treat the Basis Risk Reserve Fund
as an outside reserve fund within the meaning of Treasury Regulation
1.860G-2(h) that is owned by the Class IV-X Certificateholders and that is not
an asset of the REMIC. The Trust Administrator shall account for the rights of
the Class IV-A, Class IV-M-1, Class IV-M-2 and Class IV-B Certificateholders
to receive payments from the Basis Risk Reserve Fund as rights in an interest
rate cap contract written by the Class IV-X Certificateholders in favor of the
Class IV-A, Class IV-M-1, Class IV-M-2 and Class IV-B Certificateholders and
not as an obligation of the Master REMIC, whose obligation to pay such
Certificates will be subject to a cap equal to the Net Funds Cap and shall
account for such rights as property held separate and apart from the regular
interests as required by Treasury regulation section 1.860G-2(i). Thus each
Class IV-A, Class IV-M-1, Class IV-M-2 and Class IV-B Certificate shall be
treated as representing ownership of not only Master REMIC regular interests,
but also ownership of an interest in an interest rate cap contract. Each Class
IV-X Certificate shall represent an obligation under an interest rate cap
contract. For purposes of determining the issue price of Master REMIC regular
interests, the Trust Administrator shall assume that the interest rate cap
contract has a value of $1,000.
SECTION 2.08 Covenants of the Master Servicer and each Servicer.
The Master Servicer and each Servicer, severally and not jointly,
hereby covenants to the Depositor, the Trustee and the Trust Administrator as
follows:
(a) Such Servicer or the Master Servicer shall comply in the
performance of its obligations under this Agreement with all reasonable rules
and requirements of the insurer under each Mortgage Guaranty Insurance Policy;
and
(b) No written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor, the Trustee or the Trust Administrator and
prepared by the Master Servicer or such Servicer pursuant to this Agreement
will contain any untrue statement of a material fact.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 Master Servicer and Servicers to Service Mortgage
Loans.
For and on behalf of the Certificateholders, as independent
contractors of the Trustee, the Master Servicer and each Servicer, severally
and not jointly, shall service and administer the Mortgage Loans in accordance
with the terms of this Agreement and with Accepted Servicing Practices. The
obligations of each of HomeSide and Vesta hereunder to service and administer
the Mortgage Loans shall be limited to the HomeSide Serviced Loans and the
Vesta Serviced Loans, respectively; and with respect to the duties and
obligations of each Servicer, references herein to related "Mortgage Loans"
shall be limited to the HomeSide Serviced Loans (and the related proceeds
thereof and related REO Properties), in the case of HomeSide and the Vesta
Serviced 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, the Master Servicer and
each Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02 hereof, to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof (i) to execute and deliver, on behalf
of the Certificateholders and the Trustee, customary consents or waivers and
other instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds, and (iv) to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided that neither the Master Servicer nor a Servicer shall
take any action that is inconsistent with or prejudices the interests of the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee, the Trust Administrator or the
Certificateholders under this Agreement. The Master Servicer and each Servicer
shall represent and protect the interests of the Trust Fund in the same manner
as it protects its own interests in mortgage loans in its own portfolio in any
claim, proceeding or litigation regarding a Mortgage Loan, and shall not make
or permit any modification, waiver or amendment of any Mortgage Loan which
would cause any REMIC created hereunder to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code. Without limiting the generality of the foregoing, the Master
Servicer and each Servicer, in its own name or in the name of the Depositor
and the Trustee, is hereby authorized and empowered by the Depositor, the
Trustee and the Trust Administrator, when the Master Servicer or such Servicer
believes it appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Trust Administrator, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans, and with respect
to the Mortgaged Properties held for the benefit of the Certificateholders.
The Master Servicer and each Servicer shall prepare and deliver to the
Depositor and/or the Trustee and/or the Trust Administrator such
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documents requiring execution and delivery by either or both of them as are
necessary or appropriate to enable the Master Servicer or such Servicer to
service and administer the Mortgage Loans to the extent that the Master
Servicer or such Servicer is not permitted to execute and deliver such
documents pursuant to the preceding sentence. Upon receipt of such documents,
the Depositor and/or the Trustee or the Trust Administrator shall execute such
documents and deliver them to the Master Servicer or such Servicer.
In accordance with the standards of the preceding paragraph and
unless determined in good faith to be a Nonrecoverable Advance, the Master
Servicer and each Servicer shall advance or cause to be advanced funds as
necessary for the purpose of effecting the payment of taxes and assessments on
the Mortgaged Properties, which advances constitute Servicing Advances and
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.06, and further as provided in Section 3.08.
The costs incurred by the Master Servicer or a Servicer, if any, in effecting
the timely payments of taxes and assessments on the Mortgaged Properties and
related insurance premiums shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the Stated Principal
Balances of the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
The Master Servicer and each Servicer hereby acknowledges that, to
the extent the Master Servicer or such Servicer has previously serviced some
or all of the Mortgage Loans pursuant to another servicing agreement, the
provisions contained in this Agreement shall supersede the provisions
contained in such other servicing agreement from and after the Closing Date.
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer on behalf
of the Master Servicer or the related Servicer in accordance with the
servicing provisions of this Agreement, provided that the Subservicer is a
FNMA-approved lender or a FHLMC seller/servicer in good standing. The Master
Servicer and each Servicer may perform any of its servicing responsibilities
hereunder or may cause the Subservicer to perform any such servicing
responsibilities on its behalf, but the use by the Master Servicer or such
Servicer of the Subservicer shall not release the Master Servicer or such
Servicer from any of its obligations hereunder and the Master Servicer or such
Servicer shall remain responsible hereunder for all acts and omissions of the
Subservicer as fully as if such acts and omissions were those of such
Servicer. The Master Servicer and each Servicer shall pay all fees and
expenses of any Subservicer engaged by the Master Servicer or such Servicer
from its own funds.
Notwithstanding the foregoing, the Master Servicer and each Servicer
shall be entitled to outsource one or more separate servicing functions to a
Person (each, an "Outsourcer") that does not meet the eligibility requirements
for a Subservicer, so long as such outsourcing does not constitute the
delegation of the Master Servicer's or such Servicer's obligation to perform
all or substantially all of the servicing of the related Mortgage Loans to
such Outsourcer. In such event, the use by the Master Servicer or a Servicer
of any such Outsourcer shall not release the Master Servicer or the related
Servicer from any of its
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obligations hereunder and the Master Servicer or such Servicer shall remain
responsible hereunder for all acts and omissions of such Outsourcer as fully
as if such acts and omissions were those of such Servicer, and the Master
Servicer or such Servicer shall pay all fees and expenses of the Outsourcer
from such Servicer's own funds.
(b) At the cost and expense of the Master Servicer or a Servicer,
without any right of reimbursement from the Depositor, the Trustee, the Trust
Administrator or the applicable Collection Account, the Master Servicer or
such Servicer shall be entitled to terminate the rights and responsibilities
of its Subservicer and arrange for any servicing responsibilities to be
performed by a successor Subservicer meeting the requirements set forth in
Section 3.02(a), provided, however, that nothing contained herein shall be
deemed to prevent or prohibit the Master Servicer or such Servicer, at the
Master Servicer's or such Servicer's option, from electing to service the
related Mortgage Loans itself. In the event that the Master Servicer or a
Servicer's responsibilities and duties under this Agreement are terminated
pursuant to Section 8.01, and if requested to do so by the Trustee or Trust
Administrator, the Master Servicer or such Servicer shall, at its own cost and
expense terminate the rights and responsibilities of its Subservicer as soon
as is reasonably possible. The Master Servicer and each Servicer shall pay all
fees, expenses or penalties necessary in order to terminate the rights and
responsibilities of its Subservicer from such Servicer's own funds without any
right of reimbursement from the Depositor, Trustee, Trust Administrator, or
the applicable Collection Account.
(c) Notwithstanding any of the provisions of this Agreement relating
to agreements or arrangements between the Master Servicer or a Servicer and
its Subservicer, the Master Servicer or a Servicer and its Outsourcer, or any
reference herein to actions taken through the Subservicer, the Outsourcer, or
otherwise, neither the Master Servicer nor the related Servicer shall be
relieved of its obligations to the Depositor, Trustee, the Trust Administrator
or Certificateholders and shall be obligated to the same extent and under the
same terms and conditions as if it alone were servicing and administering the
related Mortgage Loans. The Master Servicer and each Servicer shall be
entitled to enter into an agreement with its Subservicer and Outsourcer for
indemnification of the Master Servicer or such Servicer or Outsourcer, as
applicable, by such Subservicer and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
For purposes of this Agreement, the Master Servicer or a Servicer
shall be deemed to have received any collections, recoveries or payments with
respect to the related Mortgage Loans that are received by a related
Subservicer regardless of whether such payments are remitted by the
Subservicer to the Master Servicer or such Servicer.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving a Subservicer shall be deemed to be
between the Subservicer, and the Master Servicer or the related Servicer
alone, and the Depositor, the Trustee, the Trust Administrator and the other
Servicers and the Special Servicer shall have no obligations, duties or
liabilities with respect to a Subservicer including no obligation, duty or
liability of the Depositor, Trustee, the Trust Administrator, the Special
Servicer or other Servicers to pay a Subservicer's fees and expenses.
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SECTION 3.03 Notification of Adjustments.
With respect to each Mortgage Loan, the Master Servicer or the
related Servicer shall adjust the Mortgage Rate on the related Adjustment Date
in compliance with the requirements of applicable law and the related Mortgage
and Mortgage Note. The Master Servicer or the related Servicer shall execute
and deliver any and all necessary notices required under applicable law and
the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Rate adjustments. Upon the discovery by the Master Servicer or the related
Servicer or the receipt of notice from the Trust Administrator that the Master
Servicer or such Servicer has failed to adjust a Mortgage Rate in accordance
with the terms of the related Mortgage Note, the Master Servicer or such
Servicer shall immediately deposit in the Certificate Account from its own
funds the amount of any interest loss or deferral caused the Trust
Administrator thereby.
SECTION 3.04 Trust Administrator to Act as Master Servicer or
Servicer.
In the event that (A) the Master Servicer shall for any reason no
longer be Master Servicer hereunder or (B) any Servicer shall for any reason
no longer be a Servicer hereunder and the Master Servicer shall for any reason
no longer be Master Servicer hereunder (including, in each case, by reason of
an Event of Default), the Trust Administrator or its successor shall thereupon
assume all of the rights and obligations of the Master Servicer or such
Servicer hereunder arising thereafter (except that the Trust Administrator
shall not be (i) liable for losses of the Master Servicer or such Servicer
pursuant to Section 3.09 hereof or any acts or omissions of the related
predecessor the Master Servicer or such Servicer hereunder, (ii) obligated to
make Advances if it is prohibited from doing so by applicable law, (iii)
obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder including, but not limited to, repurchases or substitutions of
Mortgage Loans pursuant to Section 2.02 or 2.03 hereof or (iv) deemed to have
made any representations and warranties of the Master Servicer or such
Servicer hereunder). Any such assumption shall be subject to Section 8.02
hereof.
The Master Servicer and each Servicer shall, upon request of the
Trust Administrator, but at the expense of the Master Servicer or such
Servicer, deliver to the assuming party all documents and records relating to
each Subservicing Agreement or substitute Subservicing Agreement and the
Mortgage Loans then being serviced thereunder and hereunder by the Master
Servicer or such Servicer and an accounting of amounts collected or held by it
and otherwise use its best efforts to effect the orderly and efficient
transfer of the Subservicing Agreement or substitute Subservicing Agreement to
the assuming party.
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account.
(a) Continuously from the date hereof until the principal and
interest on all Mortgage Loans have been paid in full or such Mortgage Loans
have become Liquidated Mortgage Loans, the Master Servicer and each Servicer
shall proceed in accordance with Accepted Servicing Practices to collect all
payments due under each of the related Mortgage Loans when the same shall
become due and payable to the extent consistent with this Agreement and the
terms and provisions of any related Mortgage Guaranty Insurance Policy and
shall take special care with respect to Mortgage Loans for which the Master
Servicer or a Servicer collects
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escrow payments in ascertaining and estimating Escrow Payments and all other
charges that will become due and payable with respect to the Mortgage Loans
and the Mortgaged Properties, to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable. Consistent with the foregoing, in connection with Mortgage Loans
which it is directly servicing, the Master Servicer or each Servicer may in
its discretion (i) waive any late payment charge or any prepayment charge or
penalty interest in connection with the prepayment of a Mortgage Loan and (ii)
extend the due dates for payments due on a Mortgage Note for a period not
greater than 180 days; provided, however, that neither the Master Servicer nor
such Servicer can extend the maturity of any such Mortgage Loan past the date
on which the final payment is due on the latest maturing Mortgage Loan as of
the Cut-off Date. In the event of any such arrangement, the Master Servicer or
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. Neither the Master
Servicer nor any Servicer shall be required to institute or join in litigation
with respect to collection of any payment (whether under a Mortgage, Mortgage
Note or otherwise or against any public or governmental authority with respect
to a taking or condemnation) if it reasonably believes that enforcing the
provision of the Mortgage or other instrument pursuant to which such payment
is required is prohibited by applicable law.
(b) The Master Servicer and each Servicer shall segregate and hold
all funds collected and received pursuant to a Mortgage Loan separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Collection Accounts, in the form of time deposit or
demand accounts, titled "[Master] Servicer's name], in trust for the Holders
of Credit Suisse First Boston Mortgage Securities Corp., Mortgage-Backed
Pass-Through Certificates, Series 2001-AR24" or, if established and maintained
by a Subservicer on behalf of the Master Servicer or a Servicer,
"[Subservicer's name], in trust for [Servicer's name]" or "[Subservicer's
name], as agent, trustee and/or bailee of principal and interest custodial
account for [Servicer's name], its successors and assigns, for various owners
of interest in [Servicer's name] mortgage-backed pools. In the event that a
Subservicer employs a subservicer, the Collection Account shall be titled
"[name of Subservicer's subservicer], in trust for [Subservicer's name]." Each
Collection Account shall be an Eligible Account acceptable to the Depositor,
the Trust Administrator and Trustee. Funds deposited in a Collection Account
may be drawn on by the Master Servicer or the related Servicer in accordance
with Section 3.08. Any funds deposited in a Collection Account shall either be
invested in Eligible Investments or at all times be fully insured to the full
extent permitted under applicable law. The creation of any Collection Account
shall be evidenced by a certification in the form of Exhibit Q-1 hereto, in
the case of an account established with such Master Servicer or Servicer, or
by a letter agreement in the form of Exhibit Q-2 hereto, in the case of an
account held by a depository other than the related Master Servicer or
Servicer. A copy of such certification or letter agreement shall be furnished
to the Depositor and Trustee.
(c) The Master Servicer and each Servicer shall deposit in the
applicable Collection Account on a daily basis, unless otherwise indicated,
and retain therein, the following collections remitted by Subservicers or
payments received by the Master Servicer or such
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Servicer and payments made by the Master Servicer or such Servicer subsequent
to the Cut-off Date, other than payments of principal and interest due on or
before the Cut-off Date:
(i) all payments on account of principal on the related Mortgage
Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the related Mortgage
Loans adjusted to the per annum rate equal to the Mortgage Rate reduced
by the sum of the related Expense Fee Rate, as applicable;
(iii) all Liquidation Proceeds on the related Mortgage Loans;
(iv) all Insurance Proceeds on the related Mortgage Loans including
amounts required to be deposited pursuant to Section 3.09 (other than
proceeds to be held in the Escrow Account and applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor in
accordance with Section 3.09);
(v) all Advances made by the Master Servicer or such Servicer
pursuant to Section 5.01;
(vi) no later than the withdrawal from the Collection Account
pursuant to Section 3.08(a)(viii) each month, the applicable amount of
Compensating Interest for the Master Servicer or such Servicer (or if
such Servicer defaults in such obligation, the Master Servicer) for the
related Prepayment Period. The aggregate of such deposits shall be made
from the Master Servicer's or such Servicer's own funds, without
reimbursement therefor.
(vii) any amounts required to be deposited by the Master Servicer or
such Servicer in respect of net monthly income from REO Property pursuant
to Section 3.11; 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 the
Master Servicer or such Servicer into such Collection Account. In addition,
notwithstanding the provisions of this Section 3.05, the Master Servicer and
each Servicer may deduct from amounts received by it, prior to deposit to the
applicable Collection Account, any portion of any Scheduled Payment
representing the Master Servicing Fee or the applicable Servicing Fee. In the
event that the Master Servicer or a Servicer shall remit any amount not
required to be remitted, it may at any time withdraw or direct the institution
maintaining the related Collection Account to withdraw such amount from such
Collection Account, any provision herein to the contrary notwithstanding. Such
withdrawal or direction may be accomplished by delivering written notice
thereof to the Trustee or such other institution maintaining such Collection
Account which describes the amounts deposited in error in such Collection
Account. The Master Servicer and each Servicer shall maintain adequate records
with respect to all withdrawals made by it pursuant to this Section. All funds
deposited
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in a Collection Account shall be held in trust for the Certificateholders
until withdrawn in accordance with Section 3.08(a).
(d) On or prior to the Closing Date, the Trust Administrator shall
establish and maintain, on behalf of the Certificateholders, the Certificate
Account. The Trust Administrator shall, promptly upon receipt, deposit in the
Certificate Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trust Administrator pursuant to Section 3.08(a)(viii);
(ii) any amount deposited by the Trust Administrator pursuant to
Section 3.05(e) in connection with any losses on Eligible Investments;
and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
In the event that the Master Servicer shall remit to the Trust
Administrator any amount not required to be remitted, it may at any time
direct the Trust Administrator to withdraw such amount from the Certificate
Account, any provision herein to the contrary notwithstanding. Such direction
may be accomplished by delivering an Officer's Certificate to the Trust
Administrator which describes the amounts deposited in error in the
Certificate Account. All funds deposited in the Certificate Account shall be
held by the Trust Administrator in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.08(b). In no event shall the Trust Administrator incur liability for
withdrawals from the Certificate Account at the direction of the Master
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
Master Servicer or the related Servicer or the Trust Administrator,
respectively, in Eligible Investments, which shall mature not later than (i)
in the case of a Collection Account, the Cash Remittance Date, and (ii) in the
case of the Certificate Account, the Business Day immediately preceding the
Distribution Date, or on the Distribution Date, with respect to Eligible
Investments invested with an affiliate of the Trust Administrator, and, in
each case, shall not be sold or disposed of prior to its maturity. All income
and gain net of any losses realized from any such balances or investment of
funds on deposit in a Collection Account shall be for the benefit of the
Master Servicer or the related Servicer as servicing compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses
in a Collection Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Master Servicer or the related
Servicer in the related Collection Account. Neither the Trustee nor the Trust
Administrator shall be liable for the amount of any loss incurred in respect
of any investment or lack of investment of funds held in a Collection Account
and made in accordance with this Section 3.05. All income and gain net of any
losses realized from any such investment of funds on deposit in the
Certificate Account shall be for the benefit of the Trust Administrator as
compensation and shall be remitted to it monthly as provided herein. The
amount of any realized losses in the Certificate Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
Trust Administrator in the Certificate Account.
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(f) The Master Servicer and each Servicer shall give notice to the
Trustee, the Trust Administrator, each related Seller, each Rating Agency, and
the Depositor of any proposed change of the location of the related Collection
Account prior to any change thereof. The Trust Administrator shall give notice
to the Master Servicer and each Servicer, each Seller, each Rating Agency, the
Trustee and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof.
SECTION 3.06 Establishment of and Deposits to Escrow Accounts;
Permitted Withdrawals from Escrow Accounts; Payments of
Taxes, Insurance and Other Charges.
(a) To the extent required by the related Mortgage Note and not
violative of applicable law, the applicable Servicer shall segregate and hold
all funds collected and received pursuant to a Mortgage Loan constituting
Escrow Payments separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Escrow Accounts, in the
form of time deposit or demand accounts, titled, in the case of Servicers
other than Vesta, "Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24", in the case of
Vesta, "Vesta Servicing, L.P., as Trustee for Credit Suisse First Boston
Mortgage Securities Corp. Mortgage-Backed Pass-Through Certificates, Series
2001-AR24" or, if established and maintained by a Subservicer on behalf of the
Master Servicer or a Servicer, "[Subservicer's name], in trust for [Servicer's
name]" or "[Subservicer's name], as agent, trustee and/or bailee of taxes and
insurance custodial account for [Servicer's name], its successors and assigns,
for various owners of interest in [Servicer's name] mortgage-backed pools. In
the event that a Subservicer employs a subservicer, the Escrow Accounts shall
be titled "[name of Subservicer's subservicer] in trust for [Subservicer's
name]. The Escrow Accounts shall be Eligible Accounts. Funds deposited in the
Escrow Account may be drawn on by the Master Servicer or the related Servicer
in accordance with Section 3.06(d). The creation of any Escrow Account shall
be evidenced by a certification in the form of Exhibit P-1 hereto, in the case
of an account established with the Master Servicer or a Servicer, or by a
letter agreement in the form of Exhibit P-2 hereto, in the case of an account
held by a depository other than the Master Servicer or a Servicer. A copy of
such certification shall be furnished to the Depositor, the Trust
Administrator and the Trustee.
(b) Each Servicer shall deposit or cause to be deposited in its
Escrow Account or Accounts on a daily basis within two Business Days of
receipt and retain therein:
(i) all Escrow Payments collected on account of the related Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds which are to be
applied to the restoration or repair of any Mortgaged Property.
(c) 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
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be paid to the Mortgagor. To the extent required by law, the applicable
Servicer shall pay interest on escrowed funds to the Mortgagor notwithstanding
that the Escrow Account may be non-interest bearing or that interest paid
thereon is insufficient for such purposes.
(d) Withdrawals from the Escrow Account or Accounts may be made or
caused to be made by the related Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Master Servicer or such Servicer for any
Servicing Advances made by the Master Servicer or such Servicer with
respect to a related Mortgage Loan, but only from amounts received on the
related Mortgage Loan which represent late collections of Escrow Payments
thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the related Collection Account to reduce the
principal balance of the related Mortgage Loan in accordance with the
terms of the related Mortgage and Mortgage Note;
(v) for application to restore or repair of the related Mortgaged
Property in accordance with the procedures outlined in Section 3.09(e);
(vi) to pay to the related Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in such Escrow
Account; and
(vii) to clear and terminate such Escrow Account on the termination
of this Agreement.
(e) With respect to each Mortgage Loan, the applicable Servicer
shall maintain accurate records reflecting the status of ground rents and
taxes and any other item which may become a lien senior to the lien of the
related Mortgage and the status of Mortgage Guaranty Insurance Policy
premiums, and fire and hazard insurance coverage and shall obtain, from time
to time, all bills for the payment of such charges (including renewal
premiums) and shall effect or cause to be effected payment thereof prior to
the applicable penalty or termination date.
SECTION 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans; Inspections.
(a) The Master Servicer and each Servicer shall afford the
Depositor, the Trustee and the Trust Administrator reasonable access to all
records and documentation regarding the Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement, such
access being afforded without charge, but only upon reasonable written request
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and during normal business hours at the office designated by the Master
Servicer or such Servicer. In addition, each Servicer shall afford the Master
Servicer reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but
only upon reasonable written request and during normal business hours at the
office designated by such Servicer. In addition, each Servicer shall provide
to the Special Servicer reasonable access to all records and documentation
regarding the Mortgage Loans serviced by it that become Special Serviced
Mortgage Loans.
(b) The Master Servicer and each Servicer shall inspect the related
Mortgaged Properties as often as deemed necessary by the Master Servicer or
such Servicer in such party's sole discretion, to assure itself that the value
of such Mortgaged Property is being preserved. In addition, if any Mortgage
Loan is more than 60 days delinquent, the applicable Servicer shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as
may be required by the primary mortgage guaranty insurer. The Master Servicer
and each Servicer shall keep a written or electronic report of each such
inspection.
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and
Certificate Account.
(a) The Master Servicer and each Servicer may from time to time make
withdrawals from the related Collection Account for the following purposes:
(i) to pay to the Master Servicer or such Servicer (to the extent
not previously retained by the Master Servicer or such Servicer) the
servicing compensation to which it is entitled pursuant to Section 3.14,
and to pay to the Master Servicer or such Servicer, as additional
servicing compensation, earnings on or investment income with respect to
funds in or credited to such Collection Account;
(ii) to reimburse the Master Servicer or such Servicer for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made (including without
limitation, late recoveries of payments, Liquidation Proceeds and
Insurance Proceeds to the extent received by the Master Servicer or such
Servicer);
(iii) to reimburse the Master Servicer or such Servicer for any
Nonrecoverable Advance previously made or any amount expended pursuant to
Section 3.11(a);
(iv) to reimburse the Master Servicer or such Servicer for (A)
unreimbursed Servicing Advances, the Master Servicer's or such Servicer's
right to reimbursement pursuant to this clause (A) with respect to any
Mortgage Loan being limited to amounts received on such Mortgage Loan
which represent late payments of principal and/or interest (including,
without limitation, Liquidation Proceeds and Insurance Proceeds with
respect to such Mortgage Loan) respecting which any such advance was made
and (B) for unpaid Master Servicing Fees or Servicing Fees as provided in
Section 3.11 hereof;
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(v) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02, 2.03 or 3.11, all amounts received thereon after the date
of such purchase;
(vi) to make any payments required to be made pursuant to Section
2.07(g);
(vii) to withdraw any amount deposited in such Collection Account
and not required to be deposited therein;
(viii) on the Cash Remittance Date, to withdraw an amount equal to
the portion of each available Distribution Amount applicable to the
Mortgage Loans serviced by such Servicer for such Distribution Date and
remit such amount to the Master Servicer who will remit the aggregate of
such amounts to the Trust Administrator for deposit in the Certificate
Account; and
(ix) to clear and terminate such Collection Account upon termination
of this Agreement pursuant to Section 10.01 hereof.
The Master Servicer and each Servicer shall keep and maintain
separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the
purpose of justifying any withdrawal from the related Collection Account
pursuant to such subclauses (i), (ii), (iv) and (v). Prior to making any
withdrawal from a Collection Account pursuant to subclause (iii) of a
Nonrecoverable Advance, the Master Servicer or the related Servicer shall
deliver to the Trust Administrator a certificate of a Servicing Officer
indicating the amount of any previous Advance or Servicing Advance determined
by the Master Servicer or such Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans(s), and their respective portions of
such Nonrecoverable Advance.
(b) The Trust Administrator shall withdraw funds from the
Certificate Account for distributions to Certificateholders 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 Trust Administrator may from time to time
make withdrawals from the Certificate Account for the following purposes:
(i) to pay to itself any investment income earned for the related
Distribution Date;
(ii) to pay to TGIC the TGIC PMI Fee with respect to each TGIC PMI
Mortgage Loan;
(iii) to withdraw and return to the Master Servicer or the
applicable Servicer for deposit to the applicable Collection Account any
amount deposited in the Certificate Account and not required to be
deposited therein; and
(iv) to clear and terminate the Certificate Account upon termination
of the Agreement pursuant to Section 10.01 hereof.
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SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment
Insurance and Mortgage Guaranty Insurance Policy;
Claims; Restoration of Mortgaged Property.
(a) The Master Servicer and each Servicer shall cause to be
maintained for each Mortgage Loan hazard insurance such that all buildings
upon the Mortgaged Property are insured by a generally acceptable insurer
rated either: "V" or better in the current Best's Key Rating Guide ("Best's")
or acceptable to FNMA or FHLMC against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the
Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) the replacement value of the improvements securing such Mortgage
Loan and (ii) the greater of (A) the outstanding principal balance of the
Mortgage Loan and (B) an amount such that the proceeds of such policy shall be
sufficient to prevent the Mortgagor and/or the mortgagee from becoming a
co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the
Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), the Master Servicer or the related
Servicer shall cause a flood insurance policy to be maintained with respect to
such Mortgage Loan. Such policy shall meet the requirements of the current
guidelines of the Federal Insurance Administration and be in an amount
representing coverage equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid principal balance of the mortgage if
replacement cost coverage is not available for the type of building insured)
and (ii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended.
If a Mortgage is secured by a unit in a condominium project, the
Master Servicer or the related Servicer shall verify that the coverage
required of the owner's association, including hazard, flood, liability, and
fidelity coverage, is being maintained in accordance with the requirements of
the Master Servicer or the Servicer for mortgage loans that it services on its
own account.
The Master Servicer and each Servicer shall cause to be maintained
on each Mortgaged Property such other additional special hazard insurance as
may be required pursuant to such applicable laws and regulations as shall at
any time be in force and as shall require such additional insurance, or
pursuant to the requirements of any Mortgage Guaranty Insurance Policy
insurer, or as may be required to conform with Accepted Servicing Practices to
the extent permitted by the Mortgage Note, the Mortgage or applicable law
provided that the Master Servicer or the Servicer shall not be required to
bear the cost of such insurance.
All policies required hereunder shall name the Master Servicer or
the related Servicer as loss payee and shall be endorsed with standard or
union mortgagee clauses, without contribution, which shall provide for prior
written notice of any cancellation, reduction in amount or material change in
coverage.
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,
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however, that the Master Servicer or such Servicer shall not accept any such
insurance policies from insurance companies unless such companies are rated:
B:III or better in Best's or acceptable to FNMA or FHLMC and are licensed to
do business in the jurisdiction in which the Mortgaged Property is located.
The Master Servicer or the related Servicer shall determine that such policies
provide sufficient risk coverage and amounts, that they insure the property
owner, and that they properly describe the property address.
Pursuant to Section 3.05, any amounts collected by the Master
Servicer or a Servicer under any such policies (other than amounts to be
deposited in the related Escrow Account and applied to the restoration or
repair of the related Mortgaged Property, or property acquired in liquidation
of the Mortgage Loan, or to be released to the Mortgagor, in accordance with
such Servicer's normal servicing procedures) shall be deposited in the related
Collection Account (subject to withdrawal pursuant to Section 3.08(a)).
Any cost incurred by the Master Servicer or a Servicer in
maintaining any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the Trust
Administrator for their benefit, be added to the principal balance of the
Mortgage Loan, notwithstanding that the terms of the Mortgage Loan so permit.
Such costs shall constitute a Servicing Advance and will be reimbursable to
the Master Servicer or the Servicer to the extent permitted by Section 3.08
hereof. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor or maintained on property
acquired in respect of a Mortgage other than pursuant to such applicable laws
and regulations as shall at any time be in force and as shall require such
additional insurance.
(b) In the event that the Master Servicer or a Servicer shall obtain
and maintain a blanket policy insuring against losses arising from fire and
hazards covered under extended coverage on all of the related Mortgage Loans,
then, to the extent such policy provides coverage in an amount equal to the
amount required pursuant to Section 3.09(a) and otherwise complies with all
other requirements of Section 3.09(a), it shall conclusively be deemed to have
satisfied its obligations as set forth in Section 3.09(a). Any amounts
collected by the Master Servicer or a Servicer under any such policy relating
to a Mortgage Loan shall be deposited in the related Collection Account
subject to withdrawal pursuant to Section 3.08(a). Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
3.09(a), and there shall have been a loss which would have been covered by
such policy, the Master Servicer or the related Servicer shall deposit in the
related Collection Account at the time of such loss the amount not otherwise
payable under the blanket policy because of such deductible clause, such
amount to be deposited from such Servicer's funds, without reimbursement
therefor. Upon request of the Trust Administrator, the Master Servicer or a
Servicer shall cause to be delivered to the Trust Administrator a certified
true copy of such policy and a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Trust Administrator. In connection with its
activities as Servicer of the related Mortgage Loans, the Master Servicer or
such Servicer agrees to present, on behalf of itself, the Depositor, and the
Trust Administrator for the benefit of the Certificateholders, claims under
any such blanket policy.
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(c) With respect to each Mortgage Loan with a Loan-to-Value Ratio in
excess of 80% which the Seller represented to be covered by a Mortgage
Guaranty Insurance Policy as of the Cut-off Date, the Master Servicer or the
related Servicer shall, without any cost to the Depositor or Trust
Administrator, maintain or cause the Mortgagor to maintain in full force and
effect a Mortgage Guaranty Insurance Policy insuring that portion of the
Mortgage Loan in excess of 75% of value, and shall pay or shall cause the
Mortgagor to pay, the premium thereon on a timely basis, until the
loan-to-value ratio of such Mortgage Loan is reduced to 80%, based on either
(i) a current appraisal of the Mortgaged Property or (ii) the appraisal of the
Mortgaged Property obtained at the time the Mortgage Loan was originated. In
the event that such Mortgage Guaranty Insurance Policy shall be terminated,
the Master Servicer or the related Servicer shall obtain from another
Qualified Insurer a comparable replacement policy, with a total coverage equal
to the remaining coverage of such terminated Mortgage Guaranty Insurance
Policy. If the insurer shall cease to be a Qualified Insurer, the Master
Servicer or the related Servicer shall determine whether recoveries under the
Mortgage Guaranty Insurance Policy are jeopardized for reasons related to the
financial condition of such insurer, it being understood that the Master
Servicer or such Servicer shall in no event have any responsibility or
liability for any failure to recover under the Mortgage Guaranty Insurance
Policy for such reason. If the Master Servicer or the related Servicer
determines that recoveries are so jeopardized, it shall notify the Mortgagor,
if required, and obtain from another Qualified Insurer a replacement insurance
policy. The Master Servicer or the related Servicer shall not take any action
which would result in noncoverage under any applicable Mortgage Guaranty
Insurance Policy of any loss which, but for the actions of the Master Servicer
or such Servicer would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into
pursuant to Section 3.10, the Master Servicer and each Servicer shall promptly
notify the insurer under the related Mortgage Guaranty Insurance Policy, if
any, of such assumption or substitution of liability in accordance with the
terms of such Mortgage Guaranty Insurance Policy and shall take all actions
which may be required by such insurer as a condition to the continuation of
coverage under such Mortgage Guaranty Insurance Policy provided that such
required actions are in compliance with all applicable law. If such Mortgage
Guaranty Insurance Policy is terminated as a result of such assumption or
substitution of liability, the Master Servicer or the related Servicer shall
obtain a replacement Mortgage Guaranty Insurance Policy as provided above;
provided that under 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 PMI Mortgage Loans, the TGIC Policy shall
be maintained by the Trust Administrator for the life of such Mortgage Loans,
unless otherwise prohibited by law. The applicable Servicer shall submit all
claims required to be made under the TGIC Policy in a timely fashion and shall
otherwise comply with the terms of the TGIC Policy. The Master Servicer and
each Servicer shall deposit all amounts received under the TGIC Policy into
the Collection Account. The TGIC PMI Fee shall be paid by the Trust
Administrator from amounts withdrawn from the Certificate Account in
accordance with Section 3.08(b)(ii).
With respect to Mortgage Loans which are not TGIC PMI Mortgage
Loans, the Master Servicer and the applicable Servicer each agrees to effect
timely payment of the premiums on each Mortgage Guaranty Insurance Policy, and
such payments shall constitute
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Servicing Advances reimbursable to the Master Servicer or such Servicer
pursuant to Section 3.08.
(d) In connection with its activities as servicer, the Master
Servicer and each Servicer agrees to prepare and present, on behalf of itself,
the Depositor, the Trustee, the Trust Administrator and the
Certificateholders, claims to the insurer under any Mortgage Guaranty
Insurance Policy in a timely fashion in accordance with the terms of such
Mortgage Guaranty Insurance Policy and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Mortgage
Guaranty Insurance Policy respecting defaulted Mortgage Loans. Pursuant to
Section 3.05, any amounts collected by the Master Servicer or a Servicer under
any Mortgage Guaranty Insurance Policy shall be deposited in the related
Collection Account, subject to withdrawal pursuant to Section 3.08.
(e) Neither the Master Servicer nor a Servicer need obtain the
approval of the Trustee or the Trust Administrator prior to releasing any
Insurance Proceeds to the Mortgagor to be applied to the restoration or repair
of the Mortgaged Property if such release is in accordance with Accepted
Servicing Practices. At a minimum, the Master Servicer and each Servicer shall
comply with the following conditions in connection with any such release of
Insurance Proceeds:
(i) the Master Servicer or such Servicer shall receive satisfactory
independent verification of completion of repairs and issuance of any
required approvals with respect thereto;
(ii) the Master Servicer or such Servicer shall take all steps
necessary to preserve the priority of the lien of the Mortgage,
including, but not limited to requiring waivers with respect to
mechanics' and materialmen's liens; and
(iii) pending repairs or restoration, the Master Servicer or such
Servicer shall place the Insurance Proceeds in the related Escrow
Account.
(f) If the Trust Administrator is named as an additional loss payee,
the Master Servicer or the related Servicer is hereby empowered to endorse any
loss draft issued in respect of such a claim in the name of the Trustee or the
Trust Administrator.
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) The Master Servicer and each Servicer shall use its best efforts
to enforce any "due-on-sale" provision contained in any related Mortgage or
Mortgage Note and to deny assumption by the person to whom the Mortgaged
Property has been or is about to be sold whether by absolute conveyance or by
contract of sale, and whether or not the Mortgagor remains liable on the
Mortgage and the Mortgage Note. When the Mortgaged Property has been conveyed
by the Mortgagor, the Master Servicer or the related Servicer shall, to the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Master Servicer or such Servicer shall
not exercise such rights if prohibited by law from doing so or if
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the exercise of such rights would impair or threaten to impair any recovery
under the related Mortgage Guaranty Insurance Policy, if any.
(b) If the Master Servicer or a Servicer reasonably believes it is
unable under applicable law to enforce such "due-on-sale" clause, the Master
Servicer or such Servicer shall enter into (i) an assumption and modification
agreement with the person to whom such property has been conveyed, pursuant to
which such person becomes liable under the Mortgage Note and the original
Mortgagor remains liable thereon or (ii) in the event the Master Servicer or
such Servicer is unable under applicable law to require that the original
Mortgagor remain liable under the Mortgage Note, a substitution of liability
agreement with the purchaser of the Mortgaged Property pursuant to which the
original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Notwithstanding the foregoing, the Master Servicer or a
Servicer shall not be deemed to be in default under this Section by reason of
any transfer or assumption which the Master Servicer or such Servicer
reasonably believes it is restricted by law from preventing, for any reason
whatsoever. In connection with any such assumption, no material term of the
Mortgage Note, including without limitation, the Mortgage Rate borne by the
related Mortgage Note, the term of the Mortgage Loan or the outstanding
principal amount of the Mortgage Loan shall be changed.
(c) To the extent that any Mortgage Loan is assumable, the Master
Servicer or the related Servicer shall inquire diligently into the
creditworthiness of the proposed transferee, and shall use the underwriting
criteria for approving the credit of the proposed transferee which are used by
FNMA with respect to underwriting mortgage loans of the same type as the
Mortgage Loans. If the credit of the proposed transferee does not meet such
underwriting criteria, the Master Servicer or the related Servicer diligently
shall, to the extent permitted by the 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, the Master
Servicer or such Servicer shall prepare and deliver or cause to be prepared
and delivered to the Trustee for signature and shall direct, in writing, the
Trustee to execute the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. In connection with
any such assumption, no material term of the Mortgage Note may be changed.
Together with each such substitution, assumption or other agreement or
instrument delivered to the Trustee for execution by it, the Master Servicer
or the related Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer or the related Servicer shall
notify the Trustee that any such substitution or assumption agreement has been
completed by forwarding to the Trustee the original of such substitution or
assumption agreement, which in the case of the
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original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. Any fee collected
by the Master Servicer or a Servicer for entering into an assumption or
substitution of liability agreement will be retained by the Master Servicer or
such Servicer as additional servicing compensation.
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.
(a) The Master Servicer and each Servicer shall use reasonable
efforts to foreclose upon or otherwise comparably convert the ownership of
properties securing such of the related Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments. In connection with such foreclosure or
other conversion, the Master Servicer and each Servicer shall take such action
as (i) the Master Servicer or such Servicer would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (ii) shall be consistent with Accepted Servicing Practices,
(iii) the Master Servicer or such Servicer shall determine consistently with
Accepted Servicing Practices to be in the best interest of the Trustee and
Certificateholders, and (iv) is consistent with the requirements of the
insurer under any Required Insurance Policy; provided, however, that the
Master Servicer or such Servicer shall not be required to expend its own funds
in connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the related Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds. Any funds expended by the
Master Servicer or any Servicer pursuant to this Section 3.11(a) shall be
reimbursable in full pursuant to Section 3.08(a)(iii). The Master Servicer or
the related Servicer shall be responsible for all other costs and expenses
incurred by it in any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof from the Liquidation Proceeds with respect
to the related Mortgaged Property or otherwise as a Servicing Advance in
accordance with Section 3.08(a).
Notwithstanding anything to the contrary contained in this
Agreement, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Master Servicer or the related Servicer has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Trust Administrator
otherwise requests, an environmental inspection or review of such Mortgaged
Property conducted by a qualified inspector shall be arranged for by such
Servicer. Upon completion of the inspection, the Master Servicer or the
related Servicer shall promptly provide the Trust Administrator with a written
report of environmental inspection.
In the event the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
the Master Servicer or the related Servicer shall not proceed with foreclosure
or acceptance of a deed in lieu of foreclosure if the estimated costs of the
environmental clean up, as estimated in the environmental inspection report,
together with the Servicing Advances and Advances made by the Master Servicer
or such Servicer and the estimated costs of foreclosure or acceptance of a
deed in lieu of foreclosure exceeds the estimated value of the Mortgaged
Property. If however, the aggregate of such clean
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up and foreclosure costs, Advances and Servicing Advances are less than or
equal to the estimated value of the Mortgaged Property, then the Master
Servicer or the related Servicer may, in its reasonable judgment and in
accordance with Accepted Servicing Practices, choose to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure and the Master
Servicer or such Servicer shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of
foreclosure and any related environmental clean up costs, as applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse such Servicer, the Master Servicer or such
Servicer shall be entitled to be reimbursed from amounts in the related
Collection Account pursuant to Section 3.08(a) hereof. In the event the Master
Servicer or the related Servicer does not proceed with foreclosure or
acceptance of a deed in lieu of foreclosure pursuant to the first sentence of
this paragraph, the Master Servicer or such Servicer shall be reimbursed for
all Advances and Servicing Advances made with respect to the related Mortgaged
Property from the related Collection Account pursuant to Section 3.08(a)
hereof, and the Master Servicer or such Servicer shall have no further
obligation to service such Mortgage Loan under the provisions of this
Agreement.
(b) With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trust Administrator for the benefit of
the Certificateholders, or its nominee, on behalf of the Certificateholders.
The Trust Administrator's name shall be placed on the title to such REO
Property solely as the Trust Administrator hereunder and not in its individual
capacity. The Master Servicer or the related Servicer shall ensure that the
title to such REO Property references this Agreement and the Trust
Administrator's capacity hereunder. Pursuant to its efforts to sell such REO
Property, the Master Servicer or the related Servicer shall in accordance with
Accepted Servicing Practices manage, conserve, protect and operate each REO
Property for the purpose of its prompt disposition and sale. The Master
Servicer or the related Servicer, either itself or through an agent selected
by such Servicer, shall manage, conserve, protect and operate the REO Property
in the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. Upon request,
the Master Servicer or the related Servicer shall furnish to the Trust
Administrator on or before each Distribution Date a statement with respect to
any REO Property covering the operation of such REO Property for the previous
calendar month and such Servicer's efforts in connection with the sale of such
REO Property and any rental of such REO Property incidental to the sale
thereof for the previous calendar month. That statement shall be accompanied
by such other information as the Trust Administrator shall reasonably request
and which is necessary to enable the Trust Administrator to comply with the
reporting requirements of the REMIC Provisions. The net monthly rental income,
if any, from such REO Property shall be deposited in the related Collection
Account no later than the close of business on each Determination Date. The
Master Servicer or the related Servicer shall perform the tax reporting and
withholding required by Sections 1445 and 6050J of the Code with respect to
foreclosures and abandonments, the tax reporting required by Section 6050H of
the Code with respect to the receipt of mortgage interest from individuals and
any tax reporting required by Section 6050P of the Code with respect to the
cancellation of indebtedness by certain financial entities, by preparing such
tax and information returns as may be required, in the form required, and
delivering the same to the Trust Administrator for filing.
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To the extent consistent with Accepted Servicing Practices, the
Master Servicer or the related Servicer shall also maintain on each REO
Property fire and hazard insurance with extended coverage in an amount which
is equal to the outstanding principal balance of the related Mortgage Loan (as
reduced by any amount applied as a reduction of principal at the time of
acquisition of the REO Property), liability insurance and, to the extent
required and available under the Flood Disaster Protection Act of 1973, as
amended, flood insurance in the amount required above.
(c) In the event that the Trust Fund acquires any Mortgaged Property
as aforesaid or otherwise in connection with a default or imminent default on
a Mortgage Loan, the Master Servicer or the related Servicer shall dispose of
such Mortgaged Property prior to three years after the end of the calendar
year of its acquisition by the Trust Fund unless (i) the Trustee and the Trust
Administrator shall have been supplied with an Opinion of Counsel to the
effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to such three-year period will not result in the imposition of
taxes on "prohibited transactions" of any REMIC hereunder as defined in
section 860F of the Code or cause any REMIC hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the
Trust Fund may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) or (ii) the applicable
Servicer shall have applied for, prior to the expiration of such three-year
period, an extension of such three-year period in the manner contemplated by
Section 856(e)(3) of the Code, in which case the three-year period shall be
extended by the applicable extension period. Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Trust Fund
shall be rented (or allowed to continue to be rented) or otherwise used for
the production of income by or on behalf of the Trust Fund in such a manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of section 860G(a)(8) of
the Code or (ii) subject any REMIC hereunder to the imposition of any federal,
state or local income taxes on the income earned from such Mortgaged Property
under Section 860G(c) of the Code or otherwise, unless the Master Servicer or
the related Servicer has agreed to indemnify and hold harmless the Trust Fund
with respect to the imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of
a deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer or the related Servicer will cause
compliance with the provisions of Treasury Regulation Section 1.1445-2(d)(3)
(or any successor thereto) necessary to assure that no withholding tax
obligation arises with respect to the proceeds of such foreclosure except to
the extent, if any, that proceeds of such foreclosure are required to be
remitted to the obligors on such Mortgage Loan.
(d) The decision of the Master Servicer or a Servicer to foreclose
on a defaulted Mortgage Loan shall be subject to a determination by the Master
Servicer or such Servicer that the proceeds of such foreclosure would exceed
the costs and expenses of bringing such a proceeding. The income earned from
the management of any REO Properties, net of reimbursement to the Master
Servicer or such Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of applicable accrued
and
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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 Master Servicer or the related Servicer for
any related unreimbursed Servicing Advances and Servicing Fees; second, to
reimburse the Master Servicer or such Servicer for any unreimbursed Advances;
third, to reimburse the related Collection Account for any Nonrecoverable
Advances (or portions thereof) that were previously withdrawn by the Master
Servicer or such Servicer pursuant to Section 3.08(a)(iii) that related to
such Mortgage Loan; fourth, to accrued and unpaid interest (to the extent no
Advance has been made for such amount or any such Advance has been reimbursed)
on the Mortgage Loan or related REO Property, at the per annum rate equal to
the related Mortgage Rate reduced by the related Servicing Fee Rate and the
MGIC PMI Fee Rate, if applicable, to the Due Date occurring in the month in
which such amounts are required to be distributed; and fifth, as a recovery of
principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation
of a Liquidated Mortgage Loan will be retained by the Master Servicer or the
related Servicer as additional servicing compensation pursuant to Section
3.14.
(f) The Master Servicer and each Servicer of the Mortgage Loans may
(but is not obligated to) enter into a special servicing agreement with an
unaffiliated holder of a 100% Percentage Interest of the most junior class of
Subordinate Certificates, subject to each Rating Agency's acknowledgment that
the Ratings of the Certificates in effect immediately prior to the entering
into such agreement would not be qualified, downgraded or withdrawn and the
Certificates would not be placed on credit review status (except for possible
upgrading) as a result of such agreement. Any such agreement may contain
provisions whereby such Holder may (i) instruct the Master Servicer or the
related Servicer to commence or delay foreclosure proceedings with respect to
delinquent Mortgage Loans and will contain provisions for the deposit of cash
with the Master Servicer or such Servicer by the holder that would be
available for distribution to Certificateholders if Liquidation Proceeds are
less than they otherwise may have been had the Master Servicer or such
Servicer acted in accordance with its normal procedures, (ii) purchase
delinquent Mortgage Loans from the Trust Fund immediately prior to the
commencement of foreclosure proceedings at a price equal to the aggregate
outstanding Principal Balance of such Mortgage Loans plus accrued interest
thereon at the applicable Mortgage Rate through the last day of the month in
which such Mortgage Loan is purchased, and/or (iii) assume all of the
servicing rights and obligations with respect to delinquent Mortgage Loans so
long as such Holder (A) meets the requirements for a Subservicer set forth in
Section 3.02(a), (B) will service such Mortgage Loans in accordance with this
Agreement and (C) the Master Servicer or the Servicer has the right to
transfer such servicing rights without the payment of any compensation to a
subservicer.
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(g) The Special Servicer, at its option, may (but is not obligated to)
purchase from the Trust Fund, (a) any Mortgage Loan that is delinquent in
payment 90 or more days or (b) any related Mortgage Loan with respect to which
there has been initiated legal action or other proceedings for the foreclosure
of the related Mortgaged Property either judicially or non-judicially, in each
case, provided that the applicable servicer has the right to transfer the
related servicing rights without the payment of any compensation to a
subservicer. Any such purchase shall be made by the Special Servicer with its
own funds at a price equal to the Purchase Price for such Mortgage Loan.
SECTION 3.12 Trustee and Trust Administrator to Cooperate; Release
of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer or a Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer or such
Servicer will immediately notify the Trustee, or the Custodian on its behalf,
by delivering, or causing to be delivered a "Request for Release"
substantially in the form of Exhibit K. Upon receipt of such request, the
Trustee, or the Custodian on its behalf, shall within three Business Days
release the related Mortgage File to the Master Servicer or the related
Servicer, and the Trustee shall within three Business Days of such Servicer's
direction execute and deliver to the Master Servicer or such Servicer the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage in each case
provided by such Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. Expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
related Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any fidelity bond or errors or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee, or the Custodian on its behalf
within three Business Days of delivery to the Trustee, or the Custodian on its
behalf of a Request for Release in the form of Exhibit K signed by a Servicing
Officer, release the Mortgage File to the Master Servicer or the related
Servicer. Subject to the further limitations set forth below, the Master
Servicer or the related Servicer shall cause the Mortgage File or documents so
released to be returned to the Trustee, or the Custodian on its behalf, when
the need therefor by the Master Servicer or such Servicer no longer exists,
unless the Mortgage Loan is liquidated and the proceeds thereof are deposited
in the related Collection Account, in which case the Master Servicer or such
Servicer shall deliver to the Trustee, or the Custodian on its behalf, a
Request for Release in the form of Exhibit K, signed by a Servicing Officer.
If the Master Servicer or a Servicer at any time seeks to initiate a
foreclosure proceeding in respect of any Mortgaged Property as authorized by
this Agreement, the Master Servicer or such Servicer shall deliver or cause to
be delivered to the Trustee, for signature, as appropriate, any court
pleadings, requests for trustee's sale or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other
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remedies or rights provided by the Mortgage Note or the Mortgage or otherwise
available at law or in equity.
SECTION 3.13 Documents, Records and Funds in Possession of the
Master Servicer or a Servicer to be Held for the
Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer and each Servicer shall transmit to the Trustee, or the Custodian on
its behalf, as required by this Agreement all documents and instruments in
respect of a Mortgage Loan coming into the possession of the Master Servicer
or the related Servicer from time to time required to be delivered to the
Trustee, or the Custodian on its behalf, pursuant to the terms hereof and
shall account fully to the Trust Administrator for any funds received by the
Master Servicer or such Servicer or which otherwise are collected by the
Master Servicer or such Servicer as Liquidation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan. All Mortgage Files and funds collected or
held by, or under the control of, the Master Servicer or a Servicer in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including but not limited to, any funds
on deposit in a Collection Account, shall be held by the Master Servicer or
the related Servicer for and on behalf of the Trustee or the Trust
Administrator and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer and each Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the related
Collection Account, Certificate Account or any related Escrow Account, or any
funds that otherwise are or may become due or payable to the Trustee or the
Trust Administrator for the benefit of the Certificateholders, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Mortgage File or any funds collected on, or in connection
with, a Mortgage Loan, except, however, that the Master Servicer or such
Servicer shall be entitled to set off against and deduct from any such funds
any amounts that are properly due and payable to the Master Servicer or such
Servicer under this Agreement.
SECTION 3.14 Master Servicing Fee and Servicing Fee.
(a) As compensation for its services hereunder, the Master Servicer
and each Servicer shall be entitled to withdraw from the applicable Collection
Account or to retain from interest payments on the related Mortgage Loans
(which have been remitted to the Master Servicer by the applicable Servicer,
in the case of the Master Servicer), the amount of the Master Servicing Fee or
its Servicing Fee, respectively for each Mortgage Loan serviced by it, less
any amounts in respect of the Master Servicing Fee or its Servicing Fee, as
applicable, payable by the Master Servicer or such Servicer pursuant to
Section 3.05(c)(vi). The Master Servicing Fee and the Servicing Fee are
limited to, and payable solely from, the interest portion of such Scheduled
Payments collected by the Master Servicer or the related Servicer or as
otherwise provided in Section 3.08(a). In connection with the servicing of any
Special Serviced Mortgage Loan, Vesta shall receive the Servicing Fee for such
Special Serviced Mortgage Loan as its compensation and Ancillary Income with
respect to Special Serviced Mortgage Loans.
(b) Additional servicing compensation in the form of Ancillary
Income shall be retained by the Master Servicer or the related Servicer. The
Master Servicer and each Servicer
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shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including the payment of any expenses incurred
in connection with any Subservicing Agreement entered into pursuant to Section
3.02 and the payment of any premiums for insurance required pursuant to
Section 3.18) and shall not be entitled to reimbursement thereof except as
specifically provided for in this Agreement.
SECTION 3.15 Access to Certain Documentation.
The Master Servicer and each Servicer shall provide to the OTS and
the FDIC and to comparable regulatory authorities supervising Holders of
Subordinate Certificates and the examiners and supervisory agents of the OTS,
the FDIC and such other authorities, access to the documentation regarding the
related Mortgage Loans required by applicable regulations of the OTS and the
FDIC. Such access shall be afforded without charge, but only upon reasonable
and prior written request and during normal business hours at the offices
designated by such Servicer. Nothing in this Section shall limit the
obligation of the Master Servicer or any Servicer to observe any applicable
law prohibiting disclosure of information regarding the Mortgagors and the
failure of the Master Servicer or such Servicer to provide access as provided
in this Section as a result of such obligation shall not constitute a breach
of this Section. Nothing in this Section 3.15 shall require the Master
Servicer or any Servicer to collect, create, collate or otherwise generate any
information that it does not generate in its usual course of business.
SECTION 3.16 Annual Statement as to Compliance.
The Master Servicer and each Servicer shall deliver to the
Depositor, the Rating Agencies, the Trustee and the Trust Administrator, and
each Servicer shall deliver to the Master Servicer, on or before 120 days
after the end of such Servicer's fiscal year, commencing in its 2002 fiscal
year, an Officer's Certificate stating, as to the signer thereof, that (i) a
review of the activities of the Master Servicer or such Servicer during the
preceding calendar year and of the performance of the Master Servicer or such
Servicer under this Agreement has been made under such officer's supervision,
and (ii) to the best of such officer's knowledge, based on such review, the
Master Servicer or such Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the action being taken by the
Master Servicer or such Servicer to cure such default.
SECTION 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 120 days after the end of the Master Servicer and each
Servicer's fiscal year, commencing in its 2002 fiscal year, the Master
Servicer and each Servicer at its expense shall cause a nationally or
regionally recognized firm of independent public accountants (who may also
render other services to such Servicer, the Seller or any affiliate thereof)
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Trust Administrator and the Depositor, and each
Servicer shall similarly furnish a statement to the Master Servicer, to the
effect that such firm has examined certain documents and records relating to
the servicing of mortgage loans which the Master Servicer or such Servicer is
servicing, including the related Mortgage Loans, and that, on the basis of
such examination,
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conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Guide for HUD Approved Title II
Approved Mortgagees and Loan Correspondent Programs, nothing has come to their
attention which would indicate that such servicing has not been conducted in
compliance with Accepted Servicing Practices, except for (a) such exceptions
as such firm shall believe to be immaterial, and (b) such other exceptions as
shall be set forth in such statement. In rendering such statement, such firm
may rely, as to matters relating to direct servicing of mortgage loans by
Subservicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs (rendered within one year of such
statement) of independent public accountants with respect to the related
Subservicer. Copies of such statement shall be provided by the Trust
Administrator to any Certificateholder upon request at the the Master Servicer
or related Servicer's expense, provided such statement is delivered by the
Master Servicer or such Servicer to the Trust Administrator.
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Master Servicer and each Servicer shall maintain with
responsible companies, at its own expense, a blanket Fidelity Bond and an
Errors and Omissions Insurance Policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the related Mortgage
Loans ("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 Master Servicer or the related Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of the Master Servicer Employees, in the case of
the Master Servicer, or such Servicer Employees, in the case of the Servicer.
Such Fidelity Bond and Errors and Omissions Insurance Policy also shall
protect and insure the Master Servicer and each Servicer against losses in
connection with the release or satisfaction of a related Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 3.18 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Master Servicer or a
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by FNMA. Upon the request of the
Trust Administrator, the Master Servicer or the related Servicer shall cause
to be delivered to the Trust Administrator a certificate of insurance of the
insurer and the surety including a statement from the surety and the insurer
that such fidelity bond and insurance policy shall in no event be terminated
or materially modified without 30 days' prior written notice to the Trust
Administrator.
SECTION 3.19 Special Serviced Mortgage Loans.
If directed by the Special Servicer and solely at the Special
Servicer's option, the Master Servicer or a Servicer shall transfer the
servicing of any Mortgage Loan serviced by the Master Servicer or such
Servicer 91 days or more delinquent to the Special Servicer. The Special
Servicer shall thereupon assume all of the rights and obligations of the
Master Servicer or such Servicer hereunder arising thereafter and the Master
Servicer or 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 of the Master Servicer or such Servicer pursuant to
Section 3.09 hereof or for any acts or omissions of the Master Servicer or
related predecessor
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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, the Master Servicer and 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 Master
Servicer or related predecessor Servicer for all unreimbursed Advances,
Servicing Advances and Servicing Fees and Master Servicing Fees, as
applicable, relating to the Mortgage Loans for which the servicing is being
transferred. The Special Servicer shall be entitled to be reimbursed for all
such Advances, Servicing Advances and Servicing Fees and Master Servicing
Fees, as applicable, paid by the Special Servicer to the Master Servicer or
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.
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ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution.
(I) (A) On each Distribution Date, with respect to the Group I Certificates,
the Group II Certificates and the Group III Certificates, the Trust
Administrator shall determine the amounts to be distributed to each Class
of Certificates as follows:
(a) with respect to the Certificate Group I and the Class AR
Certificates and from the Available Distribution Amount relating to
Loan Group I:
(i) to TGIC, the TGIC Premium related to Loan Group I for such
Distribution Date;
(ii) concurrently, to the Class I-A Certificates and the Class AR
Certificates, an amount allocable to interest equal to the
related Interest Distribution Amount, any shortfall being
allocated pro rata among such Classes in proportion to the
amount of the Interest Distribution Amount that would have
been distributed in the absence of such shortfall;
(iii) on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for
Loan Group I remaining after giving effect to the
distributions pursuant to clauses I(A)(a)(i) and I(A)(a)(ii)
above, to the Class I-A Certificates and the Class AR
Certificates, the related Senior Principal Distribution
Amount, in the following order of priority:
(A) first, to the Class AR Certificates, until the Class
Principal Balance of the Class AR Certificates has been
reduced to zero;
(B) second, to the Class I-A Certificates, until the
Class Principal Balance of the Class I-A Certificates has
been reduced to zero;
(b) with respect to Certificate Group II and from the Available
Distribution Amount relating to Loan Group II:
(i) to TGIC, the TGIC Premium related to Loan Group II for such
Distribution Date;
(ii) to the Class II-A Certificates, an amount allocable to
interest equal to the related Interest Distribution Amount;
(iii) on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for
Loan Group II remaining after giving effect to the
distributions pursuant to clauses I(A)(b)(i) and I(A)(b)(ii)
above, to the Class II-A Certificates, the related Senior
Principal Distribution Amount;
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(c) with respect to Certificate Group III and from the Available
Distribution Amount relating to Loan Group III:
(i) to TGIC, the TGIC Premium related to Loan Group III for such
Distribution Date;
(ii) concurrently, to the Class III-A Certificates, Class III-X
Certificates and the Interest Remittance Amount, an amount
allocable to interest equal to the related Interest
Distribution Amount or, in the case of the Interest
Remittance Amount, the Group III Excess Interest Amount for
such Distribution Date, any shortfall being allocated pro
rata among such Classes in proportion to the amount of the
Interest Distribution Amount or Group III Excess Interest
Amount, as applicable, that would have been distributed in
the absence of such shortfall;
(iii) on each Distribution Date prior to the Credit Support
Depletion Date, from the Available Distribution Amount for
Loan Group III remaining after giving effect to the
distributions pursuant to clauses I(A)(c)(i) and II(A)(c)(ii)
above, to the Class III-A Certificates, the related Senior
Principal Distribution Amount;
(d) from the Available Distribution Amount relating to Loan Group I,
Loan Group II and Loan Group III remaining after the distributions
pursuant to (a), (b) and (c) above, to each Class of Subordinate
Certificates relating to Loan Group I, Loan Group II and Loan Group
III, subject to paragraphs (B) and (C) below, in the following order
of priority:
(i) first, to the Class C-B-1 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for
such Class for such Distribution Date;
(ii) second, to the Class C-B-1 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance of
Class C-B-1 Certificates has been reduced to zero;
(iii) third, to the Class C-B-2 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for
such Class for such Distribution Date;
(iv) fourth, to the Class C-B-2 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance of
Class C-B-2 Certificates has been reduced to zero;
(v) fifth, to the Class C-B-3 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for
such Class for such Distribution Date;
(vi) sixth, to the Class C-B-3 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Certificate Principal Balance of
Class C-B-3 Certificates has been reduced to zero:
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(vii) seventh, to the Class C-B-4, Class C-B-5 and Class C-B-6
Certificates, interest and principal in the same manner as
for the Class C-B-1, Class C-B-2 and Class C-B-3
Certificates, first to the Class C-B-4 Certificates, then to
the Class C-B-5 Certificates and then to the Class C-B-6
Certificates;
(viii) eighth, to the Class C-B-1, Class C-B-2, Class C-B-3, Class
C-B-4, Class C-B-5 and Class C-B-6 Certificates, in that
order, up to an amount of unreimbursed Realized Losses
previously allocated to that Class, if any; provided,
however, that any distribution pursuant to this clause (viii)
shall not result in a further reduction of the Class
Principal Balance of any fo the Group C-B Certificates; and
(vi) to the Class AR Certificates, any remaining Available
Distribution Amount for Loan Group I, Loan Group II and Loan
Group III.
Notwithstanding the allocation and priority set forth in Section
4.01(I)(A)(a)(iii), (b)(iii) and (c)(iii), on each Distribution Date on or
after the Credit Support Depletion Date, the portion of the related Available
Distribution Amount available to be distributed to the related Class A
Certificates and the Class AR Certificates specified in such Section will be
distributed by the Trust Administrator among such Classes, pro rata, on the
basis of their respective Class Principal Balances (prior to making any
distributions on such Distribution Date) and until the Class Principal
Balances thereof are reduced to zero.
(B) On each Distribution Date, the amount referred to in clause (i)
of the definition of Interest Distribution Amount for such Distribution Date
for each Class of Group I Certificates, Group II Certificates and Group III
Certificates shall be reduced by the Trust Administrator by, (i) the related
Class' pro rata share (based on the applicable Interest Distribution Amount
for each such Class before reduction pursuant to this Section 4.01(I)(B)(i))
of Net Prepayment Interest Shortfalls for Mortgage Loans in Loan Group I, Loan
Group II and Loan Group III; 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
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 Group C-B Certificates, if on any
Distribution Date the related Subordination Level of such Class is less than
such percentage as of the Closing Date, no distribution of Principal
Prepayments in Full and Principal Prepayments in Part will be
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made to any Class or Classes of Subordinate Certificates junior to such Class
(the "Restricted Classes") and the amount otherwise distributable to the
Restricted Classes in respect of such Principal Prepayments in Full and
Principal Prepayments in Part will be allocated among the remaining Classes of
Subordinate Certificates, pro rata, based upon their respective Class
Principal Balances.
(II) With respect to the Group IV Certificates:
(a) On each Distribution Date, the Trust Administrator shall
distribute the Interest Remittance Amount for such date in the following order
of priority:
(i) to the Class IV-A Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date;
(ii) to the Class IV-M-1 Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date;
(iii) to the Class IV-M-2 Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date;
(iv) To the Class IV-B Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution Date; and
(v) for application as part of Monthly Excess Cashflow for such
Distribution Date as provided in Section 4.01(II)(d), any Interest
Remittance Amount remaining for such Distribution Date.
(b) On each Distribution Date (A) prior to the Stepdown Date or (B)
with respect to which a Trigger Event has occurred, the Trust Administrator
shall distribute the Principal Payment Amount for Loan Group IV for such date
in the following order of priority:
(i) to the Class IV-A Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
(ii) to the Class IV-M-1 Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
(iii) to the Class IV-M-2 Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
(iv) to the Class IV-B Certificates, until the Class Principal
Balance of such Class has been reduced to zero; and
(v) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.01(II)(d), any Principal
Payment Amount remaining after application pursuant to clauses II(b)(i)
through (iv) above.
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(c) On each Distribution Date (A) on or after the Stepdown Date and
(B) with respect to which a Trigger Event has not occurred, the Trust
Administrator shall distribute the Principal Payment Amount for such date in
the following order of priority:
(i) to the Class IV-A Certificates, the Senior Principal Payment
Amount, until the Class Principal Balance of such Class has been reduced
to zero;
(ii) to the Class IV-M-1 Certificates, the Class IV-M-1 Principal
Payment Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero;
(iii) to the Class IV-M-2 Certificates, the Class IV-M-2 Principal
Payment Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero;
(iv) to the Class IV-B Certificates, the Class IV-B Principal
Payment Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero; and
(v) for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in Section 4.01(II)(d), any Principal
Payment Amount remaining after application pursuant to clauses II(c)(I)
though (iv) above.
(d) On each Distribution Date, the Trust Administrator shall
distribute the Monthly Excess Cashflow for such date in the following order of
priority:
(i) (A) until the aggregate Class Principal Balance of the Group IV
Certificates, other than the Class IV-X Certificates, equals the
Aggregate Loan Group Balance of Loan Group IV for such Distribution Date
minus the Targeted Overcollateralization Amount for such date, on each
Distribution Date (x) prior to the Stepdown Date or (y) with respect to
which a Trigger Event has occurred, to the extent of Monthly Excess
Interest for such Distribution Date, to the Group IV Certificates, in the
following order of priority:
(a) to the Class IV-A Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
(b) to the Class IV-M-1 Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
(c) to the Class IV-M-2 Certificates, until the Class Principal
Balance of such Class has been reduced to zero; and
(d) to the Class IV-B Certificates, until the Class Principal
Balance of such Class has been reduced to zero.
(B) on each Distribution Date on or after the Stepdown Date and with
respect to which a Trigger Event has not occurred, to fund any principal
distributions required to be
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made on such Distribution Date set forth above in Section 4.01(II)(c) above,
after giving effect to the distribution of the Principal Payment Amount for
Loan Group IV for such Distribution Date, in accordance with the priorities
set forth therein;
(ii) to the Class IV-A Certificates, any Basis Risk Shortfall due
and owing for such Class;
(iii) to the Class IV-M-1 Certificates, any Basis Risk Shortfall due
and owing for such Class;
(iv) to the Class IV-M-2 Certificates, any Basis Risk Shortfall due
and owing for such Class;
(v) to the Class IV-B Certificates, any Basis Risk Shortfall due and
owing for such Class;
(vi) to the Class IV-M-1 Certificates, first, any Carryforward
Interest and then any Deferred Amount for such Class;
(vii) to the Class IV-M-2 Certificates, first any Carryforward
Interest and then any Deferred Amount for such Class;
(viii) to the Class IV-B Certificates, first any Carryforward
Interest and then any Deferred Amount for such Class;
(ix) to the Basis Risk Reserve Fund, any Required Basis Risk Reserve
Fund Deposit;
(x) to the Class IV-X Certificate, the Class IV-X Distributable
Amount for such Distribution Date together with any amounts withdrawn
from the Basis Risk Reserve Fund for distribution to such Class X
Certificate pursuant to Sections 4.07(b) and (c); and
(xi) to the Class AR Certificates, any remaining amount.
SECTION 4.02 Allocation of Losses.
A. (a) Realized Losses on the Mortgage Loans in each of Loan Group I, Loan
Group II and Loan Group III with respect to any Distribution Date shall be
allocated by the Trust Administrator to the Classes of Certificates as
follows:
(i) any Realized Loss shall be allocated first, to the Class
C-B Certificates in decreasing order of their numerical Class
designations (beginning with the Class C-B-6 Certificates), until the
respective Class Principal Balance of each such Class is reduced to zero,
and second, to the Senior Certificates of such Certificate Group (other
than the Notional Amount Certificates), pro rata, on the basis of their
respective Class Principal Balances; provided, however, such losses on
Loan Group I, Loan Group II and Loan Group III will only be allocated to
the respective Senior Certificates; and
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(ii) On each Distribution Date, Excess Losses and Extraordinary
Losses for Mortgage Loans in Loan Group I, Loan Group II and Loan Group
III will be allocated pro rata among all Classes of Senior Certificates
(other than the Notional Amount Certificates) and the Group C-B
Certificates, in each case, relating to Loan Group I, Loan Group II and
Loan Group III, based on their respective Class Principal Balances.
(b) On each Distribution Date, if the aggregate Class Principal
Balance of all Group I Certificates, Group II Certificates and Group III
Certificates exceeds the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group I, Loan Group II and Loan Group III (after giving effect
to distributions of principal and the allocation of all losses to such
Certificates on such Distribution Date), such excess will be deemed a
principal loss and will be allocated by the Trust Administrator to the most
junior Class of Group C-B Certificates then outstanding.
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant
to Section 4.02(b) shall be allocated by the Trust Administrator among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(d) Any allocation by the Trust Administrator of Realized Losses to
a Certificate or any reduction in the Certificate Balance of a Certificate
pursuant to Section 4.02(b) shall be accomplished by reducing the Certificate
Balance thereof, immediately following the distributions made on the related
Distribution Date in accordance with the definition of "Certificate Balance."
B. On each Distribution Date, the Trust Administrator shall
determine the total of the Applied Loss Amount with respect to the Group IV
Certificates, if any, for such Distribution Date. The Applied Loss Amount with
respect to the Group IV Certificates for any Distribution Date shall be
applied by reducing the Class Principal Balance of each Class of Group IV
Subordinate Certificates beginning with the Class of Group IV Subordinate
Certificates then outstanding, other than the Class IV-X Certificates, with
the lowest relative payment priority, in each case until the respective Class
Principal Balance thereof is reduced to zero. Any Applied Loss Amount with
respect to the Group IV Certificates allocated to a Class of Group IV
Subordinate Certificates shall be allocated among the Group IV Subordinate
Certificates of such Class in proportion to their respective Percentage
Interests.
SECTION 4.03 Reserved.
SECTION 4.04 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trust Administrator
shall prepare and cause to be made available to each Certificateholder, the
Master Servicer, each Servicer, the Trustee, the Depositor, and each Rating
Agency, a statement setting forth with respect to the related distribution:
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(i) the amount thereof allocable to principal, indicating the
portion thereof attributable to Scheduled Payments and Principal
Prepayments;
(ii) the amount thereof allocable to interest, indicating the
portion thereof attributable to any Carryforward Interest included in
such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest;
(iv) the Class Principal Balance of each Class of Certificates after
giving effect to the distribution of principal on such Distribution Date;
(v) the Aggregate Loan Balance and Aggregate Loan Group Balance for
each Loan Group, in each case, for the following Distribution Date;
(vi) the amount of the Master Servicing Fees, the Servicing Fees and
the TGIC PMI Fees, if applicable, with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(ix) the number and aggregate principal amounts of Mortgage Loans in
foreclosure or delinquent (with a notation indicating which Mortgage
Loans, if any, are in foreclosure) (1) 31 to 60 days, (2) 61 to 90 days
and (4) 91 or more days, as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(x) the Rolling Three Month Delinquency Rate for such Distribution
Date;
(xi) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xii) the aggregate amount of Realized Losses incurred during the
preceding calendar month and aggregate Realized Losses through such
Distribution Date;
(xiii) the weighted average term to maturity of the Mortgage Loans
as of the close of business on the last day of the calendar month
preceding such Distribution Date; and
(xiv) the number and principal amount of claims submitted and claims
paid under the TGIC Policy during the preceding calendar month and the
number and
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principal amount of claims submitted and claims paid under the TGIC Policy
through such Distribution Date.
The Trust Administrator's responsibility for disbursing the above
information to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer
and each Servicer which shall be provided as required in Section 4.05.
On each Distribution Date, the Trust Administrator shall provide
Bloomberg Financial Markets, L.P. ("Bloomberg") Cusip Level Factors for each
Class of Offered Certificates as of such Distribution Date, using a format and
media mutually acceptable to the Trust Administrator and Bloomberg. In
connection with providing the information specified in this Section 4.04 to
Bloomberg, the Trust Administratorand any director, officer, employee or agent
of the Trust Administrator shall be indemnified and held harmless by DLJMC, to
the extent, in the manner and subject to the limitations provided in Section
9.05. The Trust Administrator will also make the monthly statements to
Certificateholders available each month to each party referred to in Section
4.04(a) via the Trust Administrator's website. The Trust Administrator's
website can be accessed at xxxx://xxx.XXXxxxxx.xxx/xxxxxx or at such other
site as the Trust Administrator may designate from time to time. Persons that
are unable to use the above website are entitled to have a paper copy mailed
to them via first class mail by calling the Trust Administrator at
000-000-0000. The Trust Administrator shall have the right to change the way
the reports referred to in this Section are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
to the Certificateholders. The Trust Administrator shall provide timely and
adequate notification to all above parties and to the Certificateholders
regarding any such change. The Trust Administrator may fully rely upon and
shall have no liability with respect to information provided by the Master
Servicer or any Servicer.
(b) Upon request, within a reasonable period of time after the end
of each calendar year, the Trust Administrator shall cause to be furnished to
each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i), (a)(ii)
and (a)(vi) of this Section 4.04 aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trust Administrator shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trust Administrator pursuant to any requirements of the Code
as from time to time in effect.
SECTION 4.05 Servicer to Cooperate.
Each Servicer shall provide to the Master Servicer, and the Master
Servicer shall provide to the Trust Administrator, the information set forth
in Exhibit G in such form as the Trust Administrator shall reasonably request
with respect to each Mortgage Loan serviced by the Master Servicer or such
Servicer no later than twelve noon on the Data Remittance Date to enable the
Trust Administrator to calculate the amounts to be distributed to each class
of certificates and otherwise perform its distribution, accounting and
reporting requirements hereunder.
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SECTION 4.06 Cross-Collateralization; Adjustments to Available Funds
(a) On each Distribution Date prior to the Senior Credit
Support Depletion Date, but after the date on which the aggregate Class
Principal Balance of Senior Certificates in Group I, Group II or Group
III has been reduced to zero, the Trust Administrator shall distribute
the principal portion of Available Distribution Amount on the Mortgage
Loans relating to such Senior Certificates that will have been paid in
full, to the holders of the Senior Certificates of the other Certificate
Groups, pro rata, based on Class Principal Balances, provided, however,
that the Trust Administrator shall not make such distribution on such
Distribution Date if (a) the Subordinate Pool Percentage for such
Distribution Date is greater than or equal to 200% of such Subordinate
Pool Percentage as of the Closing Date and (b) the average outstanding
principal balance of the Mortgage Loans in each Loan Group delinquent 60
days or more over the last six months, as a percentage of the related
Subordinate Component Balance, is less than 50%.
(b) If on any Distribution Date the Class Principal Balance of
Senior Certificates in Group I, Group II or Group III is greater than the
aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group (the "Undercollateralized Group"), then the Trust
Administrator shall reduce the Available Distribution Amount of the other
related Loan Groups that are not undercollateralized (the
"Overcollateralized Groups"), as follows:
(1) to add to the Available Distribution Amount of each
Undercollateralized Group an amount equal to the lesser of
(a) one month's interest on the Principal Transfer Amount
of each Undercollateralized Group at the Pass-Through Rate
applicable to the Undercollateralized Group(s) and (b)
Available Distribution Amount of the Overcollateralized
Group(s) remaining after making distributions to the
Certificates of the Overcollateralized Group(s) on such
Distribution Date pursuant to Section 4.01; and
(2) to the Senior Certificates of each Undercollateralized
Group, to the extent of the principal portion of Available
Distribution Amount of the Overcollateralized Group(s)
remaining after making distributions to the Senior
Certificates of the Overcollateralized Group(s) on such
Distribution Date pursuant to Section 4.01, until the
Class Principal Balance of the Senior Certificates of such
Undercollateralized Group(s) equals the aggregate Stated
Principal Balance of the Mortgage Loans in the related
Loan Group(s), any shortfall of such Available
Distribution Amount to be allocated among such
Undercollateralized Group(s), pro rata, based upon the
respective Principal Transfer Amounts.
(c) If more than one Overcollateralized Group exists on any
Distribution Date, reductions in the Available Funds of such groups to
make the payments required to be made pursuant to Section 4.06(b) on such
Distribution Date shall be made pro rata,
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based on the amount of payments required to be made to the
Undercollateralized Group(s).
SECTION 4.07 Basis Risk Reserve Fund
(a) On the Closing Date, the Trust Administrator shall establish and
maintain in its name, in trust for the benefit of the Holders of the
Certificates, the Basis Risk Reserve Fund. The Basis Risk Reserve Fund shall
be an Eligible Account, and funds on deposit therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trust Administrator pursuant to
this Agreement.
(b) On the Closing Date, $1,000 will be deposited by the Depositor
into the Basis Risk Reserve Fund. On each Distribution Date, the Trust
Administrator shall transfer from the Certificate Account to the Basis Risk
Reserve Fund pursuant to Sections 4.01, the Required Basis Risk Reserve Fund
Deposit. Amounts on deposit in the Basis Risk Reserve Fund can be withdrawn by
the Trust Administrator in connection with any Distribution Date to fund the
amounts required to be distributed to holders of the Group IV Certificates
pursuant to Sections 4.01(II) to the extent Monthly Excess Cashflow on such
date is insufficient to make such payments. On any Distribution Date, any
amounts on deposit in the Basis Risk Reserve Fund in excess of the Required
Basis Risk Reserve Fund Amount shall be distributed to the Class IV-X
Certificateholder pursuant to Section 4.01(II).
(c) Funds in the Basis Risk Reserve Fund may be invested in Eligible
Investments by the Trust Administrator at the direction of the Depositor. Any
net investment earnings on such amounts shall be payable to the Depositor. The
Depositor shall evidence ownership of the Basis Risk Reserve Fund for federal
tax purposes and the Depositor shall direct the Trustee in writing as to the
investment of amounts therein. In the absence of such written direction, all
funds in the Basis Risk Reserve Fund shall be invested by the Trust
Administrator in the One Group Institutional Prime Money Market Fund. The
Trust Administrator shall have no liability for losses on investments in
Eligible Investments made pursuant to this Section 4.07(c) (other than as
obligor on any such investments). Upon termination of the Trust Fund, any
amounts remaining in the Basis Risk Reserve Fund shall be distributed to the
Depositor in the same manner as if distributed pursuant to Section 4.01(II)
hereof.
(d) If the Trust Administrator shall deposit in the Basis Risk
Reserve Fund any amount not required to be deposited therein, it may at any
time withdraw such amount from such Basis Risk Reserve Fund, any provision
herein to the contrary notwithstanding.
(e) On the Distribution Date immediately after the Distribution Date
on which the aggregate Class Principal Balance of the LIBOR Certificates
equals zero, any amounts on deposit in the Basis Risk Reserve Fund not payable
on the LIBOR Certificates shall be deposited into the Certificate Account and
distributed to the Holder of the Class IV-X Certificate in the same manner as
if distributed pursuant to Section 4.01(II) hereof.
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ARTICLE V
ADVANCES BY THE MASTER SERVICER AND SERVICERS
SECTION 5.01 Advances by the Master Servicer and Servicers.
The Master Servicer and each Servicer shall deposit in the
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. The Master Servicer and each Servicer's obligation to make such Advances
as to any related Mortgage Loan will continue through the last Scheduled
Payment due prior to the payment in full of such Mortgage Loan, or through the
date that the related Mortgaged Property has, in the judgment of such
Servicer, been completely liquidated.
The Master Servicer and each Servicer shall be obligated to make
Advances in accordance with the provisions of this Agreement; provided,
however, that such obligation with respect to any related Mortgage Loan shall
cease if the Master Servicer or a Servicer determines, in its reasonable
opinion, that Advances with respect to such Mortgage Loan are Nonrecoverable
Advances. In the event that the Master Servicer or such Servicer determines
that any such advances are Nonrecoverable Advances, the Master Servicer or
such Servicer shall provide the Trust Administrator and the Trustee with a
certificate signed by a Servicing Officer evidencing such determination.
If an Advance is required to be made hereunder, the Master Servicer
or the related Servicer shall on the Cash Remittance Date either (i) deposit
in the Collection Account from its own funds an amount equal to such Advance,
(ii) cause to be made an appropriate entry in the records of the Collection
Account that funds in such account being held for future distribution or
withdrawal have been, as permitted by this Section 5.01, used by the Master
Servicer or such Servicer to make such Advance or (iii) make Advances in the
form of any combination of clauses (i) and (ii) aggregating the amount of such
Advance. Any such funds being held in a Collection Account for future
distribution and so used shall be replaced by the Master Servicer or such
Servicer from its own funds by deposit in such Collection Account on or before
any future Distribution Date in which such funds would be due.
If the amount of Advances received from a Servicer is less than the
amount required to be advanced by such Servicer, the Master Servicer shall be
obligated to make a payment in an amount equal to such deficiency.
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ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.
The Certificates shall be in substantially the forms set forth in
Exhibits A, B, C, D and E hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trust Administrator or
the Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any
of the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trust Administrator by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time when such signatures were affixed, authorized to sign on behalf of the
Trust Administrator shall bind the Trust Administrator, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication executed by the
Trust Administrator by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Trust Administrator shall maintain, or cause to be
maintained, a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trust Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. Upon surrender for registration of transfer of any
Certificate, the Trust Administrator shall execute, authenticate and deliver,
in the name of the
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designated transferee or transferees, one or more new Certificates in like
aggregate interest and of the same Class.
(b) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of authorized denominations and the same
aggregate interest in the Trust Fund and of the same Class, upon surrender of
the Certificates to be exchanged at the office or agency of the Trust
Administrator set forth in Section 6.06. Whenever any Certificates are so
surrendered for exchange, the Trust Administrator shall execute, authenticate
and deliver the Certificates which the Certificateholder making the exchange
is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by the Holder thereof or his attorney duly authorized in writing.
(c) No service charge to the Certificateholders shall be made for
any registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
(d) All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trust
Administrator in accordance with the Trust Administrator's customary
procedures.
(e) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. Except in connection with any transfer of a
Private Certificate by the Depositor to any affiliate, in the event that a
transfer is to be made in reliance upon an exemption from the 1933 Act and
such laws, in order to assure compliance with the 1933 Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer in substantially
the form set forth in Exhibit L (the "Transferor Certificate") and (i) deliver
a letter in substantially the form of either Exhibit M-1 (the "Investment
Letter") or Exhibit M-2 (the "Rule 144A Letter") or (ii) there shall be
delivered to the Trust Administrator at the expense of the transferor an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from the 1933 Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the 1933 Act pursuant to the registration
exemption provided by Rule 144A. The Trust Administrator shall cooperate with
the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trust
Administrator, the Depositor, each Seller, the Master Servicer, each Servicer
and the Special
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Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
(f) No transfer of an ERISA-Restricted Certificate shall be made to
any employee benefit or other plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Code, to a trustee or other person acting on behalf of any such plan, or to
any other person using "plan assets" to effect such acquisition, unless the
prospective transferee of a Certificate provides the Trust Administrator with
(i) in the case of an ERISA-Restricted Certificate that has been the subject
of an ERISA-Qualifying Underwriting, a certification as set forth in item (d)
of Exhibit M-1 or M-2 or item 15 of Exhibit N and in the case of any other
ERISA-Restricted Certificate, a certification as set forth in item d(i) of
Exhibit M-1 or M-2 or item 15(a) of Exhibit N; or (ii) an Opinion of Counsel
which establishes to the reasonable satisfaction of the Trustee and the Trust
Administrator that the purchase and holding of an ERISA-Restricted Certificate
by, on behalf of or with "plan assets" of such plan is permissible under
applicable local law, would not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and would not subject the Depositor, the Trustee, the Trust Administrator, the
Master Servicer or the Servicers or the Special Servicer to any obligation or
liability (including liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in this Agreement or any other liability. The
Trust Administrator shall require, where applicable, that such prospective
transferee certify to the Trust Administrator in writing the facts
establishing that such transferee is not such a plan and is not acting on
behalf of or using "plan assets" of any such plan to effect such acquisition.
(g) Additional restrictions on transfers of the Class AR
Certificates to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership interest
in a Class AR Certificate shall be deemed by the acceptance or
acquisition of such ownership interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trust
Administrator or its designee under clause (iii)(A) below to deliver
payments to a Person other than such Person and to negotiate the terms of
any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any
ownership interest in a Class AR Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any ownership
interest in a Class AR Certificate shall be other than a
Disqualified Organization and shall promptly notify the Trust
Administrator of any change or impending change in its status as
other than a Disqualified Organization.
(B) In connection with any proposed transfer of any
ownership interest in a Class AR Certificate to a U.S. Person, the
Trust Administrator shall require delivery to it, and shall not
register the transfer of a Class AR Certificate until its receipt of
(1) an affidavit and agreement (a "Transferee Affidavit and
Agreement" attached hereto as Exhibit N) from the proposed
transferee, in form and substance satisfactory to the Trust
Administrator, representing and
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warranting, among other things, that it is not a non-U.S. Person,
that such transferee is other than a Disqualified Organization, that
it is not acquiring its ownership interest in a Class AR Certificate
that is the subject of the proposed Transfer as a nominee, trustee
or agent for any Person who is not other than a Disqualified
Organization, that for so long as it retains its ownership interest
in a Class AR Certificate, it will endeavor to remain other than a
Disqualified Organization, and that it has reviewed the provisions
of this Section 6.02(g) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit O, from the Holder wishing
to transfer a Class AR Certificate, in form and substance
satisfactory to the Trust Administrator, representing and
warranting, among other things, that no purpose of the proposed
transfer is to allow such Holder to impede the assessment or
collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit
and Agreement by a proposed transferee under clause (B) above, if
the Trust Administrator has actual knowledge that the proposed
transferee is not other than a Disqualified Organization, no
transfer of an ownership interest in a Class AR Certificate to such
proposed transferee shall be effected.
(D) Each Person holding or acquiring any ownership
interest in a Class AR Certificate agrees, by holding or acquiring
such ownership interest, to require a Transferee Affidavit and
Agreement from the other Person to whom such Person attempts to
transfer its ownership interest and to provide a certificate to the
Trust Administrator in the form attached hereto as Exhibit O.
(ii) The Trust Administrator shall register the transfer of any
Class AR Certificate only if it shall have received the Transferee
Affidavit and Agreement, a certificate of the Holder requesting such
transfer in the form attached hereto as Exhibit O and all of such other
documents as shall have been reasonably required by the Trust
Administrator as a condition to such registration.
(iii) (A) If any Disqualified Organization shall become a Holder of
a Class AR Certificate, then the last preceding Holder that was other
than a Disqualified Organization shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such Class AR
Certificate. If any non-U.S. Person shall become a Holder of a Class AR
Certificate, then the last preceding Holder that is a U.S. Person shall
be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of
the transfer to such non-U.S. Person of such Class AR Certificate. If a
transfer of a Class AR Certificate is disregarded pursuant to the
provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Holder that was other than a Disqualified
Organization shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date of
registration of such transfer of such Class AR Certificate. The Trust
Administrator shall be under no liability to any Person for any
registration of transfer of a Class AR Certificate that is in fact not
permitted by this Section 6.02(g) or for making any payments due on such
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Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement.
(B) If any purported transferee of a Class AR Certificate
shall become a Holder of a Class AR Certificate in violation of the
restrictions in this Section 6.02(g) and to the extent that the
retroactive restoration of the rights of the Holder of such Class AR
Certificate as described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Depositor shall have the right,
without notice to the Holder or any prior Holder of such Class AR
Certificate, to sell such Class AR Certificate to a purchaser
selected by the Depositor on such terms as the Depositor may choose.
Such purported transferee shall promptly endorse and deliver a Class
AR Certificate in accordance with the instructions of the Depositor.
Such purchaser may be the Depositor itself or any affiliate of the
Depositor. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Depositor or its affiliates),
expenses and taxes due, if any, shall be remitted by the Depositor
to such purported transferee. The terms and conditions of any sale
under this clause (iii)(B) shall be determined in the sole
discretion of the Depositor, and the Depositor shall not be liable
to any Person having an ownership interest or a purported ownership
interest in a Class AR Certificate as a result of its exercise of
such discretion.
(iv) The Master Servicer and each Servicer, on behalf of the Trust
Administrator, shall make available, upon written request from the Trust
Administrator, all information reasonably available to it that is
necessary to compute any tax imposed (A) as a result of the transfer of
an ownership interest in a Class AR Certificate to any Person who is not
other than a Disqualified Organization, including the information
regarding "excess inclusions" of such Residual Certificate required to be
provided to the Internal Revenue Service and certain Persons as described
in Treasury Regulation Section 1.860D-1(b)(5), and (B) as a result of any
regulated investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organizations described in Section
1381 of the Code having as among its record holders at any time any
Person who is not other than a Disqualified Organization. Reasonable
compensation for providing such information may be required by the Master
Servicer or the Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior to this
Section (v) may be modified, added to or eliminated by the Depositor,
provided that there shall have been delivered to the Trust Administrator
the following:
(A) written notification from each Rating Agency to the
effect that the modification, addition to or elimination of such
provisions will not cause such Rating Agency to downgrade its
then-current rating of the Certificates; and
(B) a certificate of the Depositor stating that the
Depositor has received an Opinion of Counsel, in form and substance
satisfactory to the Depositor, to the effect that such modification,
addition to or elimination of such provisions will not cause the
Trust Fund to cease to qualify as a REMIC and will
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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 not other than a Disqualified Organization or (2) a
Certificateholder or another Person will be subject to a
REMIC-related tax caused by the transfer of applicable Class AR
Certificate to a Person which is not other than a Disqualified
Organization.
(vi) The following legend shall appear on each Class AR Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT
TO THE Servicer AND THE TRUST ADMINISTRATOR THAT (1) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR
ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF
THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE
CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY
SECTION 511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED TO AS
A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH
AFFIDAVIT SHALL INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR
OTHER DISPOSITION OF THIS CLASS AR CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH
HOLDER OF THE CLASS AR CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
(h) The Trust Administrator shall have no liability to the Trust
Fund arising from a transfer of any such Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 6.02;
provided, however, that the Trust Administrator shall not register the
transfer of any Class AR Certificate if it has actual knowledge that the
proposed transferee does not meet the qualifications of a permitted Holder of
a Class AR Certificate as set forth in this Section 6.02.
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SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trust
Administrator, or the Trust Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to each Servicer, the Trustee and the Trust Administrator
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee and the Trust
Administrator that such Certificate has been acquired by a bona fide
purchaser, the Trust Administrator shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and interest in the Trust Fund.
In connection with the issuance of any new Certificate under this Section
6.03, the Trust Administrator may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trust
Administrator) connected therewith. Any replacement Certificate issued
pursuant to this Section 6.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or
not the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, each Servicer, the Trust Administrator, and any agent of the Master
Servicer or any Servicer, the Trust Administrator may treat the person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for
all other purposes whatsoever, and none of the Master Servicer or the
Servicers, the Trust Administrator, nor any agent of the Master Servicer or a
Servicer or the Trust Administrator shall be affected by any notice to the
contrary.
SECTION 6.05 Access to List of Certificateholders' Names and
Addresses.
(a) If three or more Certificateholders (i) request in writing from
the Trust Administrator a list of the names and addresses of
Certificateholders, (ii) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and (iii) provide a copy of the
communication which such Certificateholders propose to transmit, then the
Trust Administrator shall, within ten Business Days after the receipt of such
request, afford such Certificateholders access during normal business hours to
a current list of the Certificateholders. The expense of providing any such
information requested by a Certificateholder shall be borne by the
Certificateholders requesting such information and shall not be borne by the
Trust Administrator or the Trustee. Every Certificateholder, by receiving and
holding a Certificate, agrees that the Trustee and the Trust Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
(b) The Master Servicer and each Servicer, so long as it is a
servicer hereunder, the Seller and the Depositor shall have unlimited access
to a list of the names and addresses of the Certificateholders which list
shall be provided by the Trust Administrator promptly upon request.
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SECTION 6.06 Maintenance of Office or Agency.
The Trust Administrator will maintain or cause to be maintained at
its expense an office or offices or agency or agencies in New York City where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trust Administrator in respect of the
Certificates and this Agreement may be served. The Trust Administrator
initially designates its Corporate Trust Office as its office for such
purpose. The Trust Administrator will give prompt written notice to the
Certificateholders of any change in the location of any such office or agency.
SECTION 6.07 Book-Entry Certificates.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder will receive a definitive
certificate representing such Beneficial Holder's interest in the
Certificates, except as provided in Section 6.09. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Beneficial Holders pursuant to Section 6.09:
(a) the provisions of this Section 6.07 shall be in full force and
effect with respect to the Book-Entry Certificates;
(b) the Depositor and the Trust Administrator may deal with the
Clearing Agency for all purposes with respect to the Book-Entry Certificates
(including the making of distributions on such Certificates) as the sole
Holder of such Certificates;
(c) to the extent that the provisions of this Section 6.07 conflict
with any other provisions of this Agreement, the provisions of this Section
6.07 shall control; and
(d) the rights of the Beneficial Holders of the Book-Entry
Certificates shall be exercised only through the Clearing Agency and the
Participants and shall be limited to those established by law and agreements
between such Beneficial Holders and the Clearing Agency and/or the
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.09, the initial
Clearing Agency will make book-entry transfers among the Participants and
receive and transmit distributions of principal and interest on the related
Book-Entry Certificates to such Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Book-Entry Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of such Certificates, such direction or consent may be
given by the Clearing Agency at the direction of Beneficial Holders owning
such Certificates evidencing the requisite percentage of principal amount of
such Certificates. The Clearing Agency may take conflicting actions with
respect to the Book-Entry Certificates to the extent that such actions are
taken on behalf of the Beneficial Holders.
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SECTION 6.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of Book-Entry
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to the related Certificateholders pursuant
to Section 6.09, the Trust Administrator shall give all such notices and
communications specified herein to be given to Holders of the Book-Entry
Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 6.09 Definitive Certificates.
If (a) the Depositor advises the Trust Administrator in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities under the Depository Agreement with respect to the
Certificates and the Trust Administrator or the Depositor is unable to locate
a qualified successor, (b) the Depositor, at its option, advises the Trust
Administrator in writing that it elects to terminate the book-entry system
with respect to the Book-Entry Certificates through the Clearing Agency or (c)
after the occurrence of an Event of Default, Holders of Book-Entry
Certificates evidencing not less than 66-2/3% of the aggregate Class Principal
Balance of the Book-Entry Certificates advise the Trust Administrator in
writing that the continuation of a book-entry system with respect to the such
Certificates through the Clearing Agency is no longer in the best interests of
the Holders of such Certificates with respect to the Book-Entry Certificates,
the Trust Administrator shall notify all Holders of such Certificates of the
occurrence of any such event and the availability of Definitive Certificates.
Upon surrender to the Trust Administrator of the such Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trust Administrator shall authenticate and
deliver the Definitive Certificates. Neither the Depositor nor the Trust
Administrator shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trust Administrator,
to the extent applicable with respect to such Definitive Certificates, and the
Trust Administrator shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
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ARTICLE VII
THE DEPOSITOR, THE SELLER, THE MASTER SERVICER, THE SERVICERS AND THE
SPECIAL SERVICER
SECTION 7.01 Liabilities of the Seller, the Depositor, the Master
Servicer, the Servicers and the Special Servicer.
The Depositor, the Seller, the Master Servicer and any Servicer
shall each be liable, including the liability of each Servicer to the Master
Servicer, in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
SECTION 7.02 Merger or Consolidation of the Seller, the Depositor,
the Master Servicer, the Servicers or the Special
Servicer.
Subject to the immediately succeeding paragraph, the Depositor, the
Seller, the Master Servicer, any Servicer and the Special Servicer will each
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights and franchises (charter and statutory) and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor, the Seller, the Master
Servicer, any Servicer or the Special Servicer may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the
Depositor, the Seller, the Master Servicer, any Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business of the
Depositor, the Seller or any Servicer, shall be the successor of the
Depositor, the 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 the Master Servicer, any
such Servicer or the Special 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, the Master Servicer or a Servicer may assign its
rights and delegate its duties and obligations under this Agreement; provided,
however, that the Master Servicer or such Servicer gives the Depositor, the
Trustee and the Trust Administrator notice of such assignment; and provided
further, that such purchaser or transferee accepting such assignment and
delegation shall be an institution that is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least
$15,000,000, and which is willing to service the Mortgage Loans and executes
and delivers to the Depositor, the Trustee and the Trust Administrator an
agreement accepting such delegation and assignment, which contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer or such Servicer, with like
effect as if originally named as a party to this Agreement; and provided
further, that each of the Rating Agencies acknowledge that its rating of the
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Certificates in effect immediately prior to such assignment will not be
qualified or reduced as a result of such assignment and delegation. In the
case of any such assignment and delegation, the Master Servicer or such
Servicer shall be released from its obligations under this Agreement (except
as provided above), except that the Master Servicer or the Servicer shall
remain liable for all liabilities and obligations incurred by it as the Master
Servicer or Servicer hereunder prior to the satisfaction of the conditions to
such assignment and delegation set forth in the preceding sentence.
SECTION 7.03 Limitation on Liability of the Seller, the Depositor,
the Master Servicer, the Servicers, the Special Servicer
and Others.
None of the Depositor, the Master Servicer, any Servicer, the
Seller, the Special Servicer nor any of the directors, officers, employees or
agents of the Depositor, the Master Servicer, any Servicer, the Seller or the
Special Servicer shall be under any liability to the Certificateholders for
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer, any
Servicer, the Seller or the Special Servicer against any breach of
representations or warranties made by it herein or protect the Depositor, the
Master Servicer, any Servicer, the Seller or the Special Servicer or any such
director, officer, employee or agent from any liability which would otherwise
be imposed by reasons of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Depositor, the Master Servicer, any Servicer, the
Seller and the Special Servicer and any director, officer, employee or agent
of the Depositor, the Master Servicer, any Servicer, the Seller or the Special
Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, any Servicer, the Seller and
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer, any Servicer, the Seller or the Special
Servicer shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Master Servicer, any Servicer, the Seller or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal action that
is not incidental to their respective duties hereunder and which in its
opinion may involve it in any expense or liability; provided, however, that
the Depositor, the Master Servicer, any Servicer, the Seller or the Special
Servicer may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties
of the parties hereto and interests of the Trustee, the Trust Administrator
and the Certificateholders hereunder. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Master Servicer or any
Servicer or the Special Servicer be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Master Servicer or the Servicer or the Special
Servicer has been advised of the likelihood of such loss or damage and
regardless of the form of action.
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SECTION 7.04 Master Servicer and Servicer Not to Resign; Transfer of
Servicing.
(a) A Servicer shall not resign from the obligations and duties
hereby imposed on it except (i) upon appointment of a successor servicer and
receipt by the Trustee and the Trust Administrator of a letter from each
Rating Agency that such a resignation and appointment will not result in a
downgrading of the rating of any of the Certificates related to the applicable
Mortgage Loans, or (ii) upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination under clause
(ii) permitting the resignation of the Master Servicer or a Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee and
the Trust Administrator. No such resignation shall become effective until the
successor servicer shall have assumed such Servicer's responsibilities,
duties, liabilities and obligations hereunder in accordance with Section 8.02
hereof.
(b) Notwithstanding the foregoing, DLJ Mortgage Capital, Inc. or its
transferee shall be entitled to request that the Master Servicer or a Servicer
resign and appoint a successor servicer; provided that such entity delivers to
the Trustee and the Trust Administrator the letter required in Section
7.04(a)(i) above.
SECTION 7.05 Master Servicer, Seller and Servicers May Own
Certificates.
Each of the Master Servicer, the Seller, the Special Servicer and
Servicers in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights as it would have if it were not
the Master Servicer, a Seller, the Special Servicer or a Servicer.
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ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default.
"Event of Default", wherever used herein, and as to 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 Master Servicer or the Servicer to remit to
the Certificateholders or to the Trust Administrator any payment other than an
Advance required to be made by the Master Servicer or 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 Master Servicer or the Servicer by the Trust
Administrator or the Depositor or to the Master Servicer or the Servicer and
the Trust Administrator by the Holders of Certificates having not less than
25% of the Voting Rights evidenced by the Certificates; or
(b) any failure by the Master Servicer or the Servicer to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Master Servicer or 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 Master Servicer or the Servicer by
the Trust Administrator or the Depositor, or to the Master Servicer or the
Servicer and the Trust Administrator by the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates; or
(c) if a representation or warranty set forth in Section 2.03 hereof
made solely in its capacity as the Master Servicer or a Servicer shall prove
to be materially incorrect as of the time made in any respect that materially
and adversely affects interests of the Certificateholders, and the
circumstances or condition in respect of which such representation or warranty
was incorrect shall not have been eliminated or cured within 90 days after the
date on which written notice thereof shall have been given to the Master
Servicer or the Servicer and Seller by the Trust Administrator for the benefit
of the Certificateholders or by the Depositor; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer or the Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(e) the Master Servicer or the Servicer shall consent to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of
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assets and liabilities or similar proceedings of or relating to the Master
Servicer or the Servicer or all or substantially all of the property of the
Master Servicer or the Servicer; or
(f) the Master Servicer or 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 Master Servicer or the Servicer to make any
Advance in the manner and at the time required to be made from its own funds
pursuant to this Agreement and after receipt of notice from the Trust
Administrator pursuant to Section 5.01, which failure continues unremedied
after 5 p.m., New York City time, on the Business Day immediately following
the Master Servicer or the Servicer's receipt of such notice.
If an Event of Default due to the actions or inaction of the Master
Servicer or a Servicer described in clauses (a) through (f) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trust Administrator shall at the
direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights evidenced by the Certificates, by notice in writing to the
Master Servicer or such Servicer (with a copy to the Rating Agencies),
terminate all of the rights and obligations of the Master Servicer or such
Servicer under this Agreement (other than rights to reimbursement for Advances
and Servicing Advances previously made, as provided in Section 3.08).
If an Event of Default described in clause (g) shall occur, the
Trust Administrator, or the Master Servicer, as applicable, 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 the
Master Servicer or such Servicer, as applicable, hereunder pursuant to Section
8.02, including the obligation to make Advances on such succeeding
Distribution Date pursuant to the terms hereof. No Event of Default with
respect to the Master Servicer or a Servicer shall affect the rights or duties
of any other Servicer or constitute an Event of Default as to any other
Servicer. An Event of Default with respect to a Servicer shall be deemed to be
an Event of Default with respect to the Master Servicer.
SECTION 8.02 Master Servicer or Trust Administrator to Act;
Appointment of Successor.
On and after the time the Master Servicer or a Servicer receives a
notice of termination pursuant to Section 8.01 hereof or resigns pursuant to
Section 7.04 hereof, subject to the provisions of Section 3.04 hereof, the
Trust Administrator (in the case of the Master Servicer), or the Master
Servicer (in the case of a Servicer), shall be the successor in all respects
to the Master Servicer or such Servicer, as applicable, in its capacity as
servicer under this Agreement and with respect to the transactions set forth
or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer or such
Servicer, as applicable, by the terms and provisions hereof, provided that the
Trust Administrator, or the Master Servicer, as applicable, shall not be
deemed to have made any representation or warranty as to any Mortgage Loan
made by the Master Servicer or any Servicer, as applicable, and shall not
effect any repurchases or substitutions of any Mortgage
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Loan. As compensation therefor, the Trust Administrator, or the Master
Servicer, as applicable, shall be entitled to all funds relating to the
Mortgage Loans that the Master Servicer or the related Servicer, as
applicable, would have been entitled to charge to the related Collection
Account if the Master Servicer or such Servicer, as applicable, had continued
to act hereunder (except that the terminated or resigning Servicer shall
retain the right to be reimbursed for advances (including, without limitation,
Advances and Servicing Advances) theretofore made by the Master Servicer or
the Servicer with respect to which it would be entitled to be reimbursed as
provided in Section 3.08 if it had not been so terminated or resigned as
Master Servicer or Servicer). Notwithstanding the foregoing, if the Trust
Administrator, or the Master Servicer, as applicable, has become the successor
to the Master Servicer or a Servicer, as applicable, in accordance with this
Section 8.02, the Trust Administrator, or the Master Servicer, as applicable,
may, if it shall be unwilling to so act, or shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution, the appointment of which does
not adversely affect the then current rating of the Certificates, as the
successor to the Master Servicer or a Servicer, as applicable, hereunder in
the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer or such Servicer, as applicable, provided
that such successor to the Master Servicer or the Servicer, as applicable,
shall not be deemed to have made any representation or warranty as to any
Mortgage Loan made by the Master Servicer or the related Servicer, as
applicable. Pending appointment of a successor to the Master Servicer or a
Servicer, as applicable, hereunder, the Trust Administrator, or the Master
Servicer, as applicable, unless such party is prohibited by law from so
acting, shall act in such capacity as provided herein. In connection with such
appointment and assumption, the Trust Administrator, or the Master Servicer,
as applicable, may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the Master Servicer or the related Servicer, as applicable,
hereunder. The Trust Administrator, or the Master Servicer, as applicable, and
such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. Neither the Trust
Administrator, the Master Servicer nor any other successor servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by
the failure of the Master Servicer or applicable Servicer to deliver, or any
delay in delivering, cash, documents or records to it.
A Master Servicer or a Servicer that has been terminated shall, at
the request of the Trust Administrator, or the Master Servicer, as applicable,
but at the expense of such Master Servicer or Servicer, as applicable, deliver
to the assuming party all documents and records relating to each Sub-Servicing
Agreement and the related Mortgage Loans and an accounting of amounts
collected and held by it and otherwise use commercially reasonable efforts to
effect the orderly and efficient transfer and assignment of each Sub-Servicing
Agreement, but only to the extent of the Mortgage Loans serviced thereunder,
to the assuming party. Notwithstanding anything to the contrary contained
herein, the termination of the Master Servicer or a Servicer under this
Agreement shall not extend to any Sub-Servicer meeting the requirements of
Section 3.02(a) and otherwise servicing the related Mortgage Loans in
accordance with the servicing provisions of this Agreement.
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The Master Servicer and each Servicer shall cooperate with the Trust
Administrator and any successor servicer in effecting the termination of the
terminated Master Servicer or Servicer's, as applicable, responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be
credited by the Master Servicer or such Servicer, as applicable, to the
applicable Collection Account or thereafter received with respect to the
Mortgage Loans.
Neither the Trust Administrator nor any other successor servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or any delay in making, any distribution hereunder or any portion thereof
caused by (a) the failure of the Master Servicer or any Servicer to (i)
deliver, or any delay in delivering, cash, documents or records to it, (ii)
cooperate as required by this Agreement, or (iii) deliver the Mortgage Loan to
the Trust Administrator as required by this Agreement, or (b) restrictions
imposed by any regulatory authority having jurisdiction over the Master
Servicer or the related Servicer.
Any successor to the Master Servicer or a Servicer as servicer shall
during the term of its service as servicer maintain in force the policy or
policies that the Master Servicer or such Servicer is required to maintain
pursuant to Section 3.09(b) hereof.
SECTION 8.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to the Master
Servicer or any Servicer, the Trust Administrator shall give prompt written
notice thereof to the Seller, and the Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating Agencies,
or, as applicable, the Master Servicer shall give prompt written notice
thereof to the Trust Administrator.
(b) Within two Business Days after the occurrence of any Event of
Default, the Trust Administrator shall transmit by mail to the Seller and all
Certificateholders, and the Rating Agencies notice of each such Event of
Default hereunder known to the Trust Administrator, unless such Event of
Default shall have been cured or waived.
SECTION 8.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (g) of Section 8.01 may be waived, only by all of the
Holders of Certificates affected by such default or Event of Default and (b)
no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 11.01(b)(i), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been cured and remedied for
every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon
except to the extent expressly so waived.
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ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default of which a Responsible Officer of the Trustee shall have actual
knowledge has occurred and remains uncured, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. Any
permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee shall
have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement, the
Trustee shall notify the Certificateholders of such instrument in the event
that the Trustee, after so requesting, does not receive a satisfactorily
corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct, its negligent failure to perform its obligations
in compliance with this Agreement, or any liability which would be imposed by
reason of its willful misfeasance or bad faith; provided, however, that:
(a) prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge, and after
the curing or of all such Events of Default that may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be personally
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement which it reasonably believed in good faith to be genuine
and to have been duly executed by the proper authorities respecting any
matters arising hereunder;
(b) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless the Trustee was negligent in ascertaining
or investigating the pertinent facts;
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(c) the Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with this Agreement at the direction of the Holders of
Certificates evidencing greater than 50% of the Voting Rights allocated
to each Class of Certificates relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(d) no provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) the Trustee shall have no responsibility for any act or
omission of the Trust Administrator, it being understood and agreed that
the Trustee and Trust Administrator are independent contractors and not
agents, partners or joint venturers.
Except with respect to an Event of Default described in clause (a)
of Section 8.01, the Trustee shall not be deemed to have knowledge of any
Event of Default or event which, with notice or lapse of time, or both, would
become an Event of Default, unless a Responsible Officer of the Trustee shall
have received written notice thereof from a Servicer, the Depositor, or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Master
Servicer or 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;
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(ii) the Trustee may consult with counsel, financial advisors or
accountants and any advice of such Persons or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge (which has
not been cured or waived), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default that may have
occurred, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing greater than 50% of the Voting Rights
allocated to each Class of Certificates; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action; the
reasonable expense of every such investigation shall be paid (A) by the
Master Servicer or by the applicable Servicer in the event that such
investigation relates to an Event of Default by the Master Servicer or by
such Servicer, respectively, if an Event of Default by the Master
Servicer or by such Servicer shall have occurred and is continuing, and
(B) otherwise by the Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed with
due care;
(vii) the Trustee shall not be required to expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder if it shall
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have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement; and
(ix) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or the Master Servicer or a Servicer, as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement, the
Certificates or of any Mortgage Loan or related document. The Trustee shall
not be accountable for the use or application by the Depositor, the Seller,
the Master Servicer or the Servicers of any funds paid to the Depositor or the
Master Servicer or any Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor, the Seller or
the Master Servicer or the Servicers. The Trustee shall not be responsible for
the legality or validity of this Agreement or the validity, priority,
perfection or sufficiency of the security for the Certificates issued or
intended to be issued hereunder. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to record this Agreement.
SECTION 9.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the other
parties hereto and with their Affiliates, with the same rights as it would
have if it were not the Trustee.
SECTION 9.05 Trustee's Fees and Expenses.
The Trustee shall be compensated by the Trust Administrator as
separately agreed. The Trustee and any director, officer, employee or agent of
the Trustee shall be indemnified by the Depositor and held harmless against
any loss, liability or expense (including reasonable attorney's fees and
expenses) (i) incurred in connection with any claim or legal action relating
to (a) this Agreement, (b) the Certificates, or (c) the performance of any of
the Trustee's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder
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or incurred by reason of any action of the Trustee taken at the direction of
the Certificateholders and (ii) resulting from any error in any tax or
information return prepared by the Master Servicer or a Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation
or removal of the Trustee hereunder. Without limiting the foregoing, the
Depositor covenants and agrees, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any such expense, disbursement
or advance as may arise from the Trustee's negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that
the Trustee must engage such persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided herein, the Trustee
shall not be entitled to payment or reimbursement for any routine ongoing
expenses incurred by the Trustee in the ordinary course of its duties as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses. Anything in this Agreement to the contrary notwithstanding, in
no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.
SECTION 9.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having ratings on its long-term debt obligations at the time of
such appointment in at least the third highest rating category by both Xxxxx'x
or S&P or such lower ratings as will not cause Xxxxx'x or S&P to lower their
then-current ratings of the Class A Certificates, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 9.07 hereof.
SECTION 9.07 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (a) giving written notice of resignation to the Depositor,
the Seller, the Trust Administrator, the Master Servicer, the Special Servicer
and the Servicers and by mailing notice of resignation by first class mail,
postage prepaid, to the Certificateholders at their addresses appearing on the
Certificate Register, and to the Rating Agencies, not less than 60 days before
the date specified in such notice when, subject to Section 9.08, such
resignation is to take effect,
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and (b) acceptance by a successor trustee in accordance with Section 9.08
meeting the qualifications set forth in Section 9.06.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation or if
the Trustee breaches any of its obligations or representations hereunder, then
the Depositor may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee and one copy to the successor trustee. The Trustee
may also be removed at any time by the Holders of Certificates evidencing not
less than 50% of the Voting Rights evidenced by the Certificates. Notice of
any removal of the Trustee and acceptance of appointment by the successor
trustee shall be given to the Rating Agencies by the Depositor.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for the
appointment of a successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.08 hereof.
SECTION 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, upon receipt of all amounts due it hereunder, and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 9.06 hereof and its
acceptance shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown
in the Certificate Register. If the Depositor fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
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SECTION 9.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 9.06 hereof without the execution or filing of any paper
or further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer or the Servicers and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Fund, and to vest in such Person or
Persons, in such capacity and for the benefit of the applicable
Certificateholders, such title to the Trust Fund, or any part thereof, and,
subject to the other provisions of this Section 9.10, such powers, duties,
obligations, rights and trusts as the Master Servicer or the Servicers and the
Trustee may consider necessary or desirable. If the Master Servicer or the
Servicers shall not have joined in such appointment within fifteen days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
9.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 9.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for any obligation of the Trustee under this
Agreement to advance funds on behalf of the Master Servicer or 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 Master Servicer
or the Servicer), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Fund or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the Trustee;
(b) no trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder; and
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(c) the Master Servicer or the Servicers and the Trustee acting
jointly may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer or the Servicers and
the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. The Trust Administrator shall not be
responsible for all action or inaction of any separate trustee or co-trustee.
If any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent permitted
by law, without the appointment of a new or successor trustee.
SECTION 9.11 Office of the Trustee.
The office of the Trustee for purposes of receipt of notices and
demands is the Corporate Trust Office.
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ARTICLE X
CONCERNING THE TRUST ADMINISTRATOR
SECTION 10.01 Duties of Trust Administrator.
The Trust Administrator, prior to the occurrence of an Event of
Default of which a Responsible Officer of the Trust Administrator shall have
actual knowledge and after the curing or waiver of all Events of Default that
may have occurred, undertakes with respect to the Trust Fund to perform such
duties and only such duties as are specifically set forth in this Agreement.
In case an Event of Default of which a Responsible Officer of the Trust
Administrator shall have actual knowledge has occurred and remains uncured,
the Trust Administrator shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs. Any permissive right of the Trust
Administrator set forth in this Agreement shall not be construed as a duty.
The Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trust Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they conform to the requirements of this
Agreement. The Trust Administrator shall have no duty to recompute,
recalculate or verify the accuracy of any resolution, certificate, statement,
opinion, report, document, order or other instrument so furnished to the Trust
Administrator. If any such instrument is found not to conform in any material
respect to the requirements of this Agreement, the Trust Administrator shall
notify the Certificateholders of such instrument in the event that the Trust
Administrator, after so requesting, does not receive a satisfactorily
corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct, its negligent failure to
perform its obligations in compliance with this Agreement, or any liability
which would be imposed by reason of its willful misfeasance or bad faith;
provided, however, that:
(a) prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trust Administrator shall have actual
knowledge, and after the curing or of all such Events of Default that may
have occurred, the duties and obligations of the Trust Administrator
shall be determined solely by the express provisions of this Agreement,
the Trust Administrator shall not be personally liable except for the
performance of such duties and obligations as are specifically set forth
in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trust Administrator and the Trust
Administrator may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trust Administrator and
conforming to the requirements of this Agreement which it reasonably
believed in good faith to be genuine and to have been duly executed by
the proper authorities respecting any matters arising hereunder;
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(b) the Trust Administrator shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trust Administrator, unless the Trust
Administrator was negligent in ascertaining or investigating the
pertinent facts;
(c) the Trust Administrator shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with this Agreement or at the direction of the
Holders of Certificates evidencing greater than 50% of the Voting Rights
allocated to each Class of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the Trust
Administrator, or exercising any trust or power conferred upon the Trust
Administrator, under this Agreement; and
(d) no provision of this Agreement shall require the Trust
Administrator to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
The Trust Administrator shall have no duty (A) to see to any
recording, filing or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording, filing
or depositing or to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, or (C) to see to the payment or discharge of any
tax, assessment or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund other than from funds available in the Certificate Account.
Except with respect to an Event of Default described in clause (a)
of Section 8.01, the Trust Administrator shall not be deemed to have knowledge
of any Event of Default or event which, with notice or lapse of time, or both,
would become an Event of Default, unless a Responsible Officer of the Trust
Administrator shall have received written notice thereof from the Master
Servicer or a Servicer, the Depositor, or a Certificateholder, or a
Responsible Officer of the Trust Administrator has actual notice thereof, and
in the absence of such notice no provision hereof requiring the taking of any
action or the assumption of any duties or responsibility by the Trust
Administrator following the occurrence of any Event of Default or event which,
with notice or lapse of time or both, would become an Event of Default, shall
be effective as to the Trust Administrator.
The Trust Administrator shall have no duty hereunder with respect to
any complaint, claim, demand, notice or other document it may receive or which
may be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trust Administrator shall use its best efforts to remit to
the Master Servicer or the Servicer upon receipt of any such complaint, claim,
demand, notice or other document (i) which is delivered to the Corporate Trust
Office of the Trust Administrator, (ii) of which a Responsible Officer has
actual knowledge, and (iii) which
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contains information sufficient to permit the Trust Administrator to make a
determination that the real property to which such document relates is a
Mortgaged Property.
SECTION 10.02 Certain Matters Affecting the Trust Administrator.
(a) Except as otherwise provided in Section 10.01:
(i) the Trust Administrator may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors, Servicing Officers or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Trust Administrator may consult with counsel, financial
advisors or accountants and any advice of such Persons or opinion of
counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion of counsel;
(iii) the Trust Administrator shall be under no obligation to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trust Administrator
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trust Administrator of the obligation,
upon the occurrence of an Event of Default of which a Responsible Officer
of the Trust Administrator shall have actual knowledge (which has not
been cured or waived), to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) the Trust Administrator shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default that may have
occurred, the Trust Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing
greater than 50% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Trust Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trust Administrator, not reasonably assured to the
Trust Administrator by the security afforded to it by the terms
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of this Agreement, the Trust Administrator may require reasonable
indemnity against such expense or liability as a condition to taking any
such action; the reasonable expense of every such investigation shall be
paid (A) by the Master Servicer or by the applicable Servicer in the
event that such investigation relates to an Event of Default by the
Master Servicer or by such Servicer, respectively, if an Event of Default
by the Master Servicer or such Servicer shall have occurred and is
continuing, and (B) otherwise by the Certificateholders requesting the
investigation;
(vi) the Trust Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trust Administrator shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care;
(vii) the Trust Administrator shall not be required to expend
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) the Trust Administrator shall not be liable for any loss
on any investment of funds pursuant to this Agreement except as provided
in Section 3.05(e);
(ix) the right of the Trust Administrator to perform any
discretionary act enumerated in this Agreement shall not be construed as
a duty, and the Trust Administrator shall not be answerable for other
than its negligence or willful misconduct in the performance of such act;
and
(x) The Trust Administrator shall not be required to give any
bond or surety in respect of the execution of the Trust Fund created
hereby or the powers granted hereunder.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trust Administrator, may be enforced by it
without the possession of any of the Certificates, or the production thereof
at the trial or other proceeding relating thereto, and any such suit, action
or proceeding instituted by the Trust Administrator shall be brought in its
name for the benefit of all the Holders of such Certificates, subject to the
provisions of this Agreement.
SECTION 10.03 Trust Administrator Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or the Master Servicer or a Servicer, as the case may be, and
the Trust Administrator assumes no responsibility for their correctness. The
Trust Administrator makes no representations as to the validity or sufficiency
of this Agreement, the Certificates or of any Mortgage Loan or related
document. The Trust Administrator shall not be accountable for the use or
application by the Depositor, the Seller, the Master Servicer or the Servicers
of any funds paid to the Depositor or the Master Servicer or any Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the
Certificate Account by the Depositor, the Seller or the Master Servicer or the
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Servicers. The Trust Administrator shall not be responsible for the legality
or validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be
issued hereunder. The Trust Administrator shall have no responsibility for
filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection for any security
interest or lien granted to it hereunder or to record this Agreement.
SECTION 10.04 Trust Administrator May Own Certificates.
The Trust Administrator in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights as it would
have if it were not the Trust Administrator.
SECTION 10.05 Trust Administrator's Fees and Expenses.
The Trust Administrator and any director, officer, employee or agent
of the Trust Administrator shall be indemnified by DLJMC and held harmless (up
to a maximum of $150,000) against any loss, liability or expense (including
reasonable attorney's fees and expenses) (i) incurred in connection with any
claim or legal action relating to (a) this Agreement, (b) the Certificates,
(c) the Custodial Agreement, or (d) the performance of any of the Trust
Administrator's duties hereunder or under the Custodial Agreement, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of any of the Trust Administrator's
duties hereunder or incurred by reason of any action of the Trust
Administrator taken at the direction of the Certificateholders and (ii)
resulting from any error in any tax or information return prepared by the
Master Servicer or a Servicer. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trust Administrator
hereunder. Without limiting the foregoing, DLJMC covenants and agrees, except
as otherwise agreed upon in writing by DLJMC and the Trust Administrator, and
except for any such expense, disbursement or advance as may arise from the
Trust Administrator's negligence, bad faith or willful misconduct, to pay or
reimburse the Trust Administrator (up to a maximum of $150,000), for all
reasonable expenses, disbursements and advances incurred or made by the Trust
Administrator in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer or appraiser that is not regularly employed by the
Trust Administrator, to the extent that the Trust Administrator must engage
such persons to perform acts or services hereunder and (C) printing and
engraving expenses in connection with preparing any Definitive Certificates.
Except as otherwise provided herein, the Trust Administrator shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trust Administrator in the ordinary course of its duties as Trust
Administrator, Registrar, Tax Matters Person or Paying Agent hereunder or for
any other expenses. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trust Administrator be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trust Administrator
has been advised of the likelihood of such loss or damage and regardless of
the form of action.
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SECTION 10.06 Eligibility Requirements for Trust Administrator.
The Trust Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws of any
state or the United States of America, authorized under such laws to exercise
corporate trust powers, having ratings on its long-term debt obligations at
the time of such appointment in at least the third highest rating category by
both Xxxxx'x and S&P or such lower ratings as will not cause Xxxxx'x or S&P to
lower their then-current ratings of the Class A Certificates, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
or association publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 10.06 the combined capital
and surplus of such corporation or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trust Administrator shall
cease to be eligible in accordance with the provisions of this Section 10.06,
the Trust Administrator shall resign immediately in the manner and with the
effect specified in Section 10.07 hereof.
SECTION 10.07 Resignation and Removal of Trust Administrator.
The Trust Administrator may at any time resign and be discharged
from the trusts hereby created by (a) giving written notice of resignation to
the Depositor, the Seller, the Trustee, the Master Servicer, the Special
Servicer and the Servicers and by mailing notice of resignation by first class
mail, postage prepaid, to the Certificateholders at their addresses appearing
on the Certificate Register, and to the Rating Agencies, not less than 60 days
before the date specified in such notice when, subject to Section 10.08, such
resignation is to take effect, and (b) acceptance by a successor trust
administrator in accordance with Section 10.08 meeting the qualifications set
forth in Section 10.06.
If at any time the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 10.06 hereof and shall fail to
resign after written request thereto by the Depositor, or if at any time the
Trust Administrator shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trust Administrator or of its
property shall be appointed, or any public officer shall take charge or
control of the Trust Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation or if the Trust
Administrator breaches any of its obligations or representations hereunder,
then the Depositor may remove the Trust Administrator and appoint a successor
trust administrator by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trust Administrator and one copy to the
successor trust administrator. The Trust Administrator may also be removed at
any time by the Trustee or the Holders of Certificates evidencing not less
than 50% of the Voting Rights evidenced by the Certificates. Notice of any
removal of the Trust Administrator and acceptance of appointment by the
successor trust administrator shall be given to the Rating Agencies by the
Depositor.
If no successor trust administrator shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trust
Administrator may, at the Trust Fund's expense, petition any court of
competent jurisdiction for the appointment of a successor trust administrator.
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Any resignation or removal of the Trust Administrator and
appointment of a successor trust administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance of
appointment by the successor trust administrator as provided in Section 10.08
hereof.
SECTION 10.08 Successor Trust Administrator.
Any successor trust administrator appointed as provided in Section
10.07 hereof shall execute, acknowledge and deliver to the Depositor and to
its predecessor trust administrator an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trust
administrator shall become effective and such successor trust administrator,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as trust administrator herein. The
Depositor, upon receipt of all amounts due it hereunder, and the predecessor
trust administrator shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trust administrator all such rights,
powers, duties, and obligations.
No successor trust administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor trust administrator shall be eligible under the provisions of
Section 10.06 hereof and its acceptance shall not adversely affect the then
current rating of the Certificates.
Upon acceptance of appointment by a successor trust administrator as
provided in this Section 10.08, the Depositor shall mail notice of the
succession of such trust administrator hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within ten days after acceptance of
appointment by the successor trust administrator, the successor trust
administrator shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 10.09 Merger or Consolidation of Trust Administrator.
Any Person into which the Trust Administrator may be merged or
converted or with which it may be consolidated or any Person resulting from
any merger, conversion or consolidation to which the Trust Administrator shall
be a party, or any Person succeeding to the business of the Trust
Administrator, shall be the successor of the Trust Administrator hereunder,
provided that such Person shall be eligible under the provisions of Section
10.06 hereof without the execution or filing of any paper or further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 10.10 Appointment of Co-Trust Administrator or Separate
Trust Administrator.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer or the Servicers and the Trust
Administrator acting jointly shall have the power and shall execute
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and deliver all instruments to appoint one or more Persons approved by the
Trust Administrator to act as co-trust administrator or co-trust
administrators jointly with the Trust Administrator, or separate trust
administrator or separate trust administrators, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for
the benefit of the applicable Certificateholders, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this
Section 10.10, such powers, duties, obligations, rights and trusts as the
Master Servicer or the Servicers and the Trust Administrator may consider
necessary or desirable. If the Master Servicer or the Servicers shall not have
joined in such appointment within fifteen days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and
be continuing, the Trust Administrator alone shall have the power to make such
appointment. No co-trust administrator or separate trust administrator
hereunder shall be required to meet the terms of eligibility as a successor
trust administrator under Section 10.06 and no notice to Certificateholders of
the appointment of any co-trust administrator or separate trust administrator
shall be required under Section 10.08.
Every separate trust administrator and co-trust administrator shall,
to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trust Administrator, except for any obligation of the Trust
Administrator under this Agreement to advance funds on behalf of the Master
Servicer or the Servicer, shall be conferred or imposed upon and exercised or
performed by the Trust Administrator and such separate trust administrator or
co-trust administrator jointly (it being understood that such separate trust
administrator or co-trust administrator is not authorized to act separately
without the Trust Administrator joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed by the Trust Administrator (whether as Trust Administrator
hereunder or as successor to the Master Servicer or the Servicer), the Trust
Administrator shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trust
administrator or co-trust administrator, but solely at the direction of the
Trust Administrator;
(b) no trust administrator hereunder shall be held personally liable
by reason of any act or omission of any other trust administrator hereunder;
and
(c) the Master Servicer or the Servicers and the Trust Administrator
acting jointly may at any time accept the resignation of or remove any
separate trust administrator or co-trust administrator.
Any notice, request or other writing given to the Trust
Administrator shall be deemed to have been given to each of the then separate
trust administrators and co-trust administrators, as effectively as if given
to each of them. Every instrument appointing any separate trust administrator
or co-trust administrator shall refer to this Agreement and the conditions of
this Article X. Each separate trust administrator and co-trust administrator,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trust Administrator or separately, as may be
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provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the Trust
Administrator. Every such instrument shall be filed with the Trust
Administrator and a copy thereof given to the Master Servicer or the Servicers
and the Depositor.
Any separate trust administrator or co-trust administrator may, at
any time, constitute the Trust Administrator, its agent or attorney-in-fact,
with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Agreement on its behalf and in its
name. The Trust Administrator shall not be responsible for any action or
inaction of any separate Trust Administrator or Co-Trust Administrator. If any
separate trust administrator or co-trust administrator shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trust
Administrator, to the extent permitted by law, without the appointment of a
new or successor trust administrator.
SECTION 10.11 Office of the Trust Administrator.
The office of the Trust Administrator for purposes of receipt of
notices and demands is the Corporate Trust Office.
SECTION 10.12 Tax Return.
The Master Servicer and each Servicer, upon request, will furnish
the Trust Administrator with all such information in the possession of the
Master Servicer or such Servicer as may be reasonably required in connection
with the preparation by the Trust Administrator of all tax and information
returns of the Trust Fund, and the Trust Administrator shall sign such
returns. The Master Servicer and each Servicer, severally and not jointly,
shall indemnify the Trust Administrator for all reasonable costs, including
legal fees and expenses, related to errors in such tax returns due to errors
only in information provided by the Master Servicer or by such Servicer.
SECTION 10.13 Filings.
The Trust Administrator shall, on behalf of the Trust, cause to be
filed with the Securities and Exchange Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder. In connection with the preparation and filing of such
periodic reports, the Depositor and the Master Servicer and each Servicer
shall timely provide to the Trust Administrator all material information
requested by the Trust Administrator and reasonably available to them which is
required to be included in such reports. The Trust Administrator shall have no
liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trust Administrator's
inability or failure to obtain any information not resulting from its own
negligence or willful misconduct.
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SECTION 10.14 Determination of Certificate Index.
On each Interest Determination Date, the Trust Administrator shall
determine the Certificate Index for the Accrual Period and inform the Master
Servicer and each Servicer of such rate.
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ARTICLE XI
TERMINATION
SECTION 11.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans.
The obligations and responsibilities of the Master Servicer, the
Special Servicer or the Servicers, the Seller, the Depositor, the Trustee and
the Trust Administrator created hereby with respect to the Trust Fund created
hereby shall terminate upon the earlier of:
(i) with respect to Loan Group I, Loan Group II and Loan Group III,
the repurchase by Vesta at its election, of all Mortgage Loans in Loan
Group I, Loan Group II and Loan Group III and all property acquired in
respect of any Mortgage Loan remaining in such Loan Group I, Loan Group
II and Loan Group III, which repurchase right Vesta may exercise at its
sole and exclusive election as of any Distribution Date (such applicable
Distribution Date with respect to Loan Group I, Loan Group II and Loan
Group III being herein referred to as the "Optional Termination Date") on
or after the date on which the aggregate Principal Balance of the
Mortgage Loans in Loan Group I, Loan Group II and Loan Group III at the
time of the repurchase is less than 5% of the aggregate Principal Balance
of the Mortgage Loans in Loan Group I, Loan Group II and Loan Group III
as of the Cut-off Date;
(ii) with respect to Loan Group IV, the repurchase by Vesta at its
election, of all Mortgage Loans in Loan Group IV and all property
acquired in respect of any Mortgage Loan remaining in Loan Group IV,
which repurchase right Vesta may exercise at its sole and exclusive
election as of any Distribution Date (such applicable Distribution Date
with respect to Loan Group IV, being herein referred to as the "Optional
Termination Date") on or after the date on which the aggregate Principal
Balance of the Mortgage Loans in Loan Group IV, at the time of the
repurchase is less than 5% of the aggregate Principal Balance of the
Mortgage Loans in Loan Group IV as of the Cut-off Date; and
(iii) the later of (i) twelve months after the maturity of the last
Mortgage Loan remaining in the Trust Fund, (ii) the liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (iii) the
distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement.
In no event shall the trust created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the last survivor
of the descendants of Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the United
States to Great Britain, living on the date of execution of this Agreement or
(ii) the Distribution Date in 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
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thereon from the date to which such interest was paid or advanced at the sum
of the applicable Mortgage Rate, to but not including the Due Date in the
month of the final Distribution Date (or the Net Mortgage Rate with respect to
any Mortgage Loan currently serviced by the entity exercising such Optional
Termination) and (ii) with respect to any REO Property, the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Depositor
at the expense of the Depositor and (y) the Stated Principal Balance of each
Mortgage Loan in the related Loan Groups related to any REO Property, in each
case and (iii) any remaining unreimbursed Advances, Servicing Advances and
Servicing Fees. The Trust Administrator shall give notice to the Rating
Agencies of election to purchase the Mortgage Loans pursuant to this Section
11.01 and of the Optional Termination Date.
SECTION 11.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section 11.01,
Vesta shall, at least twenty days prior to the date notice is to be mailed to
the affected Certificateholders notify the Trustee and Trust Administrator of
such Optional Termination Date and of the applicable purchase price of the
Mortgage Loans to be purchased.
(b) Any purchase of the Mortgage Loans by 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 Trust Administrator of an
Officer's Certificate of Vesta certifying as to the deposit of such purchase
price into the Certificate Account, the Trust Administrator and each co-trust
administrator and separate trust administrator, if any, then acting as such
under this Agreement, shall, upon request and at the expense of Vesta execute
and deliver all such instruments of transfer or assignment, in each case
without recourse, as shall be reasonably requested by Vesta to vest title in
Vesta in the Mortgage Loans so purchased and shall transfer or deliver to
Vesta the purchased Mortgage Loans. Any distributions on the Mortgage Loans
which have been subject to an Optional Termination received by the Trustee
subsequent to (or with respect to any period subsequent to) the Optional
Termination Date shall be promptly remitted by it to Vesta.
(c) Notice of the Distribution Date on which the Master Servicer or
a Servicer anticipates that the final distribution shall be made (whether upon
Optional Termination or otherwise), shall be given promptly by the Master
Servicer or such Servicer to the Trust Administrator and by the Trust
Administrator by first class mail to Holders of the affected Certificates.
Such notice shall be mailed no earlier than the 15th day and not later than
the 10th day preceding the 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
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Trust Administrator shall give a second written notice to the remaining such
Certificateholders to surrender their Certificates for cancellation and
receive the final distribution with respect thereto. If within six months
after the second notice all the Certificates shall not have been surrendered
for cancellation, the Trust Administrator may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain subject
to the Trust Fund.
SECTION 11.03 Additional Termination Requirements.
(a) In the event Vesta exercises its purchase option pursuant to
Section 11.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, unless the Trustee have received an Opinion
of Counsel to the effect that the failure to comply with the requirements of
this Section will not (i) result in the imposition of taxes on a "prohibited
transaction" of the REMIC, as described in Section 860F of the Code, or (ii)
cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date set forth in
the notice given by the Vesta under Section 11.02, the Holder of the
Class AR Certificates shall adopt a plan of complete liquidation of the
REMIC; and
(ii) at or after the time of adoption of any such plan of complete
liquidation for the Trust Fund at or prior to the final Distribution
Date, the Trustee shall sell all of the assets of the Trust Fund to the
Depositor for cash; provided, however, that in the event that a calendar
quarter ends after the time of adoption of such a plan of complete
liquidation but prior to the final Distribution Date, the Trustee shall
not sell any of the assets of the Trust Fund prior to the close of that
calendar quarter.
(b) By its acceptance of a Class AR Certificate, the Holder thereof
hereby agrees to adopt such a plan of complete liquidation and to take such
other action in connection therewith as may be reasonably required to
liquidate and otherwise terminate the Trust Fund.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Seller, the Trust Administrator and the Trustee, without the consent of any of
the Certificateholders,
(i) to cure any error or ambiguity,
(ii) to correct or supplement any provisions herein that may be
inconsistent with any other provisions herein or in the Prospectus
Supplement,
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or desirable to maintain the qualification
of the Trust Fund as a REMIC at all times that any Certificate is
outstanding or to avoid or minimize the risk of the imposition of any tax
on the Trust Fund pursuant to the Code that would be a claim against the
Trust Fund, provided that the Trustee has received an Opinion of Counsel
to the effect that (A) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of
any such tax and (B) such action will not adversely affect the status of
the Trust Fund as a REMIC or adversely affect in any material respect the
interests of any Certificateholder,
(iv) in connection with the appointment of a successor servicer, to
modify, eliminate or add to any of the servicing provisions, provided the
Rating Agencies confirm the rating of the Certificates; or
(v) to make any other provisions with respect to matters or
questions arising under this Agreement that are not materially
inconsistent with the provisions of this Agreement, provided that such
action shall not adversely affect in any material respect the interests
of any Certificateholder or cause an Adverse REMIC Event.
(b) This Agreement may be amended from time to time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Seller, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3% of
the Voting Rights of all the Certificates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
the Certificates; provided, however, that no such amendment may (i) reduce in
any manner the amount of, delay the timing of or change the manner in which
payments received on or with respect to Mortgage Loans are required to be
distributed with respect to any Certificate without the consent of the Holder
of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of a Class of Certificates in a manner other than as
set forth in (i) above without the consent of the Holders of Certificates
evidencing not less than 66-2/3% of the Voting Rights of such Class, (iii)
reduce the aforesaid percentages of Voting Rights, the holders of which are
required to consent to any such
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amendment without the consent of 100% of the Holders of Certificates of the
Class affected thereby, (iv) change the percentage of the Stated Principal
Balance of the Mortgage Loans specified in Section 11.01(a) relating to
optional termination of the Trust Fund or (v) modify the provisions of this
Section 12.01.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trust Administrator may prescribe.
(c) Promptly after the execution of any amendment to this Agreement,
the Trust Administrator shall furnish written notification of the substance of
such amendment to each Certificateholder, and the Rating Agencies.
(d) Prior to the execution of any amendment to this Agreement, each
of the Trustee and the Trust Administrator shall receive and be entitled to
conclusively rely on an Opinion of Counsel (at the expense of the Person
seeking such amendment) stating that the execution of such amendment is
authorized and permitted by this Agreement. The Trustee and the Trust
Administrator may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's or the Trust Administrator's own rights,
duties or immunities under this Agreement.
SECTION 12.02 Recordation of Agreement; Counterparts.
(a) This Agreement (other than Schedule I) is subject to recordation
in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere. Such recordation, if any, shall be effected by
the related Servicer at its expense.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 12.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
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SECTION 12.04 Intention of Parties.
(a) It is the express intent of the Depositor, DLJMC, the Master
Servicer, the Servicers, the Special Servicer, the Trust Administrator and the
Trustee that (i) the conveyance by DLJMC of the Mortgage Loans to the
Depositor pursuant to the Assignment and Assumption Agreement and (ii) the
conveyance by the Depositor to the Trustee as provided for in Section 2.01 of
each of the Seller' and Depositor's right, title and interest in and to the
Mortgage Loans be, and be construed as, an absolute sale and assignment by
DLJMC to the Depositor and by the Depositor to the Trustee of the Mortgage
Loans for the benefit of the Certificateholders. Further, it is not intended
that any conveyance be deemed to be a pledge of the Mortgage Loans by 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, as applicable, or if for any reason the
Assignment and Assumption Agreement or this Agreement is held or deemed to
create a security interest in the Mortgage Loans, then it is intended that (i)
this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (ii) the
conveyances provided for in Section 2.01 shall be deemed to be a grant by the
Seller and the Depositor to the Trustee on behalf of the Certificateholders,
to secure payment in full of the Secured Obligations (as defined below), of a
security interest in all of the Seller' 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
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owed to it under this Agreement and (ii) all other obligations of the Seller
and the Depositor under this Agreement and the Assignment and Assumption
Agreement.
(b) The Seller and the Depositor, and, at the Depositor's direction,
the Master Servicer or the Servicers, the Trustee and the Trust Administrator,
shall, to the extent consistent with this Agreement, take such reasonable
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans and the other property
described above, such security interest would be deemed to be a perfected
security interest of first priority as applicable. The Depositor shall prepare
and file, at the related Servicer's expense, all filings necessary to maintain
the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Mortgage Loans, including without
limitation (i) continuation statements, and (ii) such other statements as may
be occasioned by any transfer of any interest of the Master Servicer or any
Servicer or the Depositor in any Mortgage Loan.
SECTION 12.05 Notices.
In addition to other notices provided under this Agreement, the
Trust Administrator shall notify the Rating Agencies in writing: (a) of any
substitution of any Mortgage Loan; (b) of any payment or draw on any insurance
policy applicable to the Mortgage Loans; (c) of the final payment of any
amounts owing to a Class of Certificates; (d) any Event of Default under this
Agreement; and (e) in the event any Mortgage Loan is repurchased in accordance
with this Agreement.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when received (i) in the case of
the Depositor, Credit Suisse First Boston Mortgage Securities Corp., 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President; (ii) in the
case of the Trustee, the Corporate Trust Office, or such other address as may
hereafter be furnished to the Depositor in writing by the Trustee; (iii) in
the case of DLJMC, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxx (with a copy to DLJ Mortgage Acceptance Corp., 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Office of the
General Counsel), or such other address as may be hereafter furnished to the
Depositor and the Trustee by DLJMC in writing, (iv) in the case of HomeSide,
HomeSide Lending, Inc., 0000 Xxxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx, 00000, or
such other address as may be hereafter furnished in writing to the Depositor
and the Trustee by HomeSide, (v) in the case of Xxxxx'x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx
Xxxxxxxxx; (vi) in the case of Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
(vii) in the case of Vesta, Vesta Servicing, L.P., 0000 Xxxxx Xxxxx Xxxxx,
Xxxxx 000-X, Xxxxxx, Xxxxx, Attention: Xxxx Xxxx; and (viii) in the case of
the Trust Administrator, the Corporate Trust Office. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid.
SECTION 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements,
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provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or of
the Certificates or the rights of the Holders thereof.
SECTION 12.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Certificates
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trust
Administrator a written notice of an Event of Default and of the continuance
thereof, as provided herein, and unless the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates shall
also have made written request upon the Trust Administrator to institute such
action, suit or proceeding in its own name as Trust Administrator hereunder
and shall have offered to the Trust Administrator such reasonable indemnity as
it may require against the costs, expenses, and liabilities to be incurred
therein or thereby, and the Trust Administrator, for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Trust Administrator, that no one or more
Holders of Certificates shall have any right in any manner whatever by virtue
or by availing itself or themselves of any provisions of this Agreement to
affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and 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 Trust
Administrator shall be entitled to such relief as can be given either at law
or in equity.
SECTION 12.08 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due
138
authentication thereof by the Trust Administrator pursuant to this Agreement,
are and shall be deemed fully paid.
SECTION 12.09 Protection of Assets.
Except for transactions and activities entered into in connection
with the securitization that is the subject of this agreement, the trust
created by this agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii) engage in any business or activities.
Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after the Certificates have been paid.
139
IN WITNESS WHEREOF, the Depositor, the Seller, the Master Servicer,
the Servicers, the Special Servicer, the Trustee and the Trust Administrator
have caused their names to be signed hereto by their respective officers
thereunto duly authorized all as of the first day of November, 2001.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
DLJ MORTGAGE CAPITAL, INC.,
as a Seller
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
CHASE MANHATTAN MORTGAGE CORPORATION,
as Master Servicer
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
HOMESIDE LENDING, INC.,
as a Servicer
By: /s/ Xxxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: First Vice President
VESTA SERVICING, L.P.,
as a Servicer and Special Servicer
By: /s/ Xxxx Xxxx
-------------------------------------
Name: Xxxx Xxxx
Title: President
140
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Pablo De La Canal
------------------------------------
Name: Pablo De La Canal
Title: Vice President
JPMORGAN CHASE BANK,
as Trust Administrator
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Assistant Vice President
000
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this 30th day of November, 2001, before me, personally appeared
Xxxx Xxxxxxx, known to me to be a Vice President of Credit Suisse First Boston
Mortgage Securities Corp., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X.
---------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 30th day of November, 2001, before me, personally appeared
Xxxxxx X. Xxxxxxxx, known to me to be a Vice President of DLJ Mortgage
Capital, Inc., one of the corporations that executed the within instrument and
also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X.
---------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF FLORIDA )
: ss.:
COUNTY OF )
On the 30th day of November, 2001, before me, personally appeared
Xxxxxxxxx X. Xxxx, known to me to be a First Vice President of HomeSide
Lending, Inc., one of the corporations that executed the within instrument and
also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx May Xxxxxxxxxx
----------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 29th of November, 2001 before me, a Notary Public in and for
said State, personally appeared Pablo De La Canal known to me to be a Vice
President of First Union National Bank, the national banking association that
executed the within instrument and also known to me to be the person who
executed it on behalf of said national banking association, and acknowledged
to me that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 30th of November, 2001 before me, a Notary Public in and for
said State, personally appeared Xxxx Xxxx known to me to be a President of
Vesta Servicing, L.P., the Delaware limited partnership that executed the
within instrument and also known to me to be the person who executed it on
behalf of said limited partnership, and acknowledged to me that such limited
partnership executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
---------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 30th of November, 2001 before me, a Notary Public in and for
said State, personally appeared Xxxxxx X. Xxxxxx known to me to be a Vice
President of Chase Manhattan Mortgage Corporation, one of the corporations
that executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxx
---------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 30th of November, 2001 before me, a Notary Public in and for
said State, personally appeared Xxxxxxx Xxxx known to me to be a Assistant
Vice President of JPMorgan Chase Bank, the New York banking corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said banking corporation, and acknowledged to me that
such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxx Xxxxxxx
---------------------------------------
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
[FORM OF CLASS A CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
A-1
Certificate No. :
Cut-off Date : 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-AR24
Class [__]-A
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer, the Servicers, the Special
Servicer, the Trust Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), Chase Manhattan Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer"), HomeSide Lending, Inc., as
a servicer (in such capacity, a "Servicer"), Vesta Servicing, L.P., as a
servicer (in such capacity, a "Servicer") and the special servicer (in such
capacity, the "Special Servicer"), First Union National Bank, as trustee (the
"Trustee") and JPMorgan Chase Bank, as trust administrator (the "Trust
Administrator"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
A-3
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: November 30, 2001.
JPMORGAN CHASE BANK,
as Trust Administrator
By ____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
A-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
Class [__]-A
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that neither the Trustee nor the Trust Administrator
is liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
A-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Seller, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans is less than 5% of the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans as of the Cut-off Date, Vesta will have the option to
repurchase, in whole, from the Trust Fund all remaining Group I Mortgage
Loans, Group II Mortgage Loans and Group III Mortgage Loans and all property
acquired in respect of such Mortgage Loans at a purchase price determined as
provided in the Agreement. On any Distribution Date on which the aggregate
Stated Principal Balance of the Group IV Mortgage Loans is less than 5% of the
aggregate Stated Principal Balance of the Group IV Mortgage Loans as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund
A-6
all remaining Group IV Mortgage Loans and all property acquired in respect of
such Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement. Any term used herein that is defined in the Agreement
shall have the meaning assigned in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
A-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
Dated:
_______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________,
for the account of __________________________________________________________,
account number ____________________, or, if mailed by check, to ______________
______________________________________________________________________________
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
A-8
EXHIBIT B
[FORM OF CLASS M CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
B-1
Certificate No. :
Cut-off Date : 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-AR24
Class [__]-M-[__]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer, the Servicers, the Special
Servicer, the Trust Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), Chase Manhattan Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer"), HomeSide Lending, Inc., as
a servicer (in such capacity, a "Servicer"), Vesta Servicing, L.P., as a
servicer (in such capacity, a "Servicer") and the special servicer (in such
capacity, the "Special Servicer"), First Union National Bank, as trustee (the
"Trustee") and JPMorgan Chase Bank, as trust administrator (the "Trust
Administrator"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
B-3
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: November 30, 2001.
JPMORGAN CHASE BANK,
as Trust Administrator
By ____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
B-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
Class [__]-M-[__]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
B-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Seller, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans is less than 5% of the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans as of the Cut-off Date, Vesta will have the option to
repurchase, in whole, from the Trust Fund all remaining Group I Mortgage
Loans, Group II Mortgage Loans and Group III Mortgage Loans and all property
acquired in respect of such Mortgage Loans at a purchase price determined as
provided in the Agreement. On any Distribution Date on which the aggregate
Stated Principal Balance of the Group IV Mortgage Loans is less than 5% of the
aggregate Stated Principal Balance of the Group IV Mortgage Loans as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund
B-6
all remaining Group IV Mortgage Loans and all property acquired in respect of
such Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement. Any term used herein that is defined in the Agreement
shall have the meaning assigned in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
B-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
Dated:
_______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________,
for the account of __________________________________________________________,
account number ____________________, or, if mailed by check, to ______________
______________________________________________________________________________
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
B-8
EXHIBIT C
[FORM OF CLASS C-B CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
FOR CLASSES C-B-4, C-B-5 AND C-B-6 ONLY: [PURSUANT TO SECTION 6.02(f) OF THE
AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR (I) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING
ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR USING THE ASSETS OF THAT PLAN OR
ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II) IF THE PURCHASER IS AN INSURANCE
COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. IN THE EVENT THE
REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT FURNISHED, SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUST ADMINISTRATOR BY
THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY BENEFICIAL OWNER
WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY FORM. IN THE EVENT
THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO TRANSFER THIS CERTIFICATE
TO A PLAN OR PERSON ACTING ON BEHALF OF A PLAN OR USING A PLAN'S ASSETS IS
ATTEMPTED WITHOUT THE DELIVERY TO THE TRUSTEE OF THE OPINION OF COUNSEL
DESCRIBED ABOVE, THE ATTEMPTED TRANSFER OR ACQUISITION OF THIS CERTIFICATE
SHALL BE VOID AND OF NO EFFECT.]
C-1
Certificate No. :
Cut-off Date : 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-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
Class C-B-[__]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of adjustable rate
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________________________________________], is
the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, DLJ Mortgage Capital,
Inc., as seller (in such capacity, the "Seller"), Chase Manhattan Mortgage
Corporation, as master servicer (in such capacity, the "Master Servicer"),
HomeSide Lending, Inc., as a servicer (in such capacity, a "Servicer"), Vesta
Servicing, L.P., as a servicer (in such capacity, a "Servicer") and the
special servicer (in such capacity, the "Special Servicer"), First Union
National Bank, as trustee (the "Trustee") and JPMorgan Chase Bank, as trust
administrator (the "Trust Administrator"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
No transfer of this Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is to
be made in reliance upon an exemption from the Securities Act and such laws,
in order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer and (i) deliver a
letter in substantially the form of either Exhibit L or Exhibit M-1 or Exhibit
M-2 to the Agreement or (ii) there shall be delivered to the Trust
Administrator at the expense of the transferor an Opinion
c-3
of Counsel that such transfer may be made pursuant to an exemption from the
Securities Act. In the event that such a transfer is to be made within three
years from the date of the initial issuance of Certificates pursuant hereto,
there shall also be delivered (except in the case of a transfer pursuant to
Rule 144A of the Securities Act) to the Trustee and the Trust Administrator an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee, the Trust
Administrator and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
[For Classes C-B-4, C-B-5 and C-B-6 only:] [Pursuant to Section 6.02(f)
of the Agreement, no transfer of this Certificate shall be made unless the
Trustee and the Trust Administrator shall have received either (i) a
representation letter from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Trust Administrator, to the
effect that such transferee is not an employee benefit plan subject to Section
406 of ERISA or Section 4975 of the Code, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement
to effect such transfer, which representation letter shall not be an expense
of the Trustee, the Trust Administrator or the Trust Fund, (ii) if the
purchaser is an insurance company and the Certificate has been the subject of
an ERISA-Qualifying Underwriting, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained
in an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificates are covered under Sections I and
III of PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trust Administrator to the
effect that the purchase or holding of such Certificate will not result in the
assets of the Trust Fund being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject
the Depositor, the Trustee, the Trust Administrator, the Master Servicer 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, the Trust Administrator or the Trust Fund. In the event the
representations referred to in the preceding sentence are not furnished, such
representation shall be deemed to have been made to the trustee by the
transferee's acceptance of this certificate, or by any beneficial owner who
purchases an interest in this certificate in book-entry form. In the event
that a representation is violated, or any attempt to transfer this certificate
to a plan or person acting on behalf of a plan or using a plan's assets is
attempted without the delivery to the trustee of the opinion of counsel
described above, the attempted transfer or acquisition of this certificate
shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
C-4
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
C-5
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: November 30, 2001.
JPMORGAN CHASE BANK,
as Trust Administrator
By ___________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
C-6
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
Class C-B-[__]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
C-7
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Seller, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans is less than 5% of the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans as of the Cut-off Date, Vesta will have the option to
repurchase, in whole, from the Trust Fund all remaining Group I Mortgage
Loans, Group II Mortgage Loans and Group III Mortgage Loans and all property
acquired in respect of such Mortgage Loans at a purchase price determined as
provided in the Agreement. On any Distribution Date on which the aggregate
Stated Principal Balance of the Group IV Mortgage Loans is less than 5% of the
aggregate Stated Principal Balance of the Group IV Mortgage Loans as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund
C-8
all remaining Group IV Mortgage Loans and all property acquired in respect of
such Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement. Any term used herein that is defined in the Agreement
shall have the meaning assigned in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
C-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 Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
Dated:
_______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________,
for the account of __________________________________________________________,
account number ____________________, or, if mailed by check, to ______________
______________________________________________________________________________
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
C-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 TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING
ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR USING THE ASSETS OF THAT PLAN OR
ARRANGEMENT TO EFFECT THAT TRANSFER, OR (B) IF THE TRANSFEREE IS AN INSURANCE
COMPANY, A REPRESENTATION THAT THE TRANSFEREE IS AN INSURANCE COMPANY WHICH IS
PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY
GENERAL ACCOUNT," AS THAT TERM IS DEFINED IN SECTION V(e) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60, OR PTCE 95-60, AND THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60, OR (C) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUST ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
C-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 :
C-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
Class AR
evidencing a percentage interest in the distributions allocable to the
Class AR Certificates with respect to a Trust Fund consisting primarily
of a pool of adjustable rate conventional mortgage loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer, the Servicers, the Special
Servicer, the Trustee or the Trust Administrator referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that Credit Suisse First Boston Corporation, is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, DLJ Mortgage Capital,
Inc., as seller (in such capacity, the "Seller"), Chase Manhattan Mortgage
Corporation, as master servicer (in such capacity, the "Master Servicer"),
HomeSide Lending, Inc., as a servicer (in such capacity, a "Servicer"), Vesta
Servicing, L.P., as a servicer (in such capacity, a "Servicer") and the
special servicer (in such capacity, the "Special Servicer"), First Union
National Bank, as trustee (the "Trustee") and JPMorgan Chase Bank, as trust
administrator (the "Trust Administrator"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class AR
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trust Administrator in New York, New York.
No transfer of a Class AR Certificate shall be made unless the Trust
Administrator shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such transferee is
not an employee benefit plan subject to Section 406 of ERISA or Section 4975
of the Code, or a person acting on behalf of any such plan or arrangement or
using the assets of any
C-3
such plan or arrangement to effect such transfer, which representation letter
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund or (ii) if the transferee is an insurance company, a representation that
the transferee is an insurance company which is purchasing this certificate
with funds contained in an "insurance company general account," as that term
is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60, or
PTCE 95-60, and that the purchase and holding of this certificate are covered
under Sections I and II of PTCE 95-60, or (iii) in the case of any such Class
AR Certificate presented for registration in the name of an employee benefit
plan subject to ERISA, or Section 4975 of the Code (or comparable provisions
of any subsequent enactments), or a trustee of any such plan or any other
person acting on behalf of any such plan or arrangement, or using such plan's
or arrangement's assets, an Opinion of Counsel satisfactory to the Trust
Administrator to the effect that the purchase or holding of such Class AR
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA
and the Code and will not subject the Depositor, the Trustee, the Trust
Administrator, the Master Servicer 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, the Trust
Administrator or the Trust Fund. Notwithstanding anything else to the contrary
herein, any purported transfer of a Class AR Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the Opinion of
Counsel satisfactory to the Trust Administrator as described above shall be
void and of no effect.
Each Holder of this Class AR Certificate will be deemed to have agreed to
be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class AR Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class AR Certificate may be transferred without
delivery to the Trust Administrator of a transfer affidavit of the initial
owner or the proposed transferee in the form described in the Agreement, (iii)
each person holding or acquiring any Ownership Interest in this Class AR
Certificate must agree to require a transfer affidavit from any other person
to whom such person attempts to Transfer its Ownership Interest in this Class
AR Certificate as required pursuant to the Agreement, (iv) each person holding
or acquiring an Ownership Interest in this Class AR Certificate must agree not
to transfer an Ownership Interest in this Class AR Certificate if it has
actual knowledge that the proposed transferee is not a Permitted Transferee
and (v) any attempted or purported transfer of any Ownership Interest in this
Class AR Certificate in violation of such restrictions will be absolutely null
and void and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
C-4
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: November 30, 2001.
JPMORGAN CHASE BANK,
as Trust Administrator
By ____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
C-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
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-AR24, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Seller, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans is less than 5% of the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans as of the Cut-off Date, Vesta will have the option to
repurchase, in whole, from the Trust Fund all remaining Group I Mortgage
Loans, Group II Mortgage Loans and Group III Mortgage Loans and all property
acquired in respect of such Mortgage Loans at a purchase price determined as
provided in the Agreement. On any Distribution Date on which the aggregate
Stated Principal Balance of the Group IV Mortgage Loans is less than 5% of the
aggregate Stated Principal Balance of the Group IV Mortgage Loans as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund
C-7
all remaining Group IV Mortgage Loans and all property acquired in respect of
such Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement. Any term used herein that is defined in the Agreement
shall have the meaning assigned in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
C-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
Dated:
_______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________,
for the account of __________________________________________________________,
account number ____________________, or, if mailed by check, to ______________
______________________________________________________________________________
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
C-9
EXHIBIT E
[FORM OF CLASS III-X CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No. : 1
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 :
D-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
Class III-X
evidencing a 100% Percentage Interest in the distributions allocable
to the Class III-X Certificates with respect to a Trust Fund
consisting primarily of a pool of adjustable rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO, is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as seller (in
such capacity, the "Seller"), Chase Manhattan Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer"), HomeSide Lending, Inc., as
a servicer (in such capacity, a "Servicer"), Vesta Servicing, L.P., as a
servicer (in such capacity, a "Servicer") and the special servicer (in such
capacity, the "Special Servicer"), First Union National Bank, as trustee (the
"Trustee") and JPMorgan Chase Bank, as trust administrator (the "Trust
Administrator"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
D-3
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: November 30, 2001.
JPMORGAN CHASE BANK,
as Trust Administrator
By ____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
D-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
Class III-X
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
D-5
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Seller, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans is less than 5% of the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans as of the Cut-off Date, Vesta will have the option to
repurchase, in whole, from the Trust Fund all remaining Group I Mortgage
Loans, Group II Mortgage Loans and Group III Mortgage Loans and all property
acquired in respect of such Mortgage Loans at a purchase price determined as
provided in the Agreement. On any Distribution Date on which the aggregate
Stated Principal Balance of the Group IV Mortgage Loans is less than 5% of the
aggregate Stated Principal Balance of the Group IV Mortgage Loans as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund
D-6
all remaining Group IV Mortgage Loans and all property acquired in respect of
such Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement. Any term used herein that is defined in the Agreement
shall have the meaning assigned in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
D-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
Dated:
_______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________,
for the account of __________________________________________________________,
account number ____________________, or, if mailed by check, to ______________
______________________________________________________________________________
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
D-8
EXHIBIT F
[FORM OF CLASS IV-X CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
PURSUANT TO SECTION 6.02(f) OF THE AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUST
ADMINISTRATOR (I) A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE
IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975
OF THE CODE NOR A PERSON ACTING ON BEHALF OF THAT PLAN OR ARRANGEMENT NOR
USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT THAT TRANSFER, OR (II)
IF THE PURCHASER IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE
SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR (III) AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
IN THE EVENT THE REPRESENTATIONS REFERRED TO IN THE PRECEDING SENTENCE ARE NOT
FURNISHED, SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUST
ADMINISTRATOR BY THE TRANSFEREE'S ACCEPTANCE OF THIS CERTIFICATE, OR BY ANY
BENEFICIAL OWNER WHO PURCHASES AN INTEREST IN THIS CERTIFICATE IN BOOK-ENTRY
FORM. IN THE EVENT THAT A REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO
TRANSFER THIS CERTIFICATE TO A PLAN OR PERSON ACTING ON BEHALF OF A PLAN OR
USING A PLAN'S ASSETS IS ATTEMPTED WITHOUT THE DELIVERY TO THE TRUSTEE OF THE
OPINION OF COUNSEL DESCRIBED ABOVE, THE ATTEMPTED TRANSFER OR ACQUISITION OF
THIS CERTIFICATE SHALL BE VOID AND OF NO EFFECT.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
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-Backed Pass-Through Certificates, Series 2001-AR24
Class IV-X
evidencing a 100% Percentage Interest in the distributions allocable
to the Class IV-X Certificates with respect to a Trust Fund
consisting primarily of a pool of adjustable rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer, the
Servicers, the Special Servicer, the Trustee or the Trust Administrator
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________________________________________],
is the registered owner of the Percentage Interest evidenced by this
Certificate (obtained by dividing the denomination of this Certificate by the
aggregate of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, DLJ Mortgage
Capital, Inc., as seller (in such capacity, the "Seller"), Chase Manhattan
Mortgage Corporation, as master servicer (in such capacity, the "Master
Servicer"), HomeSide Lending, Inc., as a servicer (in such capacity, a
"Servicer"), Vesta Servicing, L.P., as a servicer (in such capacity, a
"Servicer") and the special servicer (in such capacity, the "Special
Servicer"), First Union National Bank, as trustee (the "Trustee") and JPMorgan
Chase Bank, as trust administrator (the "Trust Administrator"). To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
No transfer of this Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is to
be made in reliance upon an exemption from the Securities Act and such laws,
in order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer and (i) deliver a
letter in substantially the form of either Exhibit L or Exhibit M-1 or Exhibit
M-2 to the Agreement or (ii) there shall be delivered to the Trust
Administrator at the expense of the transferor an Opinion
E-3
of Counsel that such transfer may be made pursuant to an exemption from the
Securities Act. In the event that such a transfer is to be made within three
years from the date of the initial issuance of Certificates pursuant hereto,
there shall also be delivered (except in the case of a transfer pursuant to
Rule 144A of the Securities Act) to the Trustee and the Trust Administrator an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee, the Trust
Administrator and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Pursuant to Section 6.02(f) of the Agreement, no transfer of this
Certificate shall be made unless the Trustee and the Trust Administrator shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the Trust
Administrator, to the effect that such transferee is not an employee benefit
plan subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such transfer, which representation letter
shall not be an expense of the Trustee, the Trust Administrator or the Trust
Fund, (ii) if the purchaser is an insurance company and the Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation that
the purchaser is an insurance company which is purchasing such Certificates
with funds contained in an "insurance company general account" (as such term
is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60 or (iii) in the case of any
such Certificate presented for registration in the name of an employee benefit
plan subject to ERISA, or Section 4975 of the Code (or comparable provisions
of any subsequent enactments), or a trustee of any such plan or any other
person acting on behalf of any such plan or arrangement, or using such plan's
or arrangement's assets, an Opinion of Counsel satisfactory to the Trust
Administrator to the effect that the purchase or holding of such Certificate
will not result in the assets of the Trust Fund being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Depositor, the Trustee, the Trust Administrator,
the Master Servicer 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, the Trust Administrator or the Trust
Fund. In the event the representations referred to in the preceding sentence
are not furnished, such representation shall be deemed to have been made to
the trustee by the transferee's acceptance of this certificate, or by any
beneficial owner who purchases an interest in this certificate in book-entry
form. In the event that a representation is violated, or any attempt to
transfer this certificate to a plan or person acting on behalf of a plan or
using a plan's assets is attempted without the delivery to the trustee of the
opinion of counsel described above, the attempted transfer or acquisition of
this certificate shall be void and of no effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
E-4
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trust Administrator.
E-5
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly executed.
Dated: November 30, 2001.
JPMORGAN CHASE BANK,
as Trust Administrator
By ____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trust Administrator
E-6
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24
Class IV-X
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-AR24, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that neither the Trustee nor the Trust Administrator is
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject to
any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the Trust Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee, the Trust Administrator and the
E-7
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Servicers, the Special Servicer, the
Seller, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trust Administrator in New York, New York, accompanied by a
written instrument of transfer in form satisfactory to the Trust Administrator
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trust Administrator may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, the Master Servicer, each Seller, the
Trustee and the Trust Administrator and any agent of the Depositor, each
Servicer, the Master Servicer, each Seller, the Trustee or the Trust
Administrator may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor,
the Servicers, the Master Servicer, the Seller, the Trustee, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans is less than 5% of the aggregate Stated Principal Balance of
the Group I Mortgage Loans, the Group II Mortgage Loans and the Group III
Mortgage Loans as of the Cut-off Date, Vesta will have the option to
repurchase, in whole, from the Trust Fund all remaining Group I Mortgage
Loans, Group II Mortgage Loans and Group III Mortgage Loans and all property
acquired in respect of such Mortgage Loans at a purchase price determined as
provided in the Agreement. On any Distribution Date on which the aggregate
Stated Principal Balance of the Group IV Mortgage Loans is less than 5% of the
aggregate Stated Principal Balance of the Group IV Mortgage Loans as of the
Cut-off Date, Vesta will have the option to repurchase, in whole, from the
Trust Fund
E-8
all remaining Group IV Mortgage Loans and all property acquired in respect of
such Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement. Any term used herein that is defined in the Agreement
shall have the meaning assigned in the Agreement, and nothing herein shall be
deemed inconsistent with that meaning.
E-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 Trust Administrator to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
Dated:
_______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________,
for the account of __________________________________________________________,
account number ____________________, or, if mailed by check, to ______________
______________________________________________________________________________
______________________________________________________________________________
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
E-10
EXHIBIT G
FORM OF SERVICER INFORMATION
The following information will be e-mailed to Trust Administrator in
accordance with Section 4.05:
Servicer Loan Number
Trust Loan Number (if applicable)
Scheduled Net Interest
Scheduled Principal
Curtailment Applied
Curtailment Adjustment
Mortgage Rate
Servicing Fee Rate
P&I Payment
Beginning Scheduled Balance
Ending Scheduled Balance
Ending Actual Principal Balance
Due Date
Prepayment in full Principal
Prepayment in full Net Interest
Prepayment in full Penalty
Delinquencies:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
Loss Amounts & Loss Types (i.e., Bankruptcy, Excess, Extraordinary, Deficient
Valuation, Debt Reduction)
Xxxxxxx Xxxxxx
First Security Investor Reporting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Phone No. 000-000-0000
Fax No. 000-000-0000
kknight@fsir. com
[name]
JPMorgan Chase Bank
[address]
Phone No. [________]
Fax No. [________]
[email]
G-1
EXHIBIT H
[RESERVED]
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.
FIRST UNION NATIONAL BANK,
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.
FIRST UNION NATIONAL BANK,
as Trustee
By:
----------------------------------
Authorized Representative
J-2
EXHIBIT K
FORM OF REQUEST FOR RELEASE
[date]
To: First Union National Bank
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of November
1, 2001, among the Depositor, DLJ Mortgage Capital, Inc., as seller (in such
capacity, the "Seller"), Chase Manhattan Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer"), HomeSide Lending, Inc., as
a servicer (in such capacity, a "Servicer"), Vesta Servicing, L.P., as a
servicer (in such capacity, a "Servicer") and the special servicer (in such
capacity, the "Special Servicer"), First Union National Bank, as trustee (the
"Trustee") and JPMorgan Chase Bank, as trust administrator (the "Trust
Administrator") (the "Pooling and Servicing Agreement"), the undersigned
hereby requests a release of the Mortgage File held by you as Trustee with
respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be credited
to the Certificate Account pursuant to the Pooling and Servicing
Agreement.)
____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price has been
credited to the Certificate Account pursuant to the Pooling and
Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned, except if the Mortgage Loan has been
paid in full or repurchased (in which case the Mortgage File will be retained
by us permanently) when no longer required by us for such purpose.
K-1
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
[NAME OF SERVICER]
By: ___________________________________
Name:
Title:
K-2
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class AR Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
__________________________________
Print Name of Transferor
By: ______________________________
Authorized Officer
L-1
EXHIBIT M-1
FORM OF INVESTMENT LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) if we are an insurance company,
we are purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and 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
[Trust Administrator]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition, or (ii) if an insurance company, we
are purchasing the Certificates with funds contained in an "insurance company
general account" (as defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and our purchase and holding of the
Certificates are covered under Sections I and III of PTCE 95-60, (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold
or otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or require registration
pursuant thereto, nor will act, nor has authorized or will authorize any
person to act, in such manner with respect to the Certificates, (f) we are a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Act ("Rule 144A") and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2, (g) we are aware that the
sale to us is being made in reliance on Rule 144A, and (i) we are acquiring
the Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or
transferred only (A) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for
M-2-1
the account of a qualified institutional buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A, or (B)
pursuant to another exemption from registration under the Act.
Very truly yours,
_______________________________________
Print Name of 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
(the "Pooling and Servicing Agreement"), dated as of November 1, 2001, among
the Depositor, DLJ Mortgage Capital, Inc., as seller (in such capacity, the
"Seller"), Chase Manhattan Mortgage Corporation, as master servicer (in such
capacity, the "Master Servicer"), HomeSide Lending, Inc., as a servicer (in
such capacity, a "Servicer"), Vesta Servicing, L.P., as a servicer (in such
capacity, a "Servicer") and the special servicer (in such capacity, the
"Special Servicer"), First Union National Bank, as trustee (the "Trustee") and
JPMorgan Chase Bank, as trust administrator (the "Trust Administrator"). All
terms used herein and not otherwise defined shall have the meanings set forth
in the Pooling and Servicing Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Depositor and the Trustee
that:
1. No purpose of the Seller relating to sale of the Certificate by
the Seller to the Purchaser is or will be to enable the Seller to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee a transfer affidavit and agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit N. The Seller does not know or believe that
any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee
is not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificate.
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has
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historically paid its debts as they came due, and found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificate constitutes a noneconomic residual interest, it (i) understands
that as holder of a noneconomic residual interest it may incur tax liabilities
in excess of any cash flows generated by the interest, and (ii) intends to pay
taxes associated with its holding of the Certificate as they become due.
Very truly yours,
[SELLER]
By:______________________________________
Name:
Title:
X-0
XXXXXXX X-0
FORM OF ESCROW ACCOUNT CERTIFICATE
[On file]
P1-
EXHIBIT P-2
FORM OF ESCROW ACCOUNT LETTER
[On file]
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EXHIBIT Q-1
FORM OF COLLECTION ACCOUNT CERTIFICATE
[On file]
P-1
EXHIBIT Q-2
FORM OF COLLECTION ACCOUNT LETTER
[On file]
Q-1
EXHIBIT R
FORM OF TGIC POLICY
[On file]
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SCHEDULE I
Mortgage Loan Schedule
(Provided Upon Request)
Q-1
SCHEDULE IIA
Representations and Warranties of Seller - DLJ Mortgage Capital, Inc.
DLJMC, in its capacity as Seller, hereby makes the representations
and warranties set forth in this Schedule IIA to the Depositor, the Trustee
and the Trust Administrator, as of the Closing Date, or if so specified
herein, as of the Cut-off Date or such other date as may be specified.
Capitalized terms used but not defined herein shall have the meanings assigned
thereto in the Pooling and Servicing Agreement dated as of November 1, 2001
(the "Agreement") among Credit Suisse First Boston Mortgage Securities Corp.,
as the depositor, DLJ Mortgage Capital, Inc., as seller, Chase Manhattan
Mortgage Corporation, as master servicer, HomeSide Lending, Inc., as a
servicer, Vesta Servicing, L.P., as a servicer and special servicer, JPMorgan
Chase Bank, as trust administrator and First Union National Bank, as trustee.
(i) the Seller is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation;
(ii) the Seller has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and
perform its obligations under this Agreement;
(iii) the execution and delivery by the Seller of this Agreement
have been duly authorized by all necessary corporate action on the part
of the Seller; and neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated hereby, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Seller or its properties or the certificate of incorporation or
by-laws of the Seller, except those conflicts, breaches or defaults which
would not reasonably be expected to have a material adverse effect on the
Seller's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(iv) the execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made and, in connection with the
recordation of the Mortgages, powers of attorney or assignments of
Mortgages not yet completed;
(v) this Agreement has been duly executed and delivered by the
Seller and, assuming due authorization, execution and delivery by the
Trustee, the Trust Administrator, the Master Servicer, the Servicers, the
Special Servicer and the Depositor, constitutes a valid and binding
obligation of the Seller enforceable against it in accordance with its
terms (subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally); and
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(vi) to the knowledge of the Seller, there are no actions,
litigation, suits or proceedings pending or threatened against the Seller
before or by any court, administrative agency, arbitrator or governmental
body (i) with respect to any of the transactions contemplated by this
Agreement or (ii) with respect to any other matter which in the judgment
of the Seller if determined adversely to the Seller would reasonably be
expected to materially and adversely affect the Seller's ability to
perform its obligations under this Agreement; and the Seller is not in
default with respect to any order of any court, administrative agency,
arbitrator or governmental body so as to materially and adversely affect
the transactions contemplated by this Agreement.
(vii) to the knowledge of the Seller, (i) no mortgage loan in the
mortgage pool or in any of the loan groups contemplated under the terms
of this Agreement was subject to the Home Ownership and Equity Protection
Act of 1994 or any comparable state law, (ii) no proceeds from any
mortgage loan in the mortgage pool or in any of the loan groups
contemplated under the terms of this Agreement were used to finance
single-premium credit insurance policies, (iii) the Servicers for each
mortgage loan in the mortgage pool or in any of the loan groups
contemplated under the terms of this Agreement will accurately and fully
report its borrower credit files to all three credit repositories in a
timely manner, and (iv) no mortgage loan in the mortgage pool or in any
of the loan groups contemplated under the terms of this Agreement will
impose a prepayment premium for a term in excess of five years.
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SCHEDULE IIB
Representations and Warranties of Master Servicer - Chase Manhattan
Mortgage Corporation
CMMC, in its capacity as Master Servicer, hereby makes the
representations and warranties set forth in this Schedule IIB to the
Depositor, the Trustee and the Trust Administrator and the Master Servicer, as
of the Closing Date, or if so specified herein, as of the Cut-off Date or such
other date as may be specified. Capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement dated as of November 1, 2001 (the "Agreement") among Credit Suisse
First Boston Mortgage Securities Corp., as the depositor, DLJ Mortgage
Capital, Inc., as seller, Chase Manhattan Mortgage Corporation, as master
servicer, HomeSide Lending, Inc., as a servicer, Vesta Servicing, L.P., as a
servicer and special servicer, JPMorgan Chase Bank, as trust administrator and
First Union National Bank, as trustee.
(viii) CMMC is a limited corporation duly formed, validly existing
and in good standing and is qualified under the laws of each state where
required by applicable law or is otherwise exempt under applicable law
from such qualification.
(ix) CMMC has all requisite corporate power, authority and capacity
to enter into the Agreement and to perform the obligations required of it
thereunder. The Agreement (assuming the due authorization and execution
of the Agreement by the other parties thereto) constitutes a valid and
legally binding agreement of CMMC enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors.
(x) None of the execution and delivery of the Agreement, the
consummation of any other transaction contemplated therein, or the
fulfillment of or compliance with the terms of the Agreement, will result
in the breach of, or constitute a default under, any term or provision of
the organizational documents of CMMC or conflict with, result in a
material breach, violation or acceleration of or constitute a material
default under, the terms of any indenture or other agreement or
instrument to which CMMC is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to CMMC of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over CMMC.
(xi) There is no action, suit, proceeding or investigation pending,
or to CMMC's knowledge threatened, against CMMC before any court,
administrative agency or other tribunal (a) asserting the invalidity of
the Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated thereby or (c) which might materially and
adversely affect the performance by CMMC of its obligations under, or the
validity or enforceability of, the Agreement.
(xii) 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
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execution, delivery and performance by CMMC of the Agreement or the
consummation of the transactions contemplated by the Agreement.
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SCHEDULE IIC
Representations and Warranties of Servicer - HomeSide Lending, Inc.
HomeSide, in its capacity as Servicer, hereby makes the
representations and warranties set forth in this Schedule IIC to the
Depositor, the Trustee, the Trust Administrator and the Master Servicer, as of
the Closing Date, or if so specified herein, as of the Cut-off Date or such
other date as may be specified. Capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement dated as of November 1, 2001 (the "Agreement") among Credit Suisse
First Boston Mortgage Securities Corp., as the depositor, DLJ Mortgage
Capital, Inc., as seller, Chase Manhattan Mortgage Corporation, as master
servicer, HomeSide Lending, Inc., as a servicer, Vesta Servicing, L.P., as a
servicer and special servicer, JPMorgan Chase Bank, as trust administrator and
First Union National Bank, as trustee.
(i) HomeSide is a corporation duly formed, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and
is qualified under the laws of each state where required by applicable
law or is otherwise exempt under applicable law from such qualification.
(ii) HomeSide 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 HomeSide 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 HomeSide 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 HomeSide is a party or by which it is bound, or any
statute, order, judgment, or regulation applicable to HomeSide of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over HomeSide.
(iv) There is no action, suit, proceeding or investigation pending,
or to HomeSide's knowledge threatened, against HomeSide 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 HomeSide of its obligations under, or
the validity or enforceability of, the Agreement.
(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the
Q-1
execution, delivery and performance by HomeSide of the Agreement or the
consummation of the transactions contemplated by the Agreement.
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SCHEDULE IID
Representations and Warranties of Servicer and Special Servicer-
Vesta Servicing, L.P.
Vesta, in its capacities as Servicer and Special Servicer, hereby
makes the representations and warranties set forth in this Schedule IID to the
Depositor, the Trustee, the Trust Administrator and the Master Servicer, as of
the Closing Date, or if so specified herein, as of the Cut-off Date or such
other date as may be specified. Capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement dated as of November 1, 2001 (the "Agreement") among Credit Suisse
First Boston Mortgage Securities Corp., as the depositor, DLJ Mortgage
Capital, Inc., as seller, Chase Manhattan Mortgage Corporation, as master
servicer, HomeSide Lending, Inc., as a servicer, Vesta Servicing, L.P., as a
servicer and special servicer, JPMorgan Chase Bank, as trust administrator and
First Union National Bank, as trustee.
(i) Vesta Servicing, L.P. ("Vesta") is a limited partnership duly
organized, validly existing and in good standing under the laws of the
state of its formation;
(ii) Vesta has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by Vesta of this Agreement have
been duly authorized by all necessary corporate action on the part of
Vesta; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated hereby, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
Vesta or its properties or the certificate of incorporation or bylaws of
Vesta, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on Vesta's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) this Agreement has been duly executed and delivered by Vesta
and, assuming due authorization, execution and delivery by the Trustee,
the Seller and the Depositor, constitutes a valid and binding obligation
of Vesta enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally); and
(v) to the knowledge of Vesta, there are no actions, litigation,
suits or proceedings pending or threatened against Vesta before or by any
court, administrative agency, arbitrator or governmental body (a) with
respect to any of the transactions contemplated by this Agreement or (b)
with respect to any other matter which in the judgment of Vesta if
determined adversely to Vesta would reasonably be expected to materially
and adversely affect Vesta's ability to perform its obligations under
this Agreement, other than as Vesta has previously advised Seller; and
Vesta is not in default
Q-2
with respect to any order of any court, administrative agency, arbitrator
or governmental body so as to materially and adversely affect the
transactions contemplated by this Agreement.
Q-2
SCHEDULE III
Representations and Warranties of DLJMC - Mortgage Loans
DLJMC, in its capacity as Seller, hereby makes the representations
and warranties set forth in this Schedule III to the Depositor, the Trustee
and the Trust Administrator, as of the Closing Date, or if so specified
herein, as of the Cut-off Date or such other date as may be specified, with
respect to the Mortgage Loans identified on Schedule I hereto. Capitalized
terms used but not defined herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement dated as of November 1, 2001 (the
"Agreement") among Credit Suisse First Boston Mortgage Securities Corp., as
the depositor, DLJ Mortgage Capital, Inc., as seller, Chase Manhattan Mortgage
Corporation, as master servicer, HomeSide Lending, Inc., as a servicer, Vesta
Servicing, L.P., as a servicer and special servicer, JPMorgan Chase Bank, as
trust administrator and First Union National Bank, as trustee.
(i) The Seller or its affiliate is the sole owner of record and
holder of the Mortgage Loan and the indebtedness evidenced by the
Mortgage Note. Immediately prior to the transfer and assignment to the
Depositor on the Closing Date or the Subsequent Transfer Date, as
applicable, the Mortgage Loan, including the Mortgage Note and the
Mortgage, were not subject to an assignment or pledge, and the Seller had
good and marketable title to and was the sole owner thereof and had full
right to transfer and sell the Mortgage Loan to the Depositor 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 and following the sale of the Mortgage Loan, the
Depositor will own such Mortgage Loan free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest.
(ii) 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) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation
is required by law, or, necessary to protect the interest of the
Depositor. No instrument of waiver, alteration or modification has been
executed, and no Mortgagor has been released, in whole or in part, from
the terms thereof except in connection with an assumption agreement and
which assumption agreement is part of the Mortgage File and the terms of
which are reflected in the Mortgage Loan Schedule; the substance of any
such waiver, alteration or modification has been approved by the issuer
of any related Primary Insurance Policy and title insurance policy, to
the extent required by the related policies.
(iv) The Mortgage Loan complies with all the terms, conditions and
requirements of the originator's underwriting standards in effect at the
time of origination of such Mortgage Loan.
Q-1
(v) The information set forth in the Mortgage Loan Schedule,
attached to the Agreement as Schedule I, is complete, true and correct in
all material respects as of the Cut-off Date.
(vi) The related Mortgage is a valid, subsisting, enforceable and
perfected first lien on the Mortgaged Property and, 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 anytime with
respect to the foregoing securing the Mortgage Note's original principal
balance. The Mortgage and the Mortgage Note do not contain any evidence
of any security interest or other interest or right thereto. Such lien is
free and clear of all adverse claims, liens and encumbrances having
priority over the first lien, as applicable, of the Mortgage subject only
to (1) the lien of non-delinquent current real property taxes and
assessments not yet due and payable, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to or
otherwise considered in the appraisal made for the originator of the
Mortgage Loan, or (B) which do not adversely affect the appraised value
of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of
the related Mortgaged Property. Any security agreement, chattel mortgage
or equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, subsisting, enforceable
and perfected first lien and first priority security interest on the
property described therein, and the Seller has the full right to sell and
assign the same to the Depositor.
(vii) 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.
(viii) 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.
(ix) 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.
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(x) 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.
(xi) All improvements subject to the Mortgage which were considered
in determining the appraised value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of the Mortgaged
Property (and wholly within the project with respect to a condominium
unit) and no improvements on adjoining properties encroach upon the
Mortgaged Property except those which are insured against by a title
insurance policy and all improvements on the property comply with all
applicable zoning and subdivision laws and ordinances.
(xii) Seller has delivered or caused to be delivered to the Trustee
or the Custodian on behalf of the Trustee the original Mortgage bearing
evidence that such instruments have been recorded in the appropriate
jurisdiction where the Mortgaged Property is located as determined by the
Seller (or, in lieu of the original of the Mortgage or the assignment
thereof, a duplicate or conformed copy of the Mortgage or the instrument
of assignment, if any, together with a certificate of receipt from the
Seller or the settlement agent who handled the closing of the Mortgage
Loan, certifying that such copy or copies represent true and correct
copy(ies) of the originals) and that such original(s) have been or are
currently submitted to be recorded in the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is
located) or a certification or receipt of the recording authority
evidencing the same.
(xiii) The Mortgage File contains each of the documents specified
in Section 2.01(b) of the Agreement.
(xiv) As of the Closing Date, each Mortgage Loan shall be serviced
in all material respects in accordance with the terms of the Agreement.
(xv) 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 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 at the
time of origination, the Mortgage Loan was required to have flood
insurance coverage in accordance with the Flood Disaster Protection Act
of 1973, as amended, such 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 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 upon
the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to
Q-4
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor.
(xvi) With respect to a Mortgage 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.
(xvii) As of the Cut-off Date, no Mortgage Loan is (a) a
non-performing loan (i.e., a mortgage loan that is more than 90 days
delinquent); (b) a re-performing loan (i.e. a mortgage loan that was more
than 90 days delinquent within the twelve-month period preceding the
Cut-off Date but is contractually current); or (c) a sub-performing loan
(i.e. a mortgage loan that is at least 30 days delinquent but subject to
a payment plan or agreement pursuant to which the Mortgagor is
contractually current).
(xviii) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities and Exchange Act of 1934, as amended)
by an entity that satisfied at the time of origination the requirements
of Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
(xix) 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.
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