CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
DLJ MORTGAGE CAPITAL, INC.,
Seller
WILSHIRE CREDIT CORPORATION,
Servicer
OCWEN FEDERAL BANK FSB,
Servicer
and
JPMORGAN CHASE BANK,
Trustee
--------------------------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2002
--------------------------------------------------------------------------------
CSFB TRUST SERIES 2002-S12
CSFB MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-S12
Table of Contents
Page
ARTICLE I
DEFINITIONS..............................................................5
SECTION 1.01..........................................................5
SECTION 1.02 Interest Calculations...................................43
SECTION 1.03 Allocation of Certain Interest Shortfalls...............44
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES..........................................45
SECTION 2.01 Conveyance of Mortgage Loans..........................45
SECTION 2.02 Acceptance by the Trustee.............................51
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 Execution and Delivery of Certificates................57
SECTION 2.07 REMIC Matters.........................................57
SECTION 2.08 Covenants of each Servicer............................57
SECTION 2.09 Conveyance of REMIC Regular Interests and
Acceptance of REMIC 1 by the Trustee; Issuance of
Certificates..........................................57
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS.......................................................59
SECTION 3.01 Servicers to Service Mortgage Loans...................59
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers..........................................61
SECTION 3.03 [Reserved]............................................62
SECTION 3.04 Trustee to Act as Servicer............................62
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account; Pre-Funding Accounts;
Capitalized Interest Account..........................63
SECTION 3.06 Establishment of and Deposits to Escrow Accounts;
Permitted Withdrawals from Escrow Accounts;
Payments of Taxes, Insurance and Other Charges........66
i
SECTION 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans; Inspections.............68
SECTION 3.08 Permitted Withdrawals from the Collection Accounts
and Certificate Account...............................68
SECTION 3.09 Maintenance of Hazard Insurance and Mortgage
Impairment Insurance; Claims; Restoration of
Mortgaged Property....................................70
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements............................................71
SECTION 3.11 Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans..................72
SECTION 3.12 Trustee to Cooperate; Release of Mortgage
Files.................................................78
SECTION 3.13 Documents, Records and Funds in Possession of a
Servicer to be Held for the Trustee...................79
SECTION 3.14 Servicing Fee.........................................80
SECTION 3.15 Access to Certain Documentation.......................80
SECTION 3.16 Annual Statement as to Compliance.....................80
SECTION 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.......................81
SECTION 3.18 Maintenance of Fidelity Bond and Errors and
Omissions Insurance...................................81
SECTION 3.19 Duties of the Credit Risk Manager.....................82
SECTION 3.20 Limitation Upon Liability of the Credit
Risk Manager..........................................82
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICERS...............................................83
SECTION 4.01 Advances by the Servicers.............................83
SECTION 4.02 Priorities of Distribution............................84
SECTION 4.03 [Reserved]............................................88
SECTION 4.04 [Reserved]............................................88
SECTION 4.05 Allocation of Realized Losses.........................88
SECTION 4.06 Monthly Statements to Certificateholders..............89
SECTION 4.07 Distributions on the REMIC 1 Regular
Interests.............................................91
SECTION 4.08 Reserve Fund..........................................92
SECTION 4.09 Prepayment Penalties..................................93
SECTION 4.10 Policy Matters........................................94
ii
ARTICLE V
THE CERTIFICATES........................................................98
SECTION 5.01 The Certificates......................................98
SECTION 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates..............................99
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates....103
SECTION 5.04 Persons Deemed Owners................................103
SECTION 5.05 Access to List of Certificateholders' Names and
Addresses............................................103
SECTION 5.06 Maintenance of Office or Agency......................104
ARTICLE VI
THE DEPOSITOR, THE SELLER AND THE SERVICERS............................105
SECTION 6.01 Respective Liabilities of the Depositor, the
Sellers and the Servicers............................105
SECTION 6.02 Merger or Consolidation of the Depositor, the
Seller or a Servicer.................................105
SECTION 6.03 Limitation on Liability of the Depositor, the
Seller, the Servicers and Others.....................105
SECTION 6.04 Limitation on Resignation of a Servicer..............106
ARTICLE VII
DEFAULT................................................................107
SECTION 7.01 Events of Default....................................107
SECTION 7.02 Trustee to Act; Appointment of Successor.............108
SECTION 7.03 Notification to Certificateholders...................110
ARTICLE VIII
CONCERNING THE TRUSTEE.................................................111
SECTION 8.01 Duties of the Trustee................................111
SECTION 8.02 Certain Matters Affecting the Trustee................112
SECTION 8.03 Trustee Not Liable for Certificates or Mortgage
Loans................................................113
SECTION 8.04 Trustee May Own Certificates.........................113
SECTION 8.05 Trustee's Fees and Expenses..........................113
SECTION 8.06 Eligibility Requirements for the Trustee and
Custodian............................................114
SECTION 8.07 Resignation and Removal of the Trustee...............114
SECTION 8.08 Successor Trustee....................................115
SECTION 8.09 Merger or Consolidation of the Trustee...............115
iii
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee........116
SECTION 8.11 Tax Matters..........................................117
SECTION 8.12 Periodic Filings.....................................119
ARTICLE IX
TERMINATION............................................................120
SECTION 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans.......................................120
SECTION 9.02 Final Distribution on the Certificates...............120
SECTION 9.03 Additional Termination Requirements..................121
ARTICLE X
MISCELLANEOUS PROVISIONS...............................................123
SECTION 10.01 Amendment............................................123
SECTION 10.02 Recordation of Agreement; Counterparts...............124
SECTION 10.03 Governing Law........................................125
SECTION 10.04 [Reserved]...........................................125
SECTION 10.05 Notices..............................................125
SECTION 10.06 Severability of Provisions...........................126
SECTION 10.07 Assignment...........................................126
SECTION 10.08 Limitation on Rights of Certificateholders...........126
SECTION 10.09 Certificates Nonassessable and Fully Paid............127
EXHIBITS
EXHIBIT A. Form of Class A Certificates..................................A-1
EXHIBIT B. Form of Subordinate Certificate...............................B-1
EXHIBIT C. Form of Residual Certificate..................................C-1
EXHIBIT D. [Reserved]....................................................D-1
EXHIBIT E. Form of Class P Certificate...................................E-1
EXHIBIT F. Form of Reverse Certificates..................................F-1
EXHIBIT G. Form of Initial Certification of Custodian....................G-1
EXHIBIT H. Form of Final Certification of Custodian......................H-1
EXHIBIT I. Transfer Affidavit............................................I-1
EXHIBIT J. Form of Transferor Certificate................................J-1
EXHIBIT K. Form of Investment Letter (Non-Rule 144A).....................K-1
EXHIBIT L. Form of Rule 144A Letter......................................L-1
EXHIBIT M. Request for Release...........................................M-1
EXHIBIT N. Form of Subsequent Transfer Agreement.........................N-1
EXHIBIT O-1. Form of Collection Account Certification....................O-1-1
EXHIBIT O-2. Form of Collection Account Letter Agreement.................O-2-1
EXHIBIT P-1. Form of Escrow Account Certification .......................P-1-1
iv
EXHIBIT P-2. Form of Escrow Account Letter Agreement.....................P-2-1
EXHIBIT Q. Form of Monthly Remittance Advice.............................Q-1
EXHIBIT R. Form of Custodial Agreement...................................R-1
EXHIBIT S. FSA Policy....................................................S-1
EXHIBIT T. Data Fields for Ocwen Serviced Loans Transferred to Wilshire..T-1
EXHIBIT U. Charged Off Loan Data Report..................................U-1
SCHEDULE I Mortgage Loan Schedule........................................I-1
SCHEDULE II Seller's Representations and Warranties......................II-1
SCHEDULE IIIA Wilshire Representations and Warranties...................III-A-1
SCHEDULE IIIB Ocwen Representations and Warranties......................III-B-1
SCHEDULE IV Representations and Warranties for the Mortgage Loans........IV-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of April 1, 2002,
among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware
corporation, as depositor (the "Depositor"), DLJ MORTGAGE CAPITAL, INC., a
Delaware corporation, as Seller (the "Seller"), WILSHIRE CREDIT CORPORATION, a
Nevada corporation, as a servicer (a "Servicer"), OCWEN FEDERAL BANK FSB, a
federally chartered savings bank, as a servicer (a "Servicer") and JPMORGAN
CHASE BANK, a New York banking corporation, as trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor intends to sell pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Trust Fund created hereunder. The Certificates will consist of eleven
classes of certificates, designated as (i) the Class A-1 Certificates, (ii) the
Class A-2 Certificates, (iii) the Class A-3 Certificates, (iv) the Class M-1
Certificates, (v) the Class M-2 Certificates, (vi) the Class B-1A Certificates,
(vii) the Class B-1B Certificates, (viii) the Class P Certificates, (ix) the
Class X-1 Certificates, (x) the Class X-2 Certificates and (xi) the Class A-R
Certificates.
REMIC 1
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement (exclusive of the Pre-Funding Account,
the Capitalized Interest Account, the Reserve Fund and the Subsequent Mortgage
Loan Interest) as a real estate mortgage investment conduit (a "REMIC") for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC 1." The Class R-1 Interest will represent the sole class of
"residual interests" in REMIC 1 for purposes of the REMIC Provisions (as defined
herein) under federal income tax law (the "Class R-1 Interest"). The following
table irrevocably sets forth the designation, the Uncertificated REMIC 1
Pass-Through Rate, the initial Uncertificated Principal Balance, and solely for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC 1 Regular Interests. None
of the REMIC 1 Regular Interests will be certificated. The latest possible
maturity date (determined solely for purposes of satisfying Treasury regulation
Section 1.860G- 1(a)(4)(iii)) of each of the REMIC 1 Regular Interests will be
the Latest Possible Maturity Date as defined herein.
Uncertificated REMIC Initial Uncertificated
Designation 1 Pass-Through Rate Principal-Balance
----------- ------------------- -----------------
LT-1 Variable(1) $ 432,236,121.95
LT-1X Variable(1) $ 23,463,878.05
LT-2 Variable(1) $ 1,759,486.52
LT-2X Variable(1) $ 95,513.48
LT-3 Variable(1) $ 1,546,071.71
LT-3X Variable(1) $ 83,928.29
LT-4 Variable(1) $ 213,414.81
LT-4X Variable(1) $ 11,585.19
LT-5 Variable(1) $ 379,404.10
LT-5X Variable(1) $ 20,595.90
LT-6 Variable(1) $ 365,176.45
LT-6X Variable(1) $ 19,823.55
LT-7 Variable(1) $ 73,509.54
LT-7X Variable(1) $ 3,990.46
LT-8 Variable(1) $ 73,509.54
LT-8X Variable(1) $ 3,990.46
LT-9 Variable(1) $ 4,410,572.67
LT-9X Variable(1) $ 239,427.33
LT-P Variable(1) $ 94.85
LT-PX Variable(1) $ 5.15
LT-R Variable(1) $ 94.85
LT-RX Variable(1) $ 5.15
--------------------------------------------------------------------------------
----------
(1) Calculated as provided in the definition of Uncertificated Pass-Through
Rate.
REMIC 2
As provided herein, an election will be made to treat the segregated pool
of assets consisting of the Uncertificated REMIC 1 Regular Interests (exclusive
of the Pre-Funding Account, the Capitalized Interest Account and the Reserve
Fund) as a REMIC for federal income tax purposes, and such segregated pool of
assets will be designated as REMIC 2. The Class R-2 Interest will represent the
sole class of "residual interests" in REMIC 2 for purposes of the REMIC
Provisions under federal income tax law (the "Class R-2 Interest"). The
following table irrevocably sets forth the designation, Pass-Through Rate,
aggregate Initial Certificate Principal Balance, certain features,
2
Maturity Date and initial ratings for each Class of Certificates comprising the
interests representing "regular interests" in REMIC 2. The latest possible
maturity date (determined solely for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii)) of each of the REMIC 2 Regular Interests will be
the Latest Possible Maturity Date as defined herein.
Integral Multiples
Class Certificate Pass-Through Minimum in Excess
Balance Rate Denomination of Minimum
------- ---- ------------ ----------
Class A-1 $185,500,000.00 5.682%(1) $ 25,000 $1
Class A-2 $163,000,000.00 Adjustable(2) $ 25,000 $1
Class A-3 $ 22,500,000.00 Adjustable(2) $ 25,000 $1
Class P $ 100.00 Variable(3) $ 100 N/A
Class A-R $ 100.00 Variable(3) $ 100 N/A
Class M-1 $ 40,000,000.00 Adjustable(2) $ 25,000 $1
Class M-2 $ 38,500,000.00 Adjustable(2) $ 25,000 $1
Class B-1A $ 7,750,000.00 Adjustable(2) $ 25,000 $1
Class B-1B $ 7,750,000.00 Adjustable(2) $ 25,000 $1
Class X-1 $ 0(4) Variab$1(5) $ 25,000 $1
Class X-2 $ 0 0.00% N/A N/A
--------------
(1) The Class A-1 Certificates have fixed rates subject to the Net Funds Cap.
(2) The Class A-2, Class A-3, Class M-1, Class M-2, Class B-1A and Class B-1B
Certificates are adjustable rate and will receive interest pursuant to
formulas based on LIBOR, subject to the Net Funds Cap.
(3) The initial pass-through rates on the Class P and Class A-R Certificates
will be approximately 11.85% per annum and will vary after the first
Distribution Date.
(4) The Class X-1 Certificates will have an initial principal balance of $0.00
and will accrue interest on its notional amount. For any Distribution
Date, the notional amount of the Class X-1 Certificates will be equal to
the Aggregate Collateral Balance immediately prior to such Distribution
Date. The initial notional amount of the Class X-1 Certificates is
$465,000,200.
(5) The Class X-1 Certificates are variable rate and will accrue interest on a
notional amount.
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.
ERISA-Restricted Certificates.... Class A-R, Class P and Class X Certificates.
3
LIBOR Certificates............... Class X-0, Xxxxx X-0, Class M-1, Class M-2,
Class B-1A and Class B-1B Certificates.
Notional Amount Certificates..... Class X-1 Certificates.
Class A Certificates............. Class A-1, Class A-2, Class A-3 and Class A-R
Certificates.
Class B Certificates............. Class B-1A and Class B-1B Certificates.
Class M Certificates............. Class M-1 and Class M-2 Certificates.
Offered Certificates............. All Classes of Certificates (other than the
Class P and Class X Certificates).
Physical Certificates............ Class A-R, Class P and Class X Certificates.
Private Certificates............. Class P and Class X Certificates.
Rating Agencies.................. S&P and Xxxxx'x.
Regular Certificates............. All Classes of Certificates other than the
Class A-R Certificates.
Residual Certificates............ Class A-R Certificates.
Senior Certificates.............. Class A-1, Class A-2, Class A-3, Class P and
Class A-R Certificates.
Subordinate Certificates......... Class M-1, Class M-2, Class B-1A, Class B-1B
and Class X-1 Certificates.
Minimum Denominations............ Class A-1, Class X-0, Xxxxx X-0, Class M-1,
Class M-2, Class B-1A and Class B-1B
Certificates: $25,000 and multiples of $1 in
excess thereof.
Class A-R and Class P Certificates: $100. The
Class X-1 Certificates will be issued as a
single Certificate with a Certificate
Principal Balance of $0.00. The Class X-2
Certificates will be issued as a single
Certificate and will not have a principal
balance.
4
ARTICLE I
DEFINITIONS
SECTION 1.01
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.
Advance: The payment required to be made by a Servicer with respect
to any Distribution Date pursuant to Section 4.01.
Aggregate Collateral Balance: As of any date of determination will
be equal to the Aggregate Loan Balance plus the amount, if any, then on deposit
in the Pre-Funding Account.
Aggregate Loan Balance: As of any Distribution Date will be equal to
the aggregate of the Stated Principal Balances of the Mortgage Loans determined
as of the last day of the related Collection Period.
Aggregate Subsequent Transfer Amount: With respect to any Subsequent
Transfer Date, the aggregate Stated Principal Balances as of the applicable
Cut-off Date of the Subsequent Mortgage Loans conveyed on such Subsequent
Transfer Date, as listed on the revised Mortgage Loan Schedule delivered
pursuant to Section 2.01(b); provided, however, that such amount shall not
exceed the amount on deposit in the Pre-Funding Account.
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 Prepayment Penalties, including but not limited to, late
charges, fees received with respect to checks or bank drafts returned by the
related bank for non-sufficient funds, assumption fees, optional insurance
administrative fees and all other incidental fees and charges.
Applied Loss Amount: As to any Distribution Date, an amount equal to
the excess, if any of (i) the aggregate Class Principal Balance of the
Certificates after giving effect to all Realized Losses incurred with respect to
the Mortgage Loans during the Due Period for such Distribution Date and payments
of principal on such Distribution Date over (ii) the Aggregate Loan Balance for
such Distribution Date.
5
Appraised Value: The amount set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Assignment Agreement: An assignment agreement between DLJ Mortgage
Capital, Inc. as Seller and the Depositor, whereby the Mortgage Loans are
transferred and the representations and warranties on the related Mortgage Loans
are made.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the Trustee for the benefit of the
Certificateholders.
Available Funds: With respect to any Distribution Date the sum of
(i) all 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, together with any Advances in respect thereof; (ii)
all Insurance Proceeds, Liquidation Proceeds and Net Recoveries received during
the month preceding the month of such Distribution Date; (iii) all Curtailments
and Payoffs received during the Prepayment Period applicable to such
Distribution Date (excluding Prepayment Penalties); (iv) amounts received with
respect to such Distribution Date as the Substitution Adjustment Amount or
Repurchase Price; (v) Compensating Interest Payments for such Distribution Date;
and (vi) with respect to the Distribution Date in July 2002, the amount
remaining in the Pre-Funding Account at the end of the Pre-Funding Period; as to
clauses (i) through (iv) above, reduced by amounts in reimbursement for Advances
previously made and other amounts as to which the Servicers are entitled to be
reimbursed pursuant to Section 3.08.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
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) LIBOR 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) LIBOR plus the applicable Certificate Margin and (y) the Maximum Interest
Rate.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York, or the
city in which the Corporate Trust Office of the Trustee, or savings and loan
institutions in the States of Illinois, California, Texas, New Jersey or Florida
is located are authorized or obligated by law or executive order to be closed.
Capitalized Interest Account: The separate Eligible Account
designated as such and created and maintained by the Trustee pursuant to Section
3.05(g) hereof. The Capitalized Interest Account shall be treated as an "outside
reserve fund" under applicable Treasury regulations and shall not be part of any
REMIC. Except as provided in Section 3.05(g) hereof, any investment earnings
6
on the Capitalized Interest Account shall be treated as owned by the Depositor
and will be taxable to the Depositor.
Capitalized Interest Deposit: With respect to the Capitalized
Interest Account, $273,456.16.
Capitalized Interest Requirement: With respect to the May 2002
Distribution Date, an amount equal to 30 days of interest accruing at a per
annum rate equal to (x) the weighted average Pass-Through Rate of the Offered
Certificates multiplied by (y) the Pre-Funded Amount outstanding at the end of
the related Due Period. With respect to the June 2002 Distribution Date, an
amount equal to interest accruing during the related Interest Accrual Period at
a per annum rate equal to (x) the weighted average Pass-Through Rate of the
Offered Certificates for such Distribution Date multiplied by (y) the sum of (a)
the Pre-Funded Amount at the end of the related Due Period and (b) the aggregate
Stated Principal Balance of the Subsequent Mortgage Loans that do not have a
first Due Date prior to June 1, 2002, transferred to the Trust during the
related Due Period. With respect to the July 2002 Distribution Date, an amount
equal to interest accruing during the related Interest Accrual Period at a per
annum rate equal to (x) the weighted average Pass-Through Rate of the Offered
Certificates for such Distribution Date multiplied by (y) the sum of (a) the
Pre-Funded Amount at the end of the related Due Period and (b) the aggregate
Stated Principal Balance of the Subsequent Mortgage Loans that do not have a
first Due Date prior to July 1, 2002, transferred to the Trust during the
related Due Period.
Carryforward Interest: For any Class of Certificates and any
Distribution Date, the sum of (1) the amount, if any, by which (x) the sum of
(A) Current Interest for such Class for the immediately preceding Distribution
Date and (B) any unpaid Carryforward Interest 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 Interest Accrual Period at the applicable Pass-Through Rate.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificates: As specified in the Preliminary Statement.
Certificate Account: The separate Eligible Account created and
maintained with the Trustee, or any other bank or trust company acceptable to
the Rating Agencies which is incorporated under the laws of the United States or
any state thereof pursuant to Section 3.05, which account shall bear a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Trustee on behalf of the Certificateholders or any
other account serving a similar function acceptable to the Rating Agencies.
Funds in the Certificate Account may (i) be held uninvested without liability
for interest or compensation thereon or (ii) be invested at the direction of the
Trustee in Eligible Investments and reinvestment earnings thereon (net of
investment losses) shall be paid to the Trustee. Funds deposited in the
Certificate Account (exclusive of the Trustee Fee and other amounts permitted to
be withdrawn pursuant to Section 3.08) shall be held in trust for the
Certificateholders.
7
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
the sum of (i) all distributions of principal previously made with respect
thereto and (ii) all Realized Losses allocated thereto and, in the case of any
Subordinate Certificates, all other reductions in Certificate Balance previously
allocated thereto pursuant to Section 4.05. Exclusively for the purpose of
determining any subrogation rights of FSA arising under Section 4.10 hereof,
"Certificate Balance" of the Class A-1 Certificates and Class A-2 Certificates
shall not be reduced by the amount of any payments made by FSA in respect of
principal on such Certificates under the FSA Policy, except to the extent such
payment shall have been reimbursed to FSA pursuant to the provisions of this
Agreement.
Certificate Insurer: FSA, as issuer of the FSA Policy.
Certificate Margin: As to each Class of LIBOR Certificates, the
applicable amount set forth below:
Class Certificate Margin
------------- -------------------------
(1) (2)
A-2 0.34% 0.68%
A-3 0.44% 0.88%
M-1 1.10% 1.60%
M-2 1.95% 2.45%
B-1A 2.50% 3.00%
B-1B 3.15% 3.65%
-----------------
(1) On or prior to the Optional Termination Date.
(2) After the Optional Termination Date.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any
8
affiliate of the Depositor in determining which Certificates are registered in
the name of an affiliate of the Depositor.
Charged Off Loan: Any Mortgage Loan that is charged off by the
related Servicer pursuant to Section 3.11(a), no later than the date on which
such Mortgage Loan becomes 180 days delinquent.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A-1 Pass-Through Rate: With respect to any Interest Accrual
Period (a) on or prior to the Optional Termination Date, the lesser of (i)
5.682% per annum and (ii) the Net Funds Cap, and (b) after the Optional
Termination Date, the lesser of (i) 6.182% per annum and (ii) the Net Funds Cap.
Class A-2 Pass-Through Rate: With respect to any Interest Accrual
Period, will be a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related Certificate Margin and (ii) the Net Funds Cap.
Class A-3 Pass-Through Rate: With respect to any Interest Accrual
Period, will be a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related Certificate Margin and (ii) the Net Funds Cap.
Class A-R Pass-Through Rate: With respect to any Distribution Date,
a per annum rate equal to the Net Funds Cap. For federal income tax purposes,
however, with respect to any Distribution Date, a per annum rate equal to the
weighted average of the Uncertificated Pass- Through Rate for REMIC 1 Regular
Interests LT-R and LT-RX.
Class B-1A Pass-Through Rate: With respect to any Interest Accrual
Period, will be a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related Certificate Margin and (ii) the Net Funds Cap.
Class B-1B Pass-Through Rate: With respect to any Interest Accrual
Period, will be a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related Certificate Margin and (ii) the Net Funds Cap.
Class B Principal Payment Amount: With respect to the Class B
Certificates and for any Distribution Date on or after the Stepdown Date and as
long as a Trigger Event is not in effect with respect to such Distribution Date,
will be the amount, if any, by which (x) the sum of (i) the aggregate Class
Principal Balance of the Class A-1, Class A-2, Class A-3, Class P, Class A-R,
Class M-1 and Class M-2 Certificates, in each case, after giving effect to
payments on such Distribution Date and (ii) the aggregate Class Principal
Balance of the Class B Certificates immediately prior to such Distribution Date
exceeds (y) the lesser of (A) the product of (i) 92.50% and (ii) the Aggregate
Collateral Balance for such Distribution Date and (B) the amount, if any, by
which (i) the Aggregate Collateral Balance for such Distribution Date exceeds
(ii) 0.50% of the Aggregate Collateral Balance as of the Cut-off Date.
9
Class M-1 Pass-Through Rate: With respect to any Interest Accrual
Period, will be a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related Certificate Margin and (ii) the Net Funds Cap.
Class M-1 Principal Payment Amount: For any Distribution Date on or
after the Stepdown Date and as long as a Trigger Event is not in effect with
respect to such Distribution Date, will be the amount, if any, by which (x) the
sum of (i) the aggregate Class Principal Balance of the Class A-1, Class A-2,
Class A-3, Class P and Class A-R Certificates after giving effect to payments on
such Distribution Date and (ii) the Class Principal Balance of the Class M-1
Certificates immediately prior to such Distribution Date exceeds (y) the lesser
of (A) the product of (i) 69.27% and (ii) the Aggregate Collateral Balance for
such Distribution Date and (B) the amount, if any, by which (i) the Aggregate
Collateral Balance for such Distribution Date exceeds (ii) 0.50% of the
Aggregate Collateral Balance as of the Cut-off Date.
Class M-2 Pass-Through Rate: With respect to any Interest Accrual
Period, will be a per annum rate equal to the lesser of (i) the sum of LIBOR
plus the related Certificate Margin and (ii) the Net Funds Cap.
Class M-2 Principal Payment Amount: For any Distribution Date on or
after the Stepdown Date and as long as a Trigger Event has not occurred with
respect to such Distribution Date, will be the amount, if any, by which (x) the
sum of (i) the aggregate Class Principal Balance of the Class A-1, Class A-2,
Class A-3, Class P, Class A-R and Class M-1 Certificates, in each case, after
giving effect to payments on such Distribution Date and (ii) the Class Principal
Balance of the Class M-2 Certificates immediately prior to such Distribution
Date exceeds (y) the lesser of (A) the product of (i) 85.83% and (ii) the
Aggregate Collateral Balance for such Distribution Date and (B) the amount, if
any, by which (i) the Aggregate Collateral Balance for such Distribution Date
exceeds (ii) 0.50% of the Aggregate Collateral Balance as of the Cut-off Date.
Class X-1 Distributable Amount: With respect to any Distribution
Date, the amount of interest accrued during the related Interest Accrual Period
at the related Pass-Through Rate on the Class X-1 Notional Amount for such
Distribution Date.
Class X-1 Notional Amount: Immediately prior to any Distribution
Date, with respect to the Class X-1 Certificates, an amount equal to the
aggregate of the Uncertificated Principal Balances of the REMIC 1 Regular
Interests (other than REMIC 1 Regular Interests LT-P, LT-PX, LT-R and LT-RX).
Class P Pass-Through Rate: With respect to any Distribution Date and
the Class P Certificates, a per annum rate equal to the Net Funds Cap. For
federal income tax purposes, however, with respect to any Distribution Date and
the Class P Certificates, the equivalent of the foregoing, expressed as a per
annum rate equal to the weighted average of the Uncertificated Pass-Through
Rates for REMIC 1 Regular Interests LT-P and LT-PX.
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.
10
Closing Date: April 25, 2002.
Code: The Internal Revenue Code of 1986, as the same may be amended
from time to time (or any successor statute thereto).
Collection Accounts: The accounts established and maintained by a
Servicer in accordance with Section 3.05.
Collection Period: With respect to any Distribution Date, the period
from the second day of the month immediately preceding such Distribution Date to
and including the first day of the month of such Distribution Date.
Combined Loan-to-Value Ratio: With respect to any Mortgage Loan and
as to any date of determination, the fraction (expressed as a percentage) the
numerator of which is the sum of (i) principal balance of the related Mortgage
Loan at such date of determination and (ii) the principal balance of the related
First Mortgage Loan as of the date of origination of that Mortgage Loan and the
denominator of which is the Appraised Value of the related Mortgaged Property.
Compensating Interest Payment: For any Distribution Date, an amount
to be paid by the applicable Servicer for such Distribution Date, equal to the
lesser of (i) an amount equal to one half of the monthly Servicing Fee Rate on
the Mortgage Loans being serviced by the related Servicer otherwise payable to
the related Servicer on such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loans on such Due Date) and (ii) the
aggregate Prepayment Interest Shortfall for the Mortgage Loans being serviced by
the related Servicer relating to Principal Prepayments received during the
related Prepayment Period.
Corporate Trust Office: The designated office of the Trustee in the
State of New York 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: Institutional Trust
Services/Structured Finance: CSFB-2002-S12.
Corresponding Certificate: With respect to (i) REMIC 1 Regular
Interests LT-P and LT-PX, (ii) REMIC 1 Regular Interests LT-R and LT-RX, (iii)
REMIC 1 Regular Interests LT-2 and LT-2X, (iv) REMIC 1 Regular Interests LT-3
and LT-3X, (v) REMIC 1 Regular Interests LT-4 and LT-4X, (vi) REMIC 1 Regular
Interests LT-5 and LT-5X, (vii) REMIC 1 Regular Interests LT-6 and LT-6X, (viii)
REMIC 1 Regular Interests LT-7 and LT-7X and (ix) REMIC 1 Regular Interests LT-8
and LT-8X, the (i) Class P Certificates, (ii) Class A-R Certificates, (iii)
Class A-1 Certificates, (iv) Class A-2 Certificates, (v) Class A-3 Certificates,
(vi) Class M-1 Certificates, (vii) Class M-2 Certificates, (viii) Class B-1A
Certificates and (ix) Class B-1B Certificates, respectively.
Credit Risk Manager: The Murrayhill Company, a Colorado corporation.
Credit Risk Management Agreement: Either of the agreements between a
Servicer and the Credit Risk Manager dated as of April 25, 2002.
11
Credit Risk Manager Fee: As to each Mortgage Loan and any
Distribution Date, an amount equal to one month's interest at the Credit Risk
Manager 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).
Credit Risk Manager Fee Rate: 0.0175% per annum.
CSFB: Credit Suisse First Boston Corporation, a Delaware
corporation, and its successors and assigns.
Cumulative Loss Event: For any Distribution Date, a Cumulative Loss
Event is occurring if Cumulative Net Realized Losses on the Mortgage Loans equal
or exceed the percentage of the Aggregate Collateral Balance as of the Cut-off
Date for that Distribution Date as specified below:
Percentage of Aggregate
Distribution Date Collateral-Balance
------------------------------- --------------------------------
May 2002 - April 2005.......... N.A.
May 2005 - April 2006.......... 6.75%
May 2006 - April 2007.......... 7.50%
May 2007 - April 2008.......... 8.50%
May 2008 - April 2009.......... 8.75%
May 2009 and thereafter........ 9.25%
Cumulative Net Realized Losses: As to any date of determination the
aggregate amount of Realized Losses as reduced by any Net Recoveries received on
Charged Off Loans.
Current Interest: For any Class of Certificates and Distribution
Date, the amount of interest accruing at the applicable Pass-Through Rate on the
related Class Principal Balance, or Notional Amount, as applicable, of such
Class during the related Interest Accrual Period; provided, that if and to the
extent that on any Distribution Date the Interest Remittance Amount is less than
the aggregate distributions required pursuant to Section 4.02(b)(i)A-F without
regard to this proviso, then the Current Interest on each such Class will be
reduced, on a pro rata basis in proportion to the amount of Current Interest for
each Class without regard to this proviso, by the lesser of (i) the amount of
the deficiency described above in this proviso and (ii) the related Interest
Shortfall for such Distribution Date.
Curtailment: Any payment of principal on a Mortgage Loan, made by or
on behalf of the related Mortgagor, other than a Scheduled Payment, a prepaid
Scheduled Payment or a Payoff, which is applied to reduce the outstanding Stated
Principal Balance of the Mortgage Loan.
Custodial Agreement: The agreement, among the Trustee, the related
Custodian and the Depositor providing for the safekeeping of any documents or
instruments referred to in Section 2.01 on behalf of the Certificateholders,
attached hereto as Exhibit R.
12
Custodian: Either of (i) Bank One Trust Company, N.A., a national
banking association or (ii) LaSalle Bank National Association, a national
banking association, or any successor custodian appointed pursuant to the terms
of the related Custodial Agreement. Each Custodian so appointed shall act as
agent on behalf of the Trustee, and shall be compensated by the Depositor. 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: For any Mortgage Loan, other than a Subsequent
Mortgage Loan, April 1, 2002. For any Subsequent Mortgage Loan, the applicable
Subsequent Transfer Date.
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.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deferred Amount: For any Class of Class M or Class B Certificates
and any Distribution Date, will equal the amount by which (x) the aggregate of
the Applied Loss Amounts previously applied in reduction of the Class Principal
Balance thereof exceeds (y) the aggregate of amounts previously paid in
reimbursement thereof.
Definitive Certificates: Any Certificate issued in lieu of a
Book-Entry Certificate pursuant to Section 5.02(e).
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Rate: For any month, a fraction, expressed as a
percentage, the numerator of which is the aggregate outstanding principal
balance of all Mortgage Loans 60 or more days delinquent (including all
foreclosures, bankruptcies and REO Properties) as of the close of business on
the last day of such month, and the denominator of which is the Aggregate
Collateral Balance as of the close of business on the last day of such month.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Depositor: Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
13
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date and any Mortgage
Loan, the second Business Day immediately following the 15th day of the month of
such Distribution Date.
Distribution Date: The 25th day of each month or if such day is not
a Business Day, the first Business Day thereafter, commencing in May 2002.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation, and its
successors and assigns.
Due Date: With respect to any Distribution Date, the first day of
the month in which the related Distribution Date occurs.
Due 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.
Eligible Account: Either (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company acceptable
to the Rating Agencies or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided that
any such deposits not so insured shall be maintained in an account at a
depository institution or trust company whose commercial paper or other short
term debt obligations (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the commercial
paper or other short term debt obligations of such holding company) have been
rated by each Rating Agency in its highest short-term rating category, or (iii)
a segregated trust account or accounts (which shall be a "special deposit
account") maintained with the Trustee or any other federal or state chartered
depository institution or trust company, acting in its fiduciary capacity, in a
manner acceptable to the Trustee and the Rating Agencies. Eligible Accounts may
bear interest.
Eligible Institution: An institution having the highest short-term
debt rating, and one of the two highest long-term debt ratings of the Rating
Agencies or the approval of the Rating Agencies.
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date of maturity not
later than the Determination Date in each month:
(i) 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; Xxxxxxx Mac, Xxxxxx Xxx, the
14
Federal Home Loan Banks or any agency or instrumentality of the United
States of America rated AA or higher by the Rating Agencies;
(ii) 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;
(iii) repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered into
with a depository institution or trust company (acting as a principal)
rated A or higher by the Rating Agencies; provided, however, that
collateral transferred pursuant to such repurchase obligation must be of
the type described in clause (i) above and must (A) be valued daily at
current market price plus accrued interest, (B) pursuant to such
valuation, be equal, at all times, to 105% of the cash transferred by the
Trustee in exchange for such collateral, and (C) be delivered to the
Trustee or, if the Trustee is supplying the collateral, an agent for the
Trustee, in such a manner as to accomplish perfection of a security
interest in the collateral by possession of certificated securities;
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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
15
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 Servicers or the Trustee and
any such funds that are managed by the Servicer or the Trustee or their
respective Affiliates or for the Servicers or the Trustee or any Affiliate
of either acts as advisor, as long as such money market funds satisfy the
criteria of this subparagraph (vii); and
(viii) 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-Restricted Certificates: As specified in the Preliminary
Statement.
Escrow Account: The separate account or accounts created and
maintained by each Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, mortgage insurance premiums, fire and hazard
insurance premiums, and any other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or any
other related document.
Event of Default: As defined in Section 7.01.
Expense Fees: As to each Mortgage Loan, the sum of the related
Servicing Fee, the Credit Risk Manager Fee and the Trustee Fee.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Servicing Fee Rate, the Credit Risk Manager Fee Rate and the Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Financial Security Default: Any failure by FSA to pay any Insured
Payment pursuant to the terms of the FSA Policy.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989.
16
First Mortgage Loan: A Mortgage Loan that is secured by a first lien
on the Mortgaged Property securing the related Mortgage Note.
Fitch: Fitch, Inc., or any successor thereto, located at Xxx Xxxxx
Xxxxxx Xxxxx 00xx Xxxxx, Xxx Xxxx, XX 00000.
Xxxxxx Xxx: Xxxxxx Xxx, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide and all amendments or additions thereto.
Xxxxxxx Mac: Xxxxxxx Mac, 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.
FSA: Financial Security Assurance Inc., a New York stock insurance
company, or any successor thereto.
FSA Account: The account established pursuant to Section 4.10(c)
hereof.
FSA Contact Persons: Collectively, the officers designated by each
Servicer to provide information to FSA pursuant to Section 4.10(l).
FSA Policy: The irrevocable Certificate Guaranty Insurance Policy,
No. 51275 including any endorsements thereto, issued by FSA with respect to the
Class A-1 Certificates and Class A-2 Certificates, in the form attached hereto
as Exhibit S.
FSA Premium: With respect to any Distribution Date, an amount equal
to 1/12th of the product of (a) the aggregate Class Principal Balance of the
Class A-1 Certificates and Class A-2 Certificates as of such Distribution Date
(prior to giving effect to any distributions thereon on such Distribution Date)
and (b) the Premium Percentage.
FSA Reimbursement Amount: For any Distribution Date, the sum of (i)
all amounts paid by FSA under the FSA Policy which have not been previously
reimbursed, (ii) all unpaid FSA Premiums, (iii) all amounts due to FSA under
this Agreement and (iv) interest on the foregoing at the applicable Late Payment
Rate, in each case accruing from the date such amount was first due and payable
to FSA to and including such Distribution Date.
Guaranteed Distributions: As defined in the FSA Policy.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
17
Initial Mortgage Loan: A Mortgage Loan conveyed to the Trust on the
Closing Date pursuant to this Agreement as identified on the Mortgage Loan
Schedule delivered to the Trustee on the Closing Date.
Initial Mortgage Loan Net WAC Rate: A per annum rate equal to the
weighted average of the Net Mortgage Rates of the Initial Mortgage Loans.
Insurance Proceeds: Proceeds paid under any Insurance Policy
covering a Mortgage Loan to the extent the proceeds are not applied to the
restoration of the related Mortgaged Property or released to the Mortgagor in
accordance with the procedures that the Servicer would follow in servicing
mortgage loans held for its own account.
Insured Certificates: Any of the Class A-1 Certificates or Class A-2
Certificates.
Insured Payment: As to any Distribution Date, an amount actually
paid under the FSA Policy for such Distribution Date.
Interest Accrual Period: With respect to each Distribution Date, (i)
with respect to the Class A-1, Class P, Class A-R and Class X-1 Certificates,
the calendar month prior to the month of such Distribution Date, (ii) with
respect to the Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class B-1A and Class
B-1B Certificates, the one-month period commencing on the immediately preceding
Distribution Date (or the Closing Date, in the case of the first Distribution
Date) and ending on the day immediately preceding the related Distribution Date.
Interest Remittance Amount: For any Distribution Date, an amount
equal to the sum of (1) all interest collected (other than Payaheads, if
applicable) or advanced in respect of Scheduled Payments on the Mortgage Loans
during the related Due Period, the interest portion of Payaheads previously
received and intended for application in the related Due Period and the interest
portion of all Payoffs and Curtailments received on the Mortgage Loans during
the related Prepayment Period, less (x) the Expense Fee with respect to such
Mortgage Loans and (y) unreimbursed Advances and other amounts due to a Servicer
or the Trustee with respect to such Mortgage Loans, to the extent allocable to
interest, (2) all Compensating Interest Payments paid by each Servicer with
respect to the Mortgage Loans it is servicing and such Distribution Date, (3)
the portion of any Substitution Adjustment Amount or Repurchase Price paid with
respect to such Mortgage Loans during the calendar month immediately preceding
the Distribution Date allocable to interest, (4) all Liquidation Proceeds, Net
Recoveries and any Insurance Proceeds and other recoveries (net of unreimbursed
Advances, Servicing Advances and expenses, to the extent allocable to interest,
and unpaid Servicing Fees) collected with respect to the Mortgage Loans during
the prior calendar month, to the extent allocable to interest and (5) any
amounts withdrawn from the Capitalized Interest Account to pay interest on the
Certificates with respect to such Distribution Date.
Interest Shortfall: For any Distribution Date, the aggregate
shortfall, if any, in collections of interest for the previous month (adjusted
to the related Net Mortgage Rate) on Mortgage Loans resulting from (a) Principal
Prepayments received during the related Prepayment Period to the extent not
covered by Compensating Interest and (b) Relief Act Reductions.
18
Investment Account: The commingled account (which shall be
commingled only with investment accounts related to series of pass-through
certificates with a Class of certificates which has a rating equal to the
highest of the Ratings of the Certificates) maintained by a Servicer in the
trust department of the Investment Depository pursuant to Section 3.05.
Investment Depository: JPMorgan Chase Bank, New York, New York or
another bank or trust company designated from time to time by a Servicer. The
Investment Depository shall at all times be an Eligible Institution.
Last Scheduled Distribution Date: With respect to each Class of
Certificates the Distribution Date in July 2032.
Late Payment Rate: With respect to each Class of Insured
Certificates, the lesser of (a) the greater of (i) the per annum rate of
interest, publicly announced from time to time by JPMorgan Chase Bank at its
principal office in New York, New York, as its prime or base lending rate (any
change in such rate of interest to be effective on the date such change is
announced by JPMorgan Chase Bank) plus 3%, and (ii) the related Pass-Through
Rate and (b) the maximum rate permissible under applicable usury or similar laws
limiting interest rates. The Late Payment Rate shall be computed on the basis of
the actual number of days elapsed over a year of 360 days.
Latest Possible Maturity Date: Solely for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" of all interests created in REMIC 1 and REMIC 2 shall be July 25, 2032.
LIBOR: For any Interest Accrual Period other than the first Interest
Accrual Period, the rate for United States dollar deposits for one month which
appears on the Dow Xxxxx Telerate Screen Page 3750 as of 11:00 A.M., London,
England time, on the second LIBOR Business Day prior to the first day of such
Interest Accrual Period. With respect to the first Interest Accrual Period, the
rate for United States dollar deposits for one month which appears on the Dow
Xxxxx Telerate Screen Page 3750 as of 11:00 A.M., London, England time, two
LIBOR Business Days prior to the Closing Date. If such rate does not appear on
such page (or such other page as may replace that page on that service, or if
such service is no longer offered, such other service for displaying LIBOR or
comparable rates as may be reasonably selected by the Trustee), the rate will be
the Reference Bank Rate. If no such quotations can be obtained and no Reference
Bank Rate is available, LIBOR will be the LIBOR applicable to the Interest
Accrual Period preceding the next applicable Distribution Date.
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.
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
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.
19
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 and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Expense Fees, Servicing Advances,
Advances and reasonable out-of-pocket expenses.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, in excess of
50% of the Percentage Interests evidenced by all Certificates of such Class.
Marker Rate: With respect to the Class X-1 Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the Uncertificated REMIC 1 Pass- Through Rates for REMIC 1 Regular Interests
LT-2, LT-2X, LT-3, LT-3X, LT-4, LT-4X, LT-5, LT- 5X, LT-6, LT-6X, LT-7, LT-7X,
LT-8, LT-8X, LT-9 and LT-9X, with the rates on REMIC 1 Regular Interests LT-2
and LT-2X subject to a cap and a floor equal to the lesser of (A) with respect
to any Interest Accrual Period on or prior to the Optional Termination Date,
5.682% per annum, and with respect to any Interest Accrual Period after the
Optional Termination Date, 6.182% per annum and (B) the REMIC 1 Net WAC Rate for
the purpose of this calculation, with the rates on REMIC 1 Regular Interests
LT-3, LT-3X, LT-4, LT-4X, LT-5, LT-5X, LT-6, LT-6X, LT-7, LT-7X, LT-8 and LT-8X
subject to a cap and a floor equal to the lesser of (A) LIBOR plus the
Certificate Margin for the Corresponding Certificate and (B) the REMIC 1 Net WAC
Rate for the purpose of this calculation, and with the rate on REMIC 1 Regular
Interests LT-9 and LT 9-X subject to a cap of zero for the purpose of this
calculation.
Maximum Interest Rate: An annual rate equal to the weighted average
of the Net Mortgage Rates of the Mortgage Loans.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R) System.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
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.
20
Monthly Excess Interest: As to any Distribution Date, the sum of (A)
the Interest Remittance Amount remaining after the application of payments
pursuant to clauses A. through F. of Section 4.02(b)(i) plus (B) the Principal
Payment Amount remaining after the application of payments pursuant to clauses
A. through E. of Section 4.02(b)(ii) or (iii).
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
For purposes of Section 10.05(b) the address for notices to Moody's shall be
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Pass-Through Monitoring, or such other address as Moody's
may hereafter furnish to the Depositor, each Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument creating a
first or second lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Note.
Mortgage File: The Mortgage documents listed in Section 2.01(b)
hereof pertaining to a particular Initial Mortgage Loan or Subsequent Mortgage
Loan and any additional documents delivered to the Trustee to be added to the
Mortgage File pursuant to this Agreement.
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 Schedule: The Mortgage Loan Schedule which will list
the 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:
(i) the Mortgage Loan identifying number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property including the
state and zip code;
(iv) a code indicating the type of Mortgaged Property and the
occupancy status.
(v) 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;
(vi) the Combined Loan-to-Value Ratio at origination;
(vii) the Mortgage Rate as of the Cut-off Date;
21
(viii)the stated maturity date;
(ix) the amount of the Scheduled Payment as of the Cut-off Date;
(x) the original principal amount of the Mortgage Loan;
(xi) 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;
(xii) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase, rate and term refinance, equity take-out refinance);
(xiii)the Net Mortgage Rate as of the Cut-off Date;
(xiv) the Originator of the related Mortgage Loan;
(xv) the Servicing Fee Rate;
(xvi) the related sub-servicer;
(xvii)a code indicating whether a Mortgage Loan is subject to a
Prepayment Penalty;
(xviiithe amount of the Prepayment Penalty with respect to each
Mortgage Loan and a code identifying whether such Prepayment Penalty is
related to a Curtailment or Payoff;
(xix) whether such Mortgage Loan is a Balloon Loan; and
(xx) whether such Mortgage Loan is a Wilshire Serviced Loan or an
Ocwen Serviced Loan.
With respect to the Mortgage Loans in the aggregate, the Mortgage
Loan Schedule shall set forth the following information, as of the Cut-off Date:
(i) the number of Mortgage Loans; and
(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.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
22
Mortgage Rate: The annual fixed rate of interest borne by a Mortgage
Note.
Mortgaged Property: The underlying real property securing a Mortgage
Loan.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Excess Spread: With respect to any Distribution Date and Loan, 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, multiplied by the weighted average Net Mortgage Rate of
such Mortgage Loans over (y) the Interest Remittance Amount for such
Distribution Date, and the denominator of which is an amount equal to the
aggregate Stated Principal Balance for such Distribution Date of the Mortgage
Loans, multiplied by the actual number of days elapsed in the related Interest
Accrual Period divided by 360.
Net Funds Cap: As to any Distribution Date, will be a per annum rate
equal to (a) a fraction, expressed as a percentage, (a) the numerator of which
is (1) the amount of interest accrued on the Mortgage Loans for such date, minus
(2) the sum of (i) the Expense Fee and (ii) any FSA Premium, and (b) the
denominator of which is the product of (i) the Aggregate Collateral Balance
immediately preceding such Distribution Date (or as of the Cut-off Date in the
case of the first Distribution Date), multiplied by (ii)(x) in the case of the
Class A-1, Class A-R and Class P Certificates, 1/12 and (y) in the case of the
Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class B-1A, and Class B-1B
Certificates, the actual number of days in the related Interest Accrual Period
divided by 360. For federal income tax purposes, however, as to any Distribution
Date will be the equivalent of the foregoing, expressed as a per annum rate
equal to the weighted average of the Uncertificated Pass-Through Rates on the
REMIC 1 Regular Interests multiplied by (x) in the case of the Class A-1, Class
A-R and Class P Certificates, 1/12 and (y) in the case of the Class X-0, Xxxxx
X-0, Class M-1, Class M-2, Class B-1A and Class B-1B Certificates, the actual
number of days in the related Interest Accrual Period divided by 360.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the related Expense Fee Rate.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls during
the Prepayment Period exceeds the Compensating Interest Payment for such
Distribution Date.
Net Recovery: Any proceeds received by a Servicer on a delinquent or
Charged Off Loan (prior to the Release Date), net of any Servicing Fee and
related expenses.
Nonrecoverable Advance: Any portion of an Advance or Servicing
Advance previously made or proposed to be made by the applicable Servicer that,
in the good faith judgment of the applicable Servicer, will not be ultimately
recoverable by the Servicer from the related Mortgagor, related Liquidation
Proceeds or otherwise.
Notional Amount: The Class X-1 Notional Amount.
23
Notional Amount Certificates: As specified in the Preliminary
Statement.
Ocwen: Ocwen Federal Bank FSB, a federally chartered savings bank.
Ocwen Serviced Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President or the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Servicer or the Depositor,
and delivered to the Depositor or the Trustee, as the case may be, as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or a Servicer, including in-house counsel, reasonably
acceptable to the Trustee; provided, however, that with respect to the
interpretation or application of the REMIC Provisions, such counsel must (i) in
fact be independent of the Depositor and any Servicer, (ii) not have any
material direct financial interest in the Depositor or the Servicer or in any
affiliate of either, and (iii) not be connected with the Depositor or the
Servicer as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Optional Termination: The termination of the trust created hereunder
in connection with the purchase of the Mortgage Loans pursuant to Section 9.01.
Optional Termination Date: The first date on which the Optional
Termination may be exercised.
Optional Termination Holder: The Person who may terminate the trust
pursuant to Section 9.01, which shall be the Majority in Interest Class X-1
Certificateholder; provided however that if the Majority in Interest Class X-1
Certificateholder is the Seller or Credit Suisse First Boston Corporation, or an
Affiliate of the Seller or Credit Suisse First Boston Corporation, then the
Optional Termination Holder shall not terminate the trust pursuant to Section
9.01.
OTS: The Office of Thrift Supervision.
Outsourcer: As defined in Section 3.02.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except: (i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and (ii) Certificates in exchange for
which or in lieu of which other Certificates have been executed and delivered by
the Trustee pursuant to this Agreement.
24
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Payoff prior to such Due Date and which did not become a Liquidated Mortgage
Loan or Charged Off Loan prior to such Due Date.
Overcollateralization Amount: For any Distribution Date, an amount
equal to the amount, if any, by which (x) the Aggregate Loan Balance for such
Distribution Date exceeds (y) the aggregate Class Principal Balance of the
Certificates after giving effect to payments on such Distribution Date.
Overcollateralization Release Amount: For any Distribution Date, an
amount equal to the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the amount, if any, by which (1) the
Overcollateralization Amount for such date, calculated for this purpose on the
basis of the assumption that 100% of the aggregate of the Principal Remittance
Amount for such date is applied on such date in reduction of the aggregate of
the Class Principal Balances of the Certificates, exceeds (2) the Targeted
Overcollateralization Amount for such date.
Overfunded Interest Amount: With respect to any Subsequent Transfer
Date and the Subsequent Mortgage Loans, the excess of (A) the amount on deposit
in the Capitalized Interest Account on such date over (B) the excess of (i) the
amount of interest accruing at (x) the sum of (a) the assumed weighted average
Pass-Through Rates of the Senior Certificates and (b) 2.331% per annum
multiplied by (y) the Pre-Funding Amount outstanding at the end of the related
Due Period for the total number of days remaining through the end of the
Interest Accrual Periods ending May 24, 2002, June 24, 2002 and July 24, 2002
over (ii) one month of investment earnings on the amount on deposit in the
Capitalized Interest Account on such date at an annual rate of 2.5%. The assumed
weighted average Pass-Through Rate of the Senior Certificates will be calculated
assuming LIBOR is 2.1% for any Subsequent Transfer Date for the Subsequent
Mortgage Loans prior to the June 2002 Distribution Date and 2.35% for any such
Subsequent Transfer Date prior to the July 2002 Distribution Date.
Ownership Interest: As to any Residual Certificate, any ownership or
security interest in such Certificate including any interest in such Certificate
as the Holder thereof and any other interest therein, whether direct or
indirect, legal or beneficial.
Pass-Through Rate: With respect to the Class A-1, Class A-2, Class
A-3, Class A-R, Class P, Class M-1, Class M-2, Class B-1A and Class B-1B
Certificates, the Class A-1 Pass-Through Rate, Class A-2 Pass-Through Rate,
Class A-3 Pass-Through Rate, Class A-R Pass-Through Rate, Class P Pass-Through
Rate, Class M-1 Pass-Through Rate, Class M-2 Pass-Through Rate, Class B- 1A
Pass-Through Rate and Class B-1B Pass-Through Rate.
With respect to the Class X-1 Certificates and any Distribution
Date, a per annum rate equal to the percentage equivalent of a fraction, the
numerator of which is the sum of the amounts calculated pursuant to clauses (A)
through (R) below, and the denominator of which is the aggregate of the
Uncertificated Principal Balances of REMIC 1 Regular Interest LT-1, REMIC 1
Regular Interest LT-1X, REMIC 1 Regular Interest LT-2, REMIC 1 Regular Interest
LT-2X, REMIC 1 Regular Interest LT-3, REMIC 1 Regular Interest LT-3X, REMIC 1
Regular Interest LT-4, REMIC 1 Regular Interest LT-4X, REMIC 1 Regular Interest
LT-5, REMIC 1 Regular Interest LT-5X,
25
REMIC 1 Regular Interest LT-6, REMIC 1 Regular Interest LT-6X, REMIC 1 Regular
Interest LT-7, REMIC 1 Regular Interest LT-7X, REMIC 1 Regular Interest LT-8,
REMIC 1 Regular Interest LT- 8X, REMIC 1 Regular Interest LT-9 and REMIC 1
Regular Interest LT-9X. For purposes of calculating the Pass-Through Rate for
the Class X-1 Certificates, the numerator is equal to the sum of the following
components:
(A) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-1 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-1;
(B) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-1X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-1X;
(C) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-2 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-2;
(D) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-2X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-2X;
(E) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-3 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-3;
(F) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-3X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-3X;
26
(G) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-4 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-4;
(H) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-4X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-4X;
(I) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-5 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-5;
(J) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-5X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-5X;
(K) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-6 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-6;
(L) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-6X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-6X;
(M) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-7 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-7.
(N) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-7X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-7X.
(O) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-8 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-8;
(P) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-8X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of REMIC
1 Regular Interest LT-8X;
(Q) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-9 minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of
REMIC1Regular Interest LT-9; and
27
(R) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-9X minus the Marker Rate, applied to an
amount equal to the Uncertificated Principal Balance of
REMIC1Regular Interest LT-9X.
Payahead: Any Scheduled Payment intended by the related Mortgagor to
be applied in a Due Period subsequent to the Due 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, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being 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.
Permitted Transferee: Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person that is not a
United States Person, and (vi) a Person designated as a non-Permitted Transferee
by the Depositor based upon an Opinion of Counsel that the Transfer of an
Ownership Interest in a Residual Certificate to such Person may cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of Xxxxxxx Mac, a majority of its board of directors is not
selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pre-Funding Account: The separate Eligible Account created and
maintained by the Trustee with respect to the Mortgage Loans pursuant to Section
3.05(f) in the name of the Trustee for the benefit of the Certificateholders and
designated "JPMorgan Chase Bank, in trust for registered holders of CSFB
Mortgage Pass-Through Certificates, Series 2002-S12." Funds in the Pre-Funding
Account shall be held in trust for the Certificateholders for the uses and
purposes set
28
forth in this Agreement and shall not be a part of any REMIC created hereunder;
provided, however, that any investment income earned from Eligible Investments
made with funds in the Pre-Funding Account shall be for the account of the
Depositor.
Pre-Funding Amount: The amount deposited in the Pre-Funding Account
on the Closing Date, which shall equal $23,942,743.
Pre-Funding Period: With respect to the Senior Certificates, the
period from the Closing Date until the earliest of (i) the date on which the
amount on deposit in the related Pre-Funding Account is reduced to zero, (ii)
the date on which an Event of Default occurs or (iii) July 24, 2002.
Premium Percentage: With respect to the Insured Certificates, 0.10%
per annum.
Prepayment Interest Shortfall: As to any Mortgage Loan, Distribution
Date and Principal Prepayment, other than Principal Prepayments in full that
occur during the portion of the Prepayment Period that is in the same calendar
month as the Distribution Date, the difference between (i) one full month's
interest at the applicable Mortgage Rate (giving effect to any applicable Relief
Act Reduction), as reduced by the Expense Fee Rate, on the outstanding principal
balance of such Mortgage Loan immediately prior to such prepayment and (ii) the
amount of interest actually received that accrued during the month immediately
preceding such Distribution Date with respect to such Mortgage Loan in
connection with such Principal Prepayment.
Prepayment Penalty: With respect to any Mortgage Loan, any penalty
required to be paid if the Mortgagor prepays such Mortgage Loan as provided in
the related Mortgage Note or Mortgage.
Prepayment Period: With respect to each Distribution Date and each
Payoff, the related "Prepayment Period" will be the 15th of the month preceding
the month in which the related Distribution Date occurs through the 14th of the
month in which the related Distribution Date occurs. With respect to each
Distribution Date and each Curtailment, the related "Prepayment Period" will be
the calendar month preceding the month in which the related Distribution Date
occurs.
Principal Payment Amount: For any Distribution Date, an amount equal
to the Principal Remittance Amount for such date minus the Overcollateralization
Release Amount, if any, for such date.
Principal Remittance Amount: For any Distribution Date, an amount
equal to the sum of (1) all principal collected (other than Payaheads) or
advanced in respect of Scheduled Payments on the Mortgage Loans during the
related Due Period (less unreimbursed Advances, Servicing Advances and other
amounts due to each Servicer and the Trustee with respect to the Mortgage Loans,
to the extent allocable to principal) and the principal portion of Payaheads
previously received and intended for application in the related Due Period, (2)
all Principal Prepayments on the Mortgage Loans received during the related
Prepayment Period, (3) the outstanding principal balance of each Mortgage Loan
that was repurchased by the Seller, the Optional Termination Holder or the
Majority in Interest Class X-2 Certificateholder during the calendar month
immediately preceding
29
such Distribution Date, (4) the portion of any Substitution Adjustment Amount
paid with respect to any Deleted Mortgage Loans during the calendar month
immediately preceding such Distribution Date allocable to principal, (5) all
Liquidation Proceeds, Net Recoveries and any Insurance Proceeds and other
recoveries (net of unreimbursed Advances, Servicing Advances and other expenses,
to the extent allocable to principal) collected with respect to the Mortgage
Loans during the prior calendar month, to the extent allocable to principal and
(6) with respect to the Distribution Date in July 2002, the amount remaining in
the Pre-Funding Account at the end of the Pre-Funding Period.
Principal Prepayment: Any payment of principal on a Mortgage Loan
which constitutes a Payoff or Curtailment.
Prospectus Supplement: The Prospectus Supplement dated April 22,
2002 relating to the Offered Certificates.
PUD: Planned Unit Development.
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
Xxxxxx Xxx- or Xxxxxxx Mac-approved mortgage insurer or having a claims paying
ability rating of at least "AA" or equivalent rating by at least two nationally
recognized statistical rating organizations. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by
the 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 M (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 Combined 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; and (v) comply with each representation and
warranty set forth in Section 2.03(b).
Rating Agency: S&P and Xxxxx'x. If either such organization or a
successor is no longer in existence, "Rating Agency" shall be such nationally
recognized statistical rating organization, or other comparable Person, as is
designated by the Depositor, notice of which designation shall be given to the
Trustee and the Servicers. References herein to a given rating or rating
category of a Rating Agency shall mean such rating category without giving
effect to any modifiers.
30
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 each Liquidated Mortgage Loan, an
amount (not less than zero or greater 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 Net Mortgage Rate from the related Due
Date as to which interest was last paid or advanced (and not reimbursed) to the
related 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
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. Any Charged Off
Loan will give rise to a Realized Loss at the time it is charged off, as
described in Section 3.11(a)(iii) hereof. In addition, to the extent any amount
is paid to Ocwen pursuant to Section 3.11(a)(iv)(A) hereof, such amount shall be
treated as a Realized Loss.
Record Date: With respect to the Certificates (other than the Class
A-2, Class A-3, Class M-1, Class M-2, Class B-1A and B-1B Certificates) and any
Distribution Date, the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs. With
respect to the Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class B- 1A and B-1B
Certificates which are Book-Entry Certificates and any Distribution Date, the
close of business on the Business Day preceding such Distribution Date.
Reference Bank Rate: With respect to any Interest Accrual Period, 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,
England time, on the second LIBOR Business Day prior to the first day of such
Interest Accrual Period to prime banks in the London interbank market for a
period of one month in amounts approximately equal to the aggregate Class
Principal Balance of the LIBOR Certificates; provided that at least two such
Reference Banks provide such rate. If fewer than two offered rates appear, the
Reference Bank Rate will be the arithmetic mean of the rates quoted by one or
more major banks in New York City, selected by the Trustee, as of 11:00 a.m.,
New York 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 LIBOR applicable to the preceding
Distribution Date; provided however, that if, under the priorities indicated
above, LIBOR for a Distribution Date would be based on LIBOR for the previous
Payment Date for the third consecutive Distribution Date, the Trustee shall
select an alternative comparable index over which the Trustee has no control,
used for determining one-month Eurodollar lending rates that is calculated and
published or otherwise made available by an independent party.
Reference Banks: Barclays Bank PLC, National Westminster Bank and
Abbey National PLC.
Regular Certificates: As specified in the Preliminary Statement.
31
Released Loan: Any Charged Off Loan that is released by Wilshire to
the Class X-2 Certificateholders pursuant to Section 3.11(a), generally on the
date that is six months after the date on which Wilshire begins using
non-foreclosure collection procedures on such Charged Off Loans. Any Released
Loan will no longer be an asset of any REMIC or the Trust Fund.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended or any similar state law or regulation.
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
or principal collectible thereon for the most recently ended calendar month as a
result of the application of the Relief Act or similar state law or regulation,
the amount, if any, by which (i) interest and/or principal collectible on such
Mortgage Loan for the most recently ended calendar month is less than (ii)
interest and/or principal 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.
REMIC 1: The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to which a REMIC election is to be made consisting of: (i) such Mortgage Loans
as from time to time are subject to this Agreement (other than any Prepayment
Premiums), together with the Mortgage Files relating thereto, and together with
all collections thereon and proceeds thereof, (ii) any REO Property, together
with all collections thereon and proceeds thereof, (iii) the Trustee's rights
with respect to the Mortgage Loans under all insurance policies, including the
Primary Insurance Policy, required to be maintained pursuant to this Agreement
and any proceeds thereof and, (iv) the Collection Account and the Certificate
Account (subject to the last sentence of this definition) and such assets that
are deposited therein from time to time and any investments thereof.
Notwithstanding the foregoing, however, a REMIC election will not be made with
respect to the Reserve Fund, the Pre-Funding Account or the Capitalized Interest
Account.
REMIC 1 Net WAC Rate: With respect to any Distribution Date, a per
annum rate equal to the weighted average of the related REMIC 1 Pass-Through
Rates on the REMIC 1 Regular Interests, weighted on the basis of the respective
Uncertificated Principal Balances thereof immediately preceding such
Distribution Date.
REMIC 1 Interest Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Stated Principal Balance of the Mortgage Loans and related REO Properties then
outstanding and (ii) the weighted average of the Uncertificated REMIC 1
Pass-Through Rates for REMIC 1 Regular Interests LT-1 and LT-1X, in each case
minus the Marker Rate, divided by (b) 12.
REMIC 1 Overcollateralization Amount: With respect to any date of
determination, (i) 1% of the aggregate Uncertificated Principal Balances of the
REMIC 1 Regular Interests minus (ii) the aggregate Uncertificated Principal
Balances of REMIC 1 Regular Interests LT-2, LT-2X, LT-
32
3, LT-3X, LT-4, LT-4X, LT-5, LT-5X, LT-6, LT-6X, LT-7, LT-7X, LT-8, LT-8X, LT-R,
LT-RX, LT-P and LT-PX, in each case as of such date of determination.
REMIC 1 Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to the product of (i) the aggregate Stated
Principal Balance of the Mortgage Loans and related REO Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which is two times the
aggregate Uncertificated Principal Balance of REMIC 1 Regular Interests LT-2,
LT- 2X, LT-3, LT-3X, LT-4, LT-4X, LT-5, LT-5X, LT-6, LT-6X, LT-7, LT-7X, LT-8
and LT-8X, and the denominator of which is the aggregate Uncertificated
Principal Balance of REMIC 1 Regular Interests LT-2, LT-2X, LT-3, LT-3X, LT-4,
LT-4X, LT-5, LT-5X, LT-6, LT-6X, LT-7, LT-7X, LT- 8, LT-8X, LT-9 and LT-9X.
REMIC 1 Regular Interest LT-1: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-1 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-1X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-1X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-2: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-2 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-2X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-2X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-3: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-3 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
33
REMIC 1 Regular Interest LT-3X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-3X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-4: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-4 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-4X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-4X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-5: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-5 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-5X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-5X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-6: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-6 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-6X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-6X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal,
34
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
REMIC 1 Regular Interest LT-7: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-7 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-7X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-7X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-8: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-8 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-8X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-8X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-9: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-9 shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-9X: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-9X shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
35
REMIC 1 Regular Interest LT-9 Maximum Interest Deferral Amount: With
respect to any Distribution Date, the excess of (i) Uncertificated Accrued
Interest calculated with the Uncertificated Pass-Through Rate equal to the
weighted average of the Uncertificated Pass-Through Rates for REMIC 1 Regular
Interests LT-9 and LT-9X and an Uncertificated Principal Balance equal to the
excess of (x) the aggregate Uncertificated Principal Balances of REMIC 1 Regular
Interests LT-9 and LT-9X over (y) the REMIC 1 Overcollateralization Amount, in
each case for such Distribution Date, over (ii) the sum of Uncertificated
Accrued Interest on REMIC 1 Regular Interests LT-2, LT-2X, LT-3, LT-3X, LT-4,
LT-4X, LT-5, LT-5X, LT-6, LT-6X, LT-7, LT-7X, LT-8 and LT-8X, with the rates on
REMIC 1 Regular Interests LT-2 and LT-2X subject to a cap and floor equal to the
lesser of (a) with respect to any Interest Accrual Period on or prior to the
Optional Termination Date, 5.682% per annum, and with respect to any Interest
Accrual Period after the Optional Termination Date, 6.182% per annum, and (b)
the REMIC 1 Net WAC Rate for the purpose of this calculation, and with the rates
on REMIC 1 Regular Interests LT-3, LT-3X, LT-4, LT-4X, LT- 5, LT-5X, LT-6,
LT-6X, LT-7, LT-7X, LT-8 and LT-8X subject to a cap and floor equal to the
lesser of (a) LIBOR plus the Certificate Margin relating to the Corresponding
Certificate and (b) the REMIC 1 Net WAC Rate for the purpose of this calculation
for such Distribution Date.
REMIC 1 Regular Interest LT-P: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-P shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-PX: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-PX shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-R: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-R shall accrue interest
at the related Uncertificated REMIC 1 Pass- Through Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC 1 Regular Interest LT-RX: One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT-RX shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
36
REMIC 1 Regular Interests: REMIC 1 Regular Interest LT-1, LT-1X,
LT-2, LT-2X, LT-3, LT-3X, LT-4, LT-4X, LT-5, LT-5X, LT-6, LT-6X, LT-7, LT-7X,
LT-8, LT-8X, LT-R, LT- RX, LT-P and LT-PX.
REMIC 1 Regular Interests: The Regular Certificates.
REMIC 1 Targeted Overcollateralization Amount: 1% of the Targeted
Overcollateralization Amount.
REMIC 2: The segregated pool of assets consisting of all of the
REMIC 1 Regular Interests conveyed in the trust to the Trustee, for the benefit
of the Holders of the Regular Certificates and the Class A-R Certificates (in
respect of the Class R-2 Interest), pursuant to Article II hereunder, and all
amounts deposited therein, with respect to which a separate REMIC election is to
be made.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time.
REMIC Regular Interests: The REMIC 1 Regular Interests and Regular
Certificates.
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.
Repurchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to this Agreement or purchased at the option of
the Optional Termination Holder or the Majority in Interest Holder of the Class
X-2 Certificates pursuant to this Agreement, an amount equal to the sum of (i)
100% of the unpaid principal balance of the Mortgage Loan on the date of such
purchase, (ii) accrued unpaid interest thereon at the applicable Mortgage Rate
from the date through which interest was last paid by the Mortgagor to the Due
Date in the month in which the Repurchase Price is to be distributed to
Certificateholders and (iii) any unreimbursed Servicing Advances.
Request for Release: The Request for Release submitted by a Servicer
to the Trustee, substantially in the form of Exhibit M.
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.
Required 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%, $5,000.
37
Required 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 Collateral Balance
over (ii) the amount of funds on deposit in the 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)
$5,000 over (ii) the amount of funds on deposit in the Reserve Fund prior to
deposits thereto on such Distribution Date.
Reserve Fund: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 4.08 in the name of the Trustee
for the benefit of the Certificateholders and designated "JPMorgan Chase Bank in
trust for registered holders of Credit Suisse First Boston Mortgage Securities
Corp., Mortgage Pass-Through Certificates, Series 2002-S12." Funds in the
Reserve Fund shall be held in trust for the holders of the Class X-0, Xxxxx X-0,
Class M-1, Class M- 2, Class B-1A and Class B-1B Certificates for the uses and
purposes set forth in this Agreement. The Reserve Fund will be an "outside
reserve fund" within the meaning of Treasury regulation Section 1.860G-2(h)
established and maintained pursuant to Section 4.08. The Reserve Fund is not an
asset of any REMIC. Ownership of the Reserve Fund is evidenced by the Class X-1
Certificates.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, any Assistant Secretary, any Trust
Officer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also to
whom, with respect to a particular matter, such matter is referred because of
such officer's knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Agreement.
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, respectively) immediately preceding months.
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
Senior Certificates: Any of the Class A-1, Class A-2 and Class A-3
Certificates.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc. For purposes of Section 10.05(b) the address for notices to S&P shall be
Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage Surveillance Monitoring, or such other address as S&P may hereafter
furnish to the Depositor, the Servicers and the Trustee.
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, as reduced by any Relief Act
Reductions.
Second Mortgage Loan: A Mortgage Loan that is secured by a second
lien on the Mortgaged Property securing the related Mortgage Note.
38
Securities Act: The Securities Act of 1933, as amended.
Seller: DLJ Mortgage Capital Inc.
Senior Certificates: As specified in the Preliminary Statement.
Senior Enhancement Percentage: For any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the sum of the
aggregate Class Principal Balance of the Class M-1, Class M-2, Class B-1A and
Class B-1B 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 is in effect), and the denominator of which is the Aggregate Loan Balance
for such Distribution Date.
Senior Principal Payment Amount: For any Distribution Date on or
after the Stepdown Date and as long as a Trigger Event is not in effect with
respect to such Distribution Date, will be the amount, if any, by which (x) the
Class Principal Balance of the Class A-1, Class A-2, Class A-3, Class P and
Class A-R Certificates immediately prior to such Distribution Date exceeds (y)
the lesser of (A) the product of (i) 52.07% and (ii) the Aggregate Collateral
Balance for such Distribution Date and (B) the amount, if any, by which (i) the
Aggregate Collateral Balance for such Distribution Date exceeds (ii) 0.50% of
the Aggregate Collateral Balance as of the Cut-off Date.
Servicer: Wilshire or Ocwen, or their successors in interest, as
applicable, or any successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicer Data Remittance Date: With respect to each Distribution
Date, the second Business Day immediately following the 15th day of the month of
such Distribution Date.
Servicer Remittance Date: With respect to each Distribution Date,
the Business Day immediately preceding such Distribution Date
Servicing Advance: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the 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) any expenses
reimbursable to the Servicer pursuant to Section 3.11 and any enforcement or
judicial proceedings, including foreclosures, and including any expenses
incurred in relation to any such proceedings that result from the Mortgage Loan
being registered on the MERS System; (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 the
Servicer in connection with obtaining an environmental inspection or review
pursuant to the second paragraph of Section 3.11(a); (v) compliance with the
obligations under Section 3.09 and (vi) the cost of obtaining any broker's price
opinion in accordance with Section 3.11 hereof.
39
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. With respect to any Ocwen Serviced Loan for which Ocwen is paid pursuant
to Section 3.11(a)(ii)(B) hereof, such amount shall be paid to Ocwen in lieu of
the Servicing Fee described in the previous sentence with respect to such
Mortgage Loan.
Servicing Fee Rate: As to each Mortgage Loan, 0.50% per annum.
Servicing Officer: With respect to each Servicer, any officer of
that Servicer involved in, or responsible for, the administration and servicing
of the related Mortgage Loans whose name and specimen signature appear on a list
of servicing officers furnished to the Trustee by such Servicer on the Closing
Date pursuant to this Agreement, as such list may from time to time be amended.
Startup Day: April 25, 2002.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as specified
in the amortization schedule at the time relating thereto (before any adjustment
to such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous Curtailments and Liquidation
Proceeds allocable to principal (other than with respect to any Liquidated
Mortgage Loan) and to the payment of principal due on such Due Date and
irrespective of any delinquency in payment by the related Mortgagor; provided,
however, for purposes of calculating the Servicing Fee and the Trustee Fee, the
Stated Principal Balance of any REO will be the unpaid principal balance
immediately prior to foreclosure.
Stepdown Date: The date occurring on the later of (x) the
Distribution Date in May 2005 and (y) the first Distribution Date on which the
Senior Enhancement Percentage (calculated for this purpose after giving effect
to payments or other recoveries in respect of the Mortgage Loans during the
related Due Period but before giving effect to payments on the Certificates on
such Distribution Date) is greater than or equal to 47.93%.
Subordinate Certificates: As specified in the Preliminary Statement.
Subsequent Mortgage Loan: Any Mortgage Loan other than an Initial
Mortgage Loan conveyed to the Trust Fund pursuant to Section 2.01 hereof and to
a Subsequent Transfer Agreement, which Mortgage Loan shall be listed on the
revised Mortgage Loan Schedule delivered pursuant to this Agreement and on
Schedule A to such Subsequent Transfer Agreement. When used with respect to a
single Subsequent Transfer Date, Subsequent Mortgage Loan shall mean a
Subsequent Mortgage Loan conveyed to the Trust on that Subsequent Transfer Date.
Subsequent Mortgage Loan Interest: Any amount constituting an
Interest Remittance Amount (other than an amount withdrawn from the Capitalized
Interest Account pursuant to clause (5) of the definition of "Interest
Remittance Amount") received or advanced with respect to a Subsequent Mortgage
Loan during the Due Periods relating to the May 2002, June 2002 or July 2002
40
Distribution Dates, but only to the extent of the excess of such amount over the
amount of interest accruing on such Subsequent Mortgage Loan during the related
period at a per annum rate equal to 4.66%, 4.41% and 4.69%, respectively. The
Subsequent Mortgage Loan Interest shall not be an asset of any REMIC.
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit N hereto, executed and delivered by the
related Servicer, the Depositor, the Seller and the Trustee as provided in
Section 2.01 hereof.
Subsequent Transfer Date: For any Subsequent Transfer Agreement, the
date the related Subsequent Mortgage Loans are transferred to the Trust Fund
pursuant to the related Subsequent Transfer Agreement.
Subservicer: Any Subservicer which is subservicing the Mortgage
Loans pursuant to a Subservicing Agreement. Any subservicer shall meet the
qualifications set forth in Section 3.02.
Subservicing Agreement: An agreement between a Servicer and a
Subservicer for the servicing of the Mortgage Loans.
Substitution Adjustment Amount: As defined in Section 2.03.
Targeted Overcollateralization Amount: For any Distribution Date
prior to the Stepdown Date, 3.75% of the Aggregate Collateral Balance as of the
Cut-off Date; with respect to any Distribution Date on or after the Stepdown
Date and with respect to which a Trigger Event is not in effect, the greater of
(a) 7.50% of the Aggregate Collateral Balance for such Distribution Date, or (b)
0.50% of the Aggregate Collateral Balance as of the Cut-off Date; with respect
to any Distribution Date on or after the Stepdown Date with respect to which a
Trigger Event is in effect and is continuing, the Targeted Overcollateralization
Amount for the Distribution Date immediately preceding such Distribution Date.
Upon (x) written direction by the Majority in Interest Holder of the Class X-1
Certificates and (y) the issuance by an affiliate of the Depositor of a credit
enhancement contract in favor of REMIC 1 which is satisfactory to the Rating
Agencies, the Targeted Overcollateralization Amount shall be reduced to the
level approved by the Rating Agencies as a result of such credit enhancement
contract.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulationss.1.860F-4(d) and temporary
Treasury regulationss. 301.6231(a)(7)-1T. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificates, with a
Denomination of $0.05. Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Trigger Event: A Trigger Event will be in effect for any
Distribution Date if (a) the Rolling Three Month Delinquency Rate as of the last
day of the related Due Period equals or exceeds 15.50% of the Senior Enhancement
Percentage for such Distribution Date or (ii) a Cumulative Loss
41
Event is occurring. The Trigger Event may be amended by the parties hereto in
the future with the consent of the Rating Agencies.
Trust Fund: Collectively, the assets of REMIC 1, REMIC 2, the
Pre-Funding Account, the Capitalized Interest Account, the Reserve Fund and the
Subsequent Mortgage Loan Interest.
Trustee: JPMorgan Chase Bank and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the Trustee Fee Rate on the Stated
Principal Balance of such Mortgage Loan as of the Due Date in the month of such
Distribution Date (prior to giving effect to any Scheduled Payments due on such
Mortgage Loan on such Due Date).
Trustee Fee Rate: With respect to any Distribution Date, 0.0055% per
annum.
Uncertificated Accrued Interest: With respect to each REMIC Regular
Interest on each Distribution Date, an amount equal to one month's interest at
the related Uncertificated Pass- Through Rate on the Uncertificated Principal
Balance of such REMIC Regular Interest. In each case, Uncertificated Accrued
Interest will be reduced by any Net Prepayment Interest Shortfalls and Relief
Act Reductions (allocated to such REMIC Regular Interests based on the
priorities set forth in Section 1.03).
Uncertificated Pass-Through Rate: The Uncertificated REMIC 1
Pass-Through Rate.
Uncertificated Principal Balance: With respect to each REMIC Regular
Interest, the amount of such REMIC Regular Interest outstanding as of any date
of determination. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of each REMIC
Regular Interest shall be reduced by all distributions of principal made on such
REMIC Regular Interest on such Distribution Date pursuant to Section 4.07 and,
if and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 4.05(b), and the
Uncertificated Principal Balances of REMIC 1 Regular Interest LT-9 and LT-9X
shall be increased, pro rata, by interest deferrals as provided in Section 4.07.
The Uncertificated Principal Balance of each REMIC Regular Interest that has an
Uncertificated Principal Balance shall never be less than zero.
Uncertificated REMIC 1 Pass-Through Rate: With respect to each REMIC
1 Regular Interest (other than REMIC 1 Regular Interests LT-1X, LT-2X, LT-3X,
LT-4X, LT-5X, LT-6X, LT- 7X, LT-8X, LT-9X, LT-PX and LT-RX) and the Interest
Accrual Periods in May 2002, June 2002 and July 2002, a per annum rate equal to
the Initial Mortgage Loan Net WAC Rate; with respect to REMIC 1 Regular
Interests LT-1X, LT-2X, LT-3X, LT-4X, LT-5X, LT-6X, LT-7X, LT-8X, LT-9X, LT-PX
and LT-RX and the Interest Accrual Periods in May 2002, June 2002 and July 2002,
a per annum rate equal to 4.66%, 4.41% and 4.69%, respectively; and with respect
to each REMIC 1
42
Regular Interest and each Interest Accrual Period thereafter, the weighted
average of the Net Mortgage Rates on the Mortgage Loans.
United States Person: A citizen or resident of the United States, a
corporation or a partnership (including an entity treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States or any State thereof or the District
of Columbia (except, in the case of a partnership, to the extent provided in
regulations) provided that, for purposes solely of the restrictions on the
transfer of Class A-R Certificates, no partnership or other entity treated as a
partnership for United States federal income tax purposes shall be treated as a
United States Person unless all persons that own an interest in such partnership
either directly or through any entity that is not a corporation for United
States federal income tax purposes are required to be United States Persons or
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such United States Persons have the authority to control all substantial
decisions of the trust. To the extent prescribed in regulations by the Secretary
of the Treasury, which have not yet been issued, a trust which was in existence
on August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue to be
treated as a United States Person notwithstanding the previous sentence.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
98% of all Voting Rights shall be allocated among the Class A-1, Class X-0,
Xxxxx X-0, Class M-1, Class M-2, Class B-1A and Class B-1B Certificates. The
portion of such 98% Voting Rights allocated to the Class A-1, Class X-0, Xxxxx
X-0, Class M-1, Class M-2, Class B-1A and Class B-1B 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 such Classes then outstanding. The Class P
Certificates and Class X-1 Certificates shall each be allocated 1% of the Voting
Rights. Voting Rights shall be allocated among the Certificates within each such
Class (other than the Class P Certificates and Class X-1 Certificates, which
each have only one certificate) in accordance with their respective Percentage
Interests. The Class X-2 and Class A-R Certificates shall have no Voting Rights.
Wilshire: Wilshire Credit Corporation.
Wilshire Serviced Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule.
SECTION 1.02 Interest Calculations.
The calculation of the Trustee Fee, the Servicing Fee, the Credit
Risk Manager Fee and interest on the Class A-1 and Class X-1 Certificates and on
the related Uncertificated Interests shall be made on the basis of a 360-day
year consisting of twelve 30-day months. The calculation of interest on the
Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class B-1A and Class B-1B
Certificates and the related Uncertificated Interests shall be made on the basis
of a 360-day year and
43
the actual number of days elapsed in the related Interest Accrual Period. All
dollar amounts calculated hereunder shall be rounded to the nearest xxxxx with
one-half of one xxxxx being rounded down.
SECTION 1.03 Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC 1 Regular Interests for any Distribution Date, the
aggregate amount of any Prepayment Interest Shortfalls (net of any Compensating
Interest Payment) and any Relief Act Reductions incurred in respect of the
Mortgage Loans for any Distribution Date shall be allocated first, up to an
aggregate amount equal to the REMIC 1 Interest Loss Allocation Amount, 98% to
Uncertificated Accrued Interest payable to REMIC 1 Regular Interests LT-1 and
LT-X, pro rata, and 2% to Uncertificated Accrued Interest payable to and REMIC 1
Regular Interests LT-9 and LT-9X, pro rata, and thereafter any remaining
Prepayment Interest Shortfalls (to the extent not covered by Compensating
Interest) relating to the Mortgage Loans for any Distribution Date shall be
allocated among REMIC 1 Regular Interests LT-1, LT-1X, LT-2, LT-2X, LT-3, LT-3X,
LT-4, LT-4X, LT-5, LT-5X, LT-6, LT-6X, LT-7, LT-7X, LT-8, LT-8X, LT-9, LT-9X,
LT-R, LT-RX, LT-P and LT-PX, pro rata, based on, and to the extent of,
Uncertificated Accrued Interest, as calculated without application of this
sentence; provided, however, that with respect to the first three Distribution
Dates, such amounts relating to the Initial Mortgage Loans shall be allocated to
the REMIC 1 Regular Interests not bearing a designation ending in "X," and such
amounts relating to the Subsequent Mortgage Loans shall be allocated to the
REMIC 1 Regular Interests bearing a designation ending in "X," in each case in
the order and priority set forth above.
44
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee in trust for the benefit of the Certificateholders, without recourse,
all (i) the right, title and interest of the Depositor (which does not include
servicing rights) in and to each Initial Mortgage Loan, including all interest
and principal received or receivable on or with respect to such Initial Mortgage
Loans after the Cut-off Date and all interest and principal payments on the
Initial Mortgage Loans received prior to the Cut-off Date in respect of
installments of interest and principal due thereafter, but not including
payments of principal and interest due and payable on the Mortgage Loans on or
before the Cut-off Date (other than the rights of the Servicers to service the
Initial Mortgage Loans in accordance with this Agreement), (ii) the Depositor's
rights under the Assignment Agreement, (iii) any such amounts as may be
deposited into and held by the Trustee in the Pre-Funding Account and the
Capitalized Interest Account and (iv) all proceeds of any of the foregoing. In
addition, on or prior to the Closing Date, the Depositor shall cause FSA to
deliver the FSA Policy to the Trustee.
(b) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to the
Trustee or its designated agent, the related Custodian, for the benefit of the
Certificateholders, the documents and instruments with respect to each Mortgage
Loan as assigned:
(i) the original Mortgage Note of the Mortgagor in the name of the
Trustee or endorsed "Pay to the order of ________________ without
recourse" and signed in the name of the last named endorsee by an
authorized officer, together with all intervening endorsements showing a
complete chain of endorsements from the originator of the related Mortgage
Loan to the last endorsee or with respect to any Lost Mortgage Note (as
such term is defined in the Pooling and Servicing Agreement), a lost note
affidavit stating that the original Mortgage Note was lost or destroyed,
together with a copy of such Mortgage Note;
(ii) the original Mortgage bearing evidence that such instruments
have been recorded in the appropriate jurisdiction where the Mortgaged
Property is located as determined by DLJMC (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 original(s) 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;
45
(iii) the original Assignment of Mortgage, in blank, which
assignment appears to be in form and substance acceptable for recording
and, in the event that the related Seller acquired the Mortgage Loan in a
merger, the assignment must be by "[Seller], successor by merger to [name
of predecessor]", and in the event that the Mortgage Loan was acquired or
originated by the related Seller while doing business under another name,
the assignment must be by "[Seller], formerly known as [previous name]";
(iv) the originals of all intervening Assignments of Mortgage not
included in (iii) above showing a complete chain of assignment from the
originator of such Mortgage Loan to the Person assigning the Mortgage to
the Trustee, including any warehousing assignment, with evidence of
recording on each such Assignment of Mortgage (or, in lieu of the original
of any such intervening assignment, a duplicate or conformed copy of such
intervening assignment together with a certificate of receipt from the
related 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 original(s) 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;
(v) an original of any related security agreement (if such item is a
document separate from the Mortgage) and the originals of any intervening
assignments thereof showing a complete chain of assignment from the
originator of the related Mortgage Loan to the last assignee;
(vi) an original assignment of any related security agreement (if
such item is a document separate from the Mortgage) executed by the last
assignee in blank;
(vii) the originals of any assumption, modification, extension or
guaranty agreement with evidence of recording thereon, if applicable (or,
in lieu of the original of any such agreement, a duplicate or conformed
copy of such agreement together with a certificate of receipt from the
related Seller or the settlement agent who handled the closing of the
Mortgage Loan, certifying that such copy(ies) represent true and correct
copy(ies) of the original(s) 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;
(viii)if the Mortgage Note or Mortgage or any other document or
instrument relating to the Mortgage Loan has been signed by a person on
behalf of the Mortgagor, the original power of attorney or other
instrument that authorized and empowered such person to sign bearing
evidence that such instrument has been recorded, if so required, in the
appropriate jurisdiction where the Mortgaged Property is located as
determined by DLJMC (or, in lieu thereof, a duplicate or conformed copy of
such instrument, together with a certificate of receipt from the related
Seller or the settlement agent who handled the closing of the Mortgage
Loan, certifying that such copy(ies) represent true and complete
copy(ies)of the original(s) and that such original(s) have been or are
currently submitted to be recorded
46
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; and
(ix) in the case of the First Mortgage Loans, the original mortgage
title insurance policy, or if such mortgage title insurance policy has not
yet been issued, an original or copy of a marked-up written commitment or
a pro forma title insurance policy marked as binding and countersigned by
the title insurance company or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter.
In the event the Seller delivers to the Trustee certified copies of
any document or instrument set forth in 2.01(b) because of a delay caused by the
public recording office in returning any recorded document, the Seller shall
deliver to the Trustee, within 60 days of the Closing Date, an Officer's
Certificate which shall (i) identify the recorded document, (ii) state that the
recorded document has not been delivered to the Trustee due solely to a delay
caused by the public recording office, and (iii) state the amount of time
generally required by the applicable recording office to record and return a
document submitted for recordation.
In the event that in connection with any Mortgage Loan the Depositor
cannot deliver (a) the original recorded Mortgage, (b) all interim recorded
assignments or (c) the lender's title policy (together with all riders thereto)
satisfying the requirements set forth above, concurrently with the execution and
delivery hereof because such document or documents have not been returned from
the applicable public recording office in the case of clause (a) or (b) above,
or because the title policy has not been delivered to the Seller or the
Depositor by the applicable title insurer in the case of clause (c) above, the
Depositor shall promptly deliver to the Trustee, in the case of clause (a) or
(b) above, such original Mortgage or such interim assignment, as the case may
be, with evidence of recording indicated thereon upon receipt thereof from the
public recording office, or a copy thereof, certified, if appropriate, by the
relevant recording office.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, the Trustee
shall (at the Seller's expense) (i) affix the Trustee's name to each Assignment
of Mortgage, as the assignee thereof, (ii) cause such assignment to be in proper
form for recording in the appropriate public office for real property records
within thirty (30) days after receipt thereof and (iii) cause to be delivered
for recording in the appropriate public office for real property records the
assignments of the Mortgages to the Trustee, except that, with respect to any
assignment of a Mortgage as to which the Trustee has not received the
information required to prepare such assignment in recordable form, the
Trustee's obligation to do so and to deliver the same for such recording shall
be as soon as practicable after receipt of such information and in any event
within thirty (30) days after the receipt thereof, and the Trustee need not
cause to be recorded (a) any assignment referred to in clause (iii) above which
relates to a Mortgage Loan in any jurisdiction under the laws of which, as
evidenced by an Opinion of Counsel delivered to the Trustee (at the Depositor's
expense, provided such expense has been previously approved by the Depositor in
writing) within 20 days of the Closing Date, 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 or (b) if MERS is
identified on the
47
Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee
of record solely as nominee for the Seller and its successors and assigns.
In connection with the assignment of any Mortgage Loan registered on
the MERS(R) System, the Depositor further agrees that it will cause, at the
Depositor's own expense, on or prior to the Closing Date, the MERS(R) System to
indicate that such Mortgage Loans have been assigned by the Depositor to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
(a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE
FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b) the code
"[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field" which
identifies the series of the Certificates issued in connection with such
Mortgage Loans. The Depositor further agrees that it will not, and will not
permit either Servicer to, and each Servicer agrees that it will not, alter the
codes referenced in this paragraph with respect to any Mortgage Loan during the
term of this Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
(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 related
Custodian and any Officer's Certificates delivered with respect thereto shall be
delivered to the Trustee and the related 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 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
48
benefit of the Certificateholders for the purpose of perfecting such security
interest under applicable law (except that nothing in this clause (e) 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.
(e) The Depositor hereby sells, transfers, assigns, sets over and
otherwise conveys to the Trustee in trust for the benefit of the
Certificateholders, without recourse, all right, title and interest in such
Subsequent Mortgage Loans, including all interest and principal due on or with
respect to such Subsequent Mortgage Loans on or after the related Subsequent
Transfer Date and all interest and principal payments on such Subsequent
Mortgage Loans received prior to the Subsequent Transfer Date in respect of
installments of interest and principal due thereafter, but not including
principal and interest due on such Subsequent Mortgage Loans prior to the
related Subsequent Transfer Date, any insurance policies in respect of such
Subsequent Mortgage Loans and all proceeds of any of the foregoing.
(f) Upon one Business Day's prior written notice to the Trustee, the
related Servicer and the Rating Agencies, on any Business Day during the
Pre-Funding Period designated by the Depositor, the Depositor, DLJMC, the
related Servicer and the Trustee shall complete, execute and deliver a
Subsequent Transfer Agreement so long as no Rating Agency has provided notice
that the execution and delivery of such Subsequent Transfer Agreement will
result in a reduction or withdrawal of the ratings assigned to the Certificates
(without regard to the FSA Policy).
The transfer of Subsequent Mortgage Loans and the other property and
rights relating to them on a Subsequent Transfer Date is subject to the
satisfaction of each of the following conditions:
(i) each Subsequent Mortgage Loan conveyed on such Subsequent
Transfer Date satisfies the representations and warranties applicable to
it under this Agreement as of the applicable Subsequent Transfer Date;
provided, however, that with respect to a breach of a representation and
warranty with respect to a Subsequent Mortgage Loan, the obligation under
Section 2.03(f) of this Agreement of the Seller to cure, repurchase or
replace such Subsequent Mortgage Loan shall constitute the sole remedy
against the Seller respecting such breach available to Certificateholders,
the Depositor or the Trustee;
(ii) the Trustee and the Rating Agencies are provided with an
Opinion of Counsel or Opinions of Counsel, at the expense of the
Depositor, stating that each REMIC in the Trust Fund is and shall continue
to qualify as a REMIC following the transfer of the Subsequent Mortgage
Loans, to be delivered as provided pursuant to Section 2.01(g);
(iii) the Rating Agencies and the Trustee are provided with an
Opinion of Counsel or Opinions of Counsel, at the expense of the
Depositor, confirming that the transfer of the
49
Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date is a
true sale, to be delivered as provided pursuant to Section 2.01(g);
(iv) the execution and delivery of such Subsequent Transfer
Agreement or conveyance of the related Subsequent Mortgage Loans does not
result in a reduction or withdrawal of any ratings assigned to the
Certificates by the Rating Agencies (without regard to the FSA Policy);
(v) no Subsequent Mortgage Loan conveyed on such Subsequent Transfer
Date is 30 or more days contractually delinquent as of such date;
(vi) the remaining term to stated maturity of such Subsequent
Mortgage Loan does not exceed 30 years for fully amortizing loans or 15
years for balloon loans;
(vii) the Subsequent Mortgage Loan does not have a Net Mortgage Rate
less than 7.90% per annum;
(viii)the Depositor shall have deposited in the Collection Account
all principal and interest collected with respect to the related
Subsequent Mortgage Loans on or after the related Subsequent Transfer
Date;
(ix) such Subsequent Mortgage Loan does not have a Combined
Loan-to-Value Ratio greater than 100.00%;
(x) the Subsequent Mortgage Loan has a principal balance not greater
than $399,803;
(xi) no Subsequent Mortgage Loan shall have a final maturity date
after April 1, 2032;
(xii) such Subsequent Mortgage Loan is secured by a first or second
lien;
(xiii)such Subsequent Mortgage Loan is otherwise acceptable to the
Rating Agencies;
(xiv) following the conveyance of such Subsequent Mortgage Loans on
such Subsequent Transfer Date the characteristics of the Mortgage Loans
will be as follows:
A. a weighted average Mortgage Rate of at least 12.44% per annum;
B. a weighted average remaining term to stated maturity of less
than 191 months;
C. a weighted average Combined Loan-to-Value Ratio of not more
than 95.04%;
D. a weighted average credit score of at least 660;
50
E. no more than 72.70% of the Mortgage Loans by aggregate Cut-off
Date Principal Balance are balloon loans;
F. no more than 52.85% of the Mortgage Loans by aggregate Cut-off
Date Principal Balance are concentrated in one state; and
G. no more than 5.90% of the Mortgage Loans by aggregate Cut-off
Date Principal Balance relate to non-owner occupied
properties;
(xv) neither the applicable Seller nor the Depositor shall be
insolvent or shall be rendered insolvent as a result of such transfer;
(xvi) no Event of Default has occurred hereunder; and
(xvii) the Depositor shall have delivered to the Trustee an
Officer's Certificate confirming the satisfaction of each of these
conditions precedent.
(g) Upon (1) delivery to the Trustee by the Depositor of the
Opinions of Counsel referred to in Sections 2.01(f)(ii) and (iii), (2) delivery
to the Trustee by the Depositor of a revised Mortgage Loan Schedule reflecting
the Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date and the
related Subsequent Mortgage Loans and (3) delivery to the Trustee by the
Depositor of an Officer's Certificate confirming the satisfaction of each of the
conditions precedent set forth in Section 2.01(f), the Trustee shall remit to
the Depositor the Aggregate Subsequent Transfer Amount related to the Subsequent
Mortgage Loans transferred by the Depositor on such Subsequent Transfer Date
from funds in the Pre-Funding Account.
The Trustee shall not be required to investigate or otherwise verify
compliance with the conditions set forth in the preceding paragraph, except for
its own receipt of documents specified above, and shall be entitled to rely on
the required Officer's Certificate.
SECTION 2.02 Acceptance by the Trustee.
The Trustee acknowledges receipt by each Custodian of the documents
identified in the Initial Certification in the form annexed hereto as Exhibit G
and declares that each Custodian on its behalf hold and will hold the documents
delivered to such Custodian constituting the Mortgage Files, and that it or the
related Custodian holds or will hold such other assets as are included in the
Trust Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it will maintain possession
through the related Custodian of the Mortgage Notes in the State of Texas or the
State of Illinois, as directed by the Seller, unless otherwise permitted by the
Rating Agencies.
Each Custodian agrees to execute and deliver on the Closing Date to
the Depositor, the Seller, FSA, the Trustee and the Servicers an Initial
Certification in the form annexed hereto as Exhibit G. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, each Custodian will acknowledge that such documents appear
regular on their face and relate to such Mortgage Loan. Neither the Trustee nor
the Custodians shall be under any
51
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, each Custodian is
required to deliver to the Depositor, the Seller, FSA, the Trustee and the
Servicers a Final Certification in the form annexed hereto as Exhibit H, with
any applicable exceptions noted thereon.
If, in the course of such review, a Custodian finds any document
constituting a part of a Mortgage File which does not meet the requirements of
Section 2.01, such Custodian will list such as an exception in the Final
Certification; provided, however, that neither the Trustee nor the related
Custodian shall 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 within 90 days from the date the Seller was notified of such defect
in writing at the Repurchase Price of such Mortgage Loan; provided, however,
that in no event shall such substitution or repurchase occur more than 540 days
from the Closing Date, except that 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, then such
substitution or repurchase shall occur within 720 days from the Closing Date;
and further provided, that the 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 the Seller shall not be obligated to
repurchase or cure any Mortgage Loan solely as a result of the Trustee's failure
to record such Assignment of Mortgage. The Trustee shall deliver written notice
to each Rating Agency within 360 days from the Closing Date indicating each
Mortgage Loan (a) the Assignment of Mortgage which has not been returned by the
appropriate recording office or (b) as to which there is a dispute as to
location or status of such Mortgage Loan. Such notice shall be delivered every
90 days thereafter until the Assignment of Mortgage for the related Mortgage
Loan is returned to the Trustee or the dispute as to location or status has been
resolved. Any such substitution pursuant to (a) above shall not be effected
prior to the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05 hereof, if any, and any substitution pursuant to (a) above shall
not be effected prior to the additional delivery to the Trustee of a Request for
Release substantially in the form of Exhibit M. No substitution is permitted to
be made in any calendar month after the Determination Date for such month. The
Repurchase 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 M hereto, the Trustee shall release the related Mortgage File to the
Seller and shall execute and deliver
52
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. In furtherance of the foregoing, if the Seller is not a member
of MERS and repurchases a Mortgage Loan which is registered on the MERS(R)
System, the Seller, at its own expense and without any right of reimbursement,
shall cause MERS to execute and deliver an assignment of the Mortgage in
recordable form to transfer the Mortgage from MERS to the Seller and shall cause
such Mortgage to be removed from registration on the MERS(R) System in
accordance with MERS' rules and regulations.
Pursuant to the related Custodial Agreement, the related Custodian
is required to execute and deliver on the Subsequent Transfer Date to the
Depositor, the Seller, FSA, the Trustee and the related Servicer an Initial
Certification in the form annexed hereto as Exhibit G. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the related Custodian shall acknowledge that such documents
appear regular on their face and relate to such Subsequent Mortgage Loan.
Neither the Trustee nor the related Custodian shall be under a 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.
Pursuant to the related Custodial Agreement, not later than 90 days
after the end of the Pre-Funding Period, the related Custodian is required to
deliver to the Depositor, the Seller, FSA, the Trustee and the related Servicer
a Final Certification with respect to the Subsequent Mortgage Loans in the form
annexed hereto as Exhibit H with any applicable exceptions noted thereon.
If, in the course of such review of the Mortgage Files relating to
the Subsequent Mortgage Loans, the related Custodian finds any document
constituting a part of a Mortgage File which does not meet the requirements of
Section 2.01, pursuant to the related Custodial Agreement, the related Custodian
will be required to list such as an exception in the Final Certification;
provided, however that neither the Trustee nor the related Custodian shall 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 cure any such defect or repurchase or substitute for any such Mortgage
Loan in accordance with Section 2.02(a).
It is understood and agreed that the obligation of the Seller to
cure, substitute for or to repurchase any Mortgage Loan which does not meet the
requirements of Section 2.01 shall constitute the sole remedy respecting such
defect available to the Trustee, the Depositor and any Certificateholder against
the Seller.
The Trustee shall pay to each Custodian from time to time reasonable
compensation for all services rendered by it hereunder or under the related
Custodial Agreement, and the Trustee shall pay or reimburse each Custodian upon
its request for all reasonable expenses, disbursements and advances incurred or
made by such Custodian in accordance with any of the provisions of this
53
Agreement or the related Custodial Agreement, except any such expense,
disbursement or advance as may arise from its negligence or bad faith.
SECTION 2.03 Representations and Warranties of the Seller and
Servicers.
(a) The Seller hereby makes the representations and warranties
applicable to it set forth in Schedule II hereto, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the Closing Date,
or if so specified therein, as of the Cut-off Date or such other date as may be
specified.
(b) Wilshire, in its capacity as Servicer, hereby makes the
representations and warranties applicable to it set forth in Schedule IIIA
hereto, and by this reference incorporated herein, to the Depositor and the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off
Date or such other date as may be specified.
(c) Ocwen, in its capacity as Servicer, hereby makes the
representations and warranties set forth in Schedule IIIB hereto, and by this
reference incorporated herein, to the Depositor and the Trustee, as of the
Closing Date, or if so specified therein, as of the applicable Cut- off Date.
(d) Each of Wilshire and Ocwen, in their capacity as Servicer, will
use its reasonable efforts to become a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS.
(e) The Seller hereby makes the representations and warranties set
forth in Schedule IV as applicable hereto, and by this reference incorporated
herein, to the Trustee, as of the Closing Date, or the Subsequent Transfer Date,
as applicable, or if so specified therein, as of the Cut- off Date or such other
date as may be specified.
(f) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(e) 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. The 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(e) which
materially and adversely affects the interests of the Certificateholders in any
Mortgage Loan sold by the Seller to the Depositor, 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 from the Trustee at the Repurchase Price in the manner
set forth below; provided, however, that any such substitution pursuant to (i)
above shall not be effected prior to the delivery to the Trustee of the Opinion
of Counsel required by Section 2.05 hereof, if any, and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery to
the Trustee of a Request for Release substantially in the form of Exhibit M and
the Mortgage File for
54
any such Qualified Substitute Mortgage Loan. The Seller shall promptly reimburse
the Trustee for any actual out-of-pocket expenses reasonably incurred by the
Trustee 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 the Depositor, the
Seller or the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value of the
related Mortgage Loan or the interests of the Certificateholders therein,
notwithstanding 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. 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 Certificate Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee shall release the Mortgage File held for the benefit of
the Certificateholders relating to such Deleted Mortgage Loan to the Seller and
shall execute and deliver at the Seller's direction such instruments of 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 the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Trustee
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 Certificate 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.
55
In the event that the Seller shall have repurchased a Mortgage Loan,
the Repurchase Price therefor shall be deposited in the Certificate Account on
or before the Business Day immediately preceding the Distribution Date in the
month following the month during which the Seller became obligated hereunder to
repurchase or replace such Mortgage Loan and upon such deposit of the Repurchase
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 M hereto, the Trustee
shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver at
such Person's direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary to transfer
title from the Trustee. It is understood and agreed that the obligation under
this Agreement of any Person to cure, repurchase or substitute any Mortgage Loan
as to which a breach has occurred and is continuing shall constitute the sole
remedy against such Persons respecting such breach available to
Certificateholders, the Depositor or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
SECTION 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans that, as of the Closing Date, assuming good title
has been conveyed to the Depositor, the Depositor had good title to the Mortgage
Loans and Mortgage Notes, and did not encumber the Mortgage Loans during its
period of ownership thereof, other than as contemplated by the Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the Mortgage Files to
the Trustee.
SECTION 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 shall be made more than 90 days after the
Closing Date unless the Seller delivers to the Trustee an Opinion of Counsel,
which Opinion of Counsel shall not be at the expense of either the Trustee or
the Trust Fund, addressed to the Trustee, to the effect that such substitution
will not (i) result in the imposition of the tax on "prohibited transactions" on
the Trust Fund or contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively, or (ii) cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
56
SECTION 2.06 Execution and Delivery of Certificates.
The Trustee (or the related Custodian) acknowledges receipt of the
items described in Section 2.02 of this Agreement and the documents identified
in the Initial Certification in the form annexed hereto as Exhibit G and,
concurrently with such receipt, has executed and delivered to or upon the order
of the Depositor, the Certificates in authorized denominations evidencing
directly or indirectly the entire ownership of the Trust Fund. The Trustee
agrees to hold the Trust Fund and exercise the rights referred to above for the
benefit of all present and future Holders of the Certificates and to perform the
duties set forth in this Agreement to the best of its ability, to the end that
the interests of the Holders of the Certificates may be adequately and
effectively protected.
SECTION 2.07 REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests created
hereby. The "Startup Day" for purposes of the REMIC Provisions shall be the
Closing Date. The REMIC 1 Regular Interests shall be designated as the "regular
interests." The Class A-1, Class X-0, Xxxxx X-0, Class M, Class B-1A, Class
B-1B, Class P and Class X Certificates shall be designated as the "regular
interests" in REMIC 2. The Class A-R Certificates will represent beneficial
ownership of two residual interests, each of which will constitute the sole
class of residual interests in each of REMIC 1 and REMIC 2. The Trustee shall
not permit the creation of any "interests" (within the meaning of Section 860G
of the Code) in REMIC 1 or REMIC 2 other than the Certificates or the
Uncertificated REMIC Regular Interests. The "tax matters person" with respect to
each of REMIC 1 and REMIC 2 shall be the Trustee and the Trustee shall hold the
related Tax Matters Person Certificate in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1. The fiscal year for each REMIC shall be the calendar year.
SECTION 2.08 Covenants of each Servicer.
Each respective Servicer hereby covenants to the Depositor and the
Trustee that no written information, certificate of an officer, statement
furnished in writing or written report prepared by such Servicer and delivered
to the Depositor, any affiliate of the Depositor or the Trustee and prepared by
such Servicer pursuant to this Agreement will contain any untrue statement of a
material fact.
SECTION 2.09 Conveyance of REMIC Regular Interests and Acceptance
of REMIC 1 by the Trustee; Issuance of Certificates.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey in trust to
the Trustee without recourse all the right, title and interest of the Depositor
in and to the REMIC 1 Regular Interests for the benefit of the Holder of the
Regular Certificates and the Holders of the Class R-2 Interest. The Trustee
acknowledges receipt of the REMIC 1 Regular Interests (each of which is
uncertificated) and declares that it holds and will hold the same in trust for
the exclusive use and benefit of the Holders of the Regular Certificates and
Holder of the Class R-2 Interest. The interests evidenced by the Class
57
R-2 Interest, together with the Regular Certificates, constitute the entire
beneficial ownership interest in REMIC 2.
(b) In exchange for the REMIC 1 Regular Interests and, concurrently
with the assignment to the Trustee thereof, pursuant to the written request of
the Depositor executed by an officer of the Depositor, the Trustee has executed,
authenticated and delivered to or upon the order of the Depositor, the Regular
Certificates in authorized denominations evidencing (together with the Class R-2
Interest) the entire beneficial ownership interest in REMIC 2.
(c) Concurrently with (i) the assignment and delivery to the Trustee
of REMIC 1 (including the Residual Interest therein represented by the Class R-1
Interest) and the acceptance by the Trustee thereof, pursuant to Section 2.01,
Section 2.02 and Section 2.09(a); and (ii) the assignment and delivery to the
Trustee of REMIC 2 (including the Residual Interest therein represented by the
Class R-2 Interest) and the acceptance by the Trustee thereof, pursuant to
Section 2.09(b) the Trustee, pursuant to the written request of the Depositor
executed by an officer of the Depositor, has executed, authenticated and
delivered to or upon the order of the Depositor, the Class A-R Certificates in
authorized denominations evidencing the Class R-1 Interest and the Class R-2
Interest.
58
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 Servicers to Service Mortgage Loans.
For and on behalf of the Certificateholders, each Servicer shall
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and with Accepted Servicing Practices. The obligations of each of
Wilshire and Ocwen hereunder to service and administer the Mortgage Loans shall
be limited to the Wilshire Serviced Loans and the Ocwen Serviced Loans,
respectively; and with respect to the duties and obligations of each Servicer,
references herein to "Mortgage Loans" or "related Mortgage Loans" shall be
limited to the Wilshire Serviced Loans (and the related proceeds thereof and
related REO Properties) in the case of Wilshire and the Ocwen Serviced Loans
(and the related proceeds thereof and related REO Properties), in the case of
Ocwen, and in no event shall any Servicer have any responsibility or liability
with respect to any of the other Mortgage Loans. Notwithstanding anything in
this Agreement, any Servicing Agreement or any Credit Risk Management Agreement
to the contrary, neither Servicer shall have any duty or obligation to enforce
any Credit Risk Management Agreement or to supervise, monitor or oversee the
activities of the Credit Risk Manager under its Credit Risk Management Agreement
with respect to any action taken or not taken by a Servicer pursuant to a
recommendation of the Credit Risk Manager. In connection with such servicing and
administration, each Servicer shall have full power and authority, acting alone
and/or through Subservicers as provided in Section 3.02 hereof, to do or cause
to be done any and all things that it may deem necessary or desirable in
connection with such servicing and administration, including but not limited to,
the power and authority, subject to the terms hereof (i) to execute and deliver,
on behalf of the Certificateholders and the Trustee, customary consents or
waivers and other instruments and documents, (ii) to consent to transfers of any
Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages
(but only in the manner provided in this Agreement), (iii) to collect any
Insurance Proceeds and other Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan; provided that a Servicer shall not take any action
that is inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee or the Certificateholders under this Agreement. The
Trustee will provide a limited power of attorney to each Servicer, prepared by
each Servicer and reasonably acceptable to the Trustee, to permit each Servicer
to act on behalf of the Trustee under this Agreement. Each Servicer hereby
indemnifies the Trustee for all costs and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such power of attorney. 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. Each Servicer
further is hereby authorized and empowered in its own name or in the name of the
Subservicer, when such Servicer or the Subservicer, as the case may be, believes
it is appropriate in its best judgment to register any Mortgage Loan on the
MERS(R) System, or cause the removal from the registration of any Mortgage Loan
on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS,
59
solely as nominee for the Trustee and its successors and assigns. Any reasonable
expenses incurred in connection with the actions described in the preceding
sentence or as a result of MERS discontinuing or becoming unable to continue
operations in connection with the MERS(R) System, shall be reimbursable by the
Trust Fund to such Servicer. Notwithstanding the foregoing, subject to Section
3.05(a), the Servicers shall not make or permit any modification, waiver or
amendment of any Mortgage Loan that would both constitute a sale or exchange of
such Mortgage Loan within the meaning of Section 1001 of the Code and any
proposed, temporary or final regulations promulgated thereunder (other than in
connection with a proposed conveyance or assumption of such Mortgage Loan that
is treated as a Principal Prepayment in Full pursuant to Section 3.10 hereof)
which would cause any of REMIC 1 or REMIC 2 to fail to qualify as a REMIC.
Without limiting the generality of the foregoing, each Servicer, in its own name
or in the name of the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when such Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of the
Trustee, the Depositor, the Certificateholders or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans, and with respect to the Mortgaged Properties held for the benefit of the
Certificateholders. Each Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by either or
both of them as are necessary or appropriate to enable such Servicer to service
and administer the Mortgage Loans to the extent that such Servicer is not
permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents and a written request signed by an
authorized officer, the Depositor and/or the Trustee shall execute such
documents and deliver them to such Servicer.
In accordance with the standards of the preceding paragraph, each
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on any Mortgaged
Property (to the extent the Servicer has been notified that such taxes or
assessments have not paid by the related Mortgagor or the owner or the servicer
of the related First Mortgage Loan), which advances shall be reimbursable in the
first instance from related collections from the Mortgagors pursuant to Section
3.06, and further as provided in Section 3.08. The costs incurred by a Servicer,
if any, in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
Subject to Section 3.16, the Trustee shall execute, at the written
request of a Servicer, and furnish to such Servicer and any Subservicer such
documents as are necessary or appropriate to enable such Servicer or any
Subservicer to carry out their servicing and administrative duties hereunder,
and the Trustee hereby grants to each Servicer a power of attorney to carry out
such duties. The Trustee shall not be liable for the actions of the Servicers or
any Subservicers under such powers of attorney.
If the Mortgage relating to a Mortgage Loan had a lien senior to the
Mortgage Loan on the related Mortgaged Property as of the Cut-off Date, then the
related Servicer, in such capacity, may consent to the refinancing of the prior
senior lien, provided that the following requirements are met:
60
(i) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan
is no higher than the Combined Loan-to-Value Ratio prior to such
refinancing; and
(ii) the interest rate, or, in the case of an adjustable rate
existing senior lien, the maximum interest rate, for the loan evidencing
the refinanced senior lien is no more than 2.0% higher than the interest
rate or the maximum interest rate, as the case may be, on the loan
evidencing the existing senior lien immediately prior to the date of such
refinancing; and
(iii) the loan evidencing the refinanced senior lien is not subject
to negative amortization.
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer on behalf
of the related Servicer in accordance with the servicing provisions of this
Agreement, provided that the Subservicer is an approved Xxxxxx Xxx or Xxxxxxx
Mac seller/servicer in good standing. A Servicer may perform any of its
servicing responsibilities hereunder or may cause the Subservicer to perform any
such servicing responsibilities on its behalf, but the use by such Servicer of
the Subservicer shall not release such Servicer from any of its obligations
hereunder and such Servicer shall remain responsible hereunder for all acts and
omissions of the Subservicer as fully as if such acts and omissions were those
of such Servicer. Each Servicer shall pay all fees and expenses of any
Subservicer engaged by such Servicer from its own funds.
Notwithstanding the foregoing, each Servicer shall be entitled to
outsource one or more separate servicing functions to a Person (each, an
"Outsourcer") that does not meet the eligibility requirements for a Subservicer,
so long as such outsourcing does not constitute the delegation of such
Servicer's obligation to perform all or substantially all of the servicing of
the related Mortgage Loans to such Outsourcer. In such event, the use by a
Servicer of any such Outsourcer shall not release such Servicer from any of its
obligations hereunder and such Servicer shall remain responsible hereunder for
all acts and omissions of such Outsourcer as fully as if such acts and omissions
were those of such Servicer, and such Servicer shall pay all fees and expenses
of the Outsourcer from such Servicer's own funds.
(b) At the cost and expense of a Servicer, without any right of
reimbursement from the Depositor, Trustee, the Trust Fund, or the applicable
Collection Account, such Servicer shall be entitled to terminate the rights and
responsibilities of its Subservicer and arrange for any servicing
responsibilities to be performed by a successor Subservicer meeting the
requirements set forth in Section 3.02(a), provided, however, that nothing
contained herein shall be deemed to prevent or prohibit such Servicer, at such
Servicer's option, from electing to service the related Mortgage Loans itself.
In the event that a Servicer's responsibilities and duties under this Agreement
are terminated pursuant to Section 7.01, and if requested to do so by the
Trustee, such Servicer shall at its own cost and expense terminate the rights
and responsibilities of its Subservicer as soon as is reasonably possible. Each
Servicer shall pay all fees, expenses or penalties necessary in order to
terminate the rights and responsibilities of its Subservicer from such
Servicer's own funds without any right of reimbursement from the Depositor,
Trustee, the Trust Fund, or the Collection Account.
61
(c) Notwithstanding any of the provisions of this Agreement relating
to agreements or arrangements between a Servicer and its Subservicer, a Servicer
and its Outsourcer, or any reference herein to actions taken through the
Subservicer, the Outsourcer, or otherwise, no Servicer shall be relieved of its
obligations to the Depositor, Trustee or Certificateholders and shall be
obligated to the same extent and under the same terms and conditions as if it
alone were servicing and administering the related Mortgage Loans. Each Servicer
shall be entitled to enter into an agreement with its Subservicer and Outsourcer
for indemnification of such Servicer or Outsourcer, as applicable, by such
Subservicer and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
For purposes of this Agreement, a Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the related
Mortgage Loans that are received by a related Subservicer or Outsourcer, as
applicable, regardless of whether such payments are remitted by the Subservicer
or Outsourcer, as applicable, to such Servicer.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving a Subservicer or an Outsourcer shall be
deemed to be between the Subservicer or an Outsourcer, and the related Servicer
alone, and the Depositor, the Trustee and the other Servicer shall have no
obligations, duties or liabilities with respect to a Subservicer including no
obligation, duty or liability of the Depositor and Trustee or the Trust Fund to
pay a Subservicer's fees and expenses.
SECTION 3.03 [Reserved].
SECTION 3.04 Trustee to Act as Servicer.
(a) In the event that any Servicer shall for any reason no longer be
a Servicer hereunder (including by reason of an Event of Default), the Trustee
or its successor shall thereupon assume all of the rights and obligations of
such Servicer hereunder arising thereafter (except that the Trustee shall not be
(i) liable for losses of such Servicer pursuant to Section 3.09 hereof or any
acts or omissions of the related predecessor Servicer hereunder, (ii) obligated
to make Advances if it is prohibited from doing so by applicable law or (iii)
deemed to have made any representations and warranties of such Servicer
hereunder). Any such assumption shall be subject to Section 7.02 hereof.
Each Servicer shall, upon request of the Trustee, but at the expense
of such Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement or substitute Subservicing Agreement and
the Mortgage Loans then being serviced thereunder and hereunder by such Servicer
and an accounting of amounts collected or held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the substitute
Subservicing Agreement to the assuming party.
(b) [reserved]
62
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account; Pre-Funding Accounts; Capitalized
Interest Accounts.
(a) Continuously from the date hereof until the principal and
interest on all Mortgage Loans have been paid in full or such Mortgage Loans
have become Liquidated Mortgage Loans, each Servicer shall proceed in accordance
with the customary and usual standards of practice of prudent mortgage loan
servicers 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 shall take special care with respect to Mortgage Loans for which a
Servicer collects escrow payments in ascertaining and estimating Escrow Payments
and all other charges that will become due and payable with respect to the
Mortgage Loans and the Mortgaged Properties, to the end that the installments
payable by the Mortgagors will be sufficient to pay such charges as and when
they become due and payable. Consistent with the terms of this Agreement, each
Servicer may also waive, modify or vary any term of any Mortgage Loan or consent
to the postponement of strict compliance with any such term or in any manner
grant indulgence to any Mortgagor if in such Servicer's determination such
waiver, modification, postponement or indulgence is not materially adverse to
the interests of the Certificateholders (taking into account any estimated
Realized Loss that might result absent such action); provided, however, that
such Servicer may not modify materially or permit any Subservicer to modify any
Mortgage Loan, including without limitation any modification that would change
the Mortgage Rate, forgive the payment of any principal or interest (unless in
connection with the liquidation of the related Mortgage Loan or except in
connection with prepayments to the extent that such reamortization is not
inconsistent with the terms of the Mortgage Loan), or extend the final maturity
date of such Mortgage Loan, unless such Mortgage Loan is in default or, in the
judgment of such Servicer, such default is reasonably foreseeable; and that no
such modification shall reduce the interest rate on a Mortgage Loan below the
rate at which the Servicing Fee with respect to such Mortgage Loan accrues. In
the event of any such arrangement, the related Servicer shall make Advances on
the related Mortgage Loan in accordance with the provisions of Section 4.01
during the scheduled period in accordance with the amortization schedule of such
Mortgage Loan without modification thereof by reason of such arrangements. Each
Servicer shall not be required to institute or join in litigation with respect
to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which such payment is required
is prohibited by applicable law.
(b) Each Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Collection
Accounts, in the form of time deposit or demand accounts, titled "[Servicer's
name], in trust for the Holders of Credit Suisse First Boston Mortgage
Securities Corp., CSFB Mortgage Pass-Through Certificates, Series 2002-S12" or,
if established and maintained by a Subservicer on behalf of the related
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". Each Collection
Account shall be an Eligible Account. Any funds deposited in a Collection
Account shall at all times be either invested in Eligible
63
Investments or shall be fully insured to the full extent permitted under
applicable law. Funds deposited in a Collection Account may be drawn on by the
applicable Servicer in accordance with Section 3.08.
Each Servicer shall deposit in the Collection Account on a daily
basis and retain therein, the following collections remitted by Subservicers or
payments received by such Servicer and payments made by such Servicer subsequent
to the Cut-off Date, other than payments of principal and interest due on or
before the Cut-off Date:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the per annum rate equal to the Mortgage Rate reduced by the
related Servicing Fee Rate;
(iii) all Liquidation Proceeds on the Mortgage Loans;
(iv) all Insurance Proceeds on the Mortgage Loans including amounts
required to be deposited pursuant to Section 3.09 (other than proceeds to
be held in the Escrow Account and applied to the restoration or repair of
the Mortgaged Property or released to the Mortgagor in accordance with
Section 3.09);
(v) all Advances made by such Servicer pursuant to Section 4.01;
(vi) with respect to each Principal Prepayment on the Mortgage
Loans, the Prepayment Interest Shortfall, if any, for the Prepayment
Period. The aggregate of such deposits shall be made from such Servicer's
own funds, without reimbursement therefor, up to a maximum amount per
month equal to the Compensating Interest Payment, if any, for the Mortgage
Loans and that Distribution Date;
(vii) any amounts required to be deposited by such Servicer in
respect of net monthly income from REO Property pursuant to Section 3.11;
and
(viii) any other amounts required to be deposited hereunder
including all collected Prepayment Penalties.
The foregoing requirements for deposit into each Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, Ancillary Income need not be deposited by such
Servicer into such Collection Account. In addition, notwithstanding the
provisions of this Section 3.05, each Servicer may deduct from amounts received
by it, prior to deposit to the applicable Collection Account, any portion of any
Scheduled Payment representing the applicable Servicing Fee. In the event that a
Servicer shall remit any amount not required to be remitted, it may at any time
withdraw or direct the institution maintaining the related Collection Account to
withdraw such amount from such Collection Account, any provision herein to the
contrary notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the Trustee or such other institution
maintaining such
64
Collection Account which describes the amounts deposited in error in such
Collection Account. Each Servicer shall maintain adequate records with respect
to all withdrawals made by it pursuant to this Section. All funds deposited in a
Collection Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.08.
(c) On or prior to the Closing Date, the Trustee shall establish and
maintain, on behalf of the Certificateholders, the Certificate Account. The
Trustee shall, promptly upon receipt, deposit in the Certificate Account and
retain therein the following:
(i) the aggregate amount remitted by each Servicer to the Trustee
pursuant to Section 3.08(viii);
(ii) any amount deposited by the Trustee pursuant to Section 3.05(e)
in connection with any losses on Eligible Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
In the event that a Servicer shall remit to the Trustee any amount
not required to be remitted, it may at any time direct the Trustee to withdraw
such amount from the Certificate Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in the
Certificate Account. All funds deposited in the Certificate Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08(b).
In no event shall the Trustee incur liability for withdrawals from the
Certificate Account at the direction of a Servicer.
(d) Each institution at which a Collection Account, the Certificate
Account or the Pre-Funding Account is maintained shall either hold such funds on
deposit uninvested or shall invest the funds therein as directed in writing by
the related Servicer (in the case of a Collection Account), the Trustee (in the
case of the Certificate Account) or the Depositor (in the case of the
Pre-Funding Account), in Eligible Investments, which shall mature not later than
(i) in the case of a Collection Account, the second Business Day immediately
preceding the related Distribution Date and (ii) in the case of the Certificate
Account and the Pre-Funding Account, the Business Day immediately preceding the
Distribution Date and, in each case, shall not be sold or disposed of prior to
its maturity. All income and gain net of any losses realized from any such
balances or investment of funds on deposit in a Collection Account shall be for
the benefit of the related Servicer as servicing compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses in
a Collection Account incurred in any such account in respect of any such
investments shall promptly be deposited by the related Servicer in the related
Collection Account. The Trustee in its fiduciary capacity shall not be liable
for the amount of any loss incurred in respect of any investment or lack of
investment of funds held in a Collection Account or the Pre-Funding Account. All
income and gain net of any losses realized from any such investment of funds on
deposit in the Certificate Account shall be for the benefit of the Trustee as
compensation and shall be remitted to it monthly as provided herein. The amount
of any realized losses in the Certificate Account incurred in any such account
in respect of any such investments shall promptly be deposited by the Trustee in
the
65
Certificate Account. All income and gain net of any losses realized from any
such balances or investment of funds on deposit in the Pre-Funding Account shall
be for the benefit of the Depositor and shall be remitted to it monthly.
(e) Each Servicer shall give notice to the Trustee, the Seller, each
Rating Agency and the Depositor of any proposed change of the location of the
related Collection Account prior to any change thereof. The Trustee shall give
notice to each Servicer, the Seller, each Rating Agency and the Depositor of any
proposed change of the location of the Certificate Account prior to any change
thereof.
(f) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Pre-Funding Account. On the Closing Date, the Depositor
shall remit the Pre-Funding Amount to the Trustee for deposit in the Pre-Funding
Account. On each Subsequent Transfer Date, upon satisfaction of the conditions
for such Subsequent Transfer Date set forth in Section 2.01(f), with respect to
the related Subsequent Transfer Agreement, the Trustee shall remit to the
Depositor the applicable Aggregate Subsequent Transfer Amount as payment of the
purchase price for the related Subsequent Mortgage Loans.
If any funds remain in any Pre-Funding Account on July 24, 2002, to
the extent they represent interest earnings on the amounts originally deposited
into such Pre-Funding Account, the Trustee shall distribute them to the order of
the Depositor. The remaining funds in the Pre-Funding Account shall be
transferred to the Certificate Account to be included as part of principal
distributions to the Class A-1, Class A-2 and Class A-3 Certificates.
(g) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Capitalized Interest Account. On the Closing Date, the
Depositor shall remit the applicable Capitalized Interest Deposit to the Trustee
for deposit in the Capitalized Interest Account. On the Business Day prior to
each of the May 2002, June 2002 and July 2002 Distribution Dates, the Trustee
shall transfer from the Capitalized Interest Account to the Certificate Account
an amount equal to the Capitalized Interest Requirement for such Distribution
Date. On each of the May 2002 and June 2002 Distribution Dates, the applicable
Overfunded Interest Amount shall be withdrawn from the Capitalized Interest
Account and paid to the Depositor. Any funds remaining in the Capitalized
Interest Account immediately after the July 2002 Distribution Date shall be paid
to the Depositor.
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 current 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, "Credit Suisse First Boston Mortgage
Securities Corp., CSFB Mortgage Pass-Through Certificates, Series 2002-S12" or,
if established and maintained by a Subservicer on behalf of the related
Servicer, "[Subservicer's name], in trust for [Servicer's name]"
66
or "[Subservicer's name], as agent, trustee and/or bailee of taxes and insurance
custodial account for [Servicer's name], its successors and assigns, for various
owners of interest in [Servicer's name] mortgage-backed pools". The Escrow
Accounts shall be Eligible Accounts. Funds deposited in the Escrow Account may
be drawn on by the related Servicer in accordance with Section 3.06(b). The
creation of any Escrow Account shall be evidenced by a certification in the form
of Exhibit P-1 hereto, in the case of an account established with a Servicer, or
by a letter agreement in the form of Exhibit P-2 hereto, in the case of an
account held by a depository other than a Servicer. A copy of such certification
shall be furnished to the Depositor and Trustee.
(b) Each Servicer shall deposit in its Escrow Account or Accounts on
a daily basis within one Business Day 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.
Each Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 3.06(d). Each Servicer shall be entitled to retain any interest paid on
funds deposited in the related Escrow Account by the depository institution,
other than interest on escrowed funds required by law to be paid to the
Mortgagor. To the extent required by law, the applicable Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account may be non-interest bearing or that interest paid thereon is
insufficient for such purposes.
(c) Withdrawals from the Escrow Account or Accounts may be made by
the related Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse such Servicer for any Servicing Advances made by
such Servicer pursuant to Section 3.06(e) 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;
67
(v) for application to restore or repair of the related Mortgaged
Property in accordance with the procedures outlined in Section 3.09(e);
(vi) to pay to such Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in such Escrow
Account; and
(vii) to clear and terminate such Escrow Account on the termination
of this Agreement.
SECTION 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans; Inspections.
(a) Each Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage Loans
and all accounts, insurance information and other matters relating to this
Agreement, such access being afforded without charge, but only upon reasonable
request and during normal business hours at the office designated by such
Servicer.
(b) Each Servicer shall inspect the Mortgaged Properties as often as
deemed necessary by such Servicer in such Servicer's sole discretion, to assure
itself that the value of such Mortgaged Property is being preserved. In
addition, if any Mortgage Loan is more than 60 days delinquent, each Servicer
shall conduct subsequent inspections in accordance with Accepted Servicing
Practices or as may be required by the primary mortgage guaranty insurer. Each
Servicer shall keep a written or electronic report of each such inspection.
SECTION 3.08 Permitted Withdrawals from the Collection Accounts
and Certificate Account.
Each Servicer may from time to time make withdrawals from the
related Collection Account for the following purposes:
(i) to pay to such Servicer (to the extent not previously retained
by such Servicer) the servicing compensation to which it is entitled
pursuant to Section 3.14, and to pay to such Servicer, as additional
servicing compensation, earnings on or investment income with respect to
funds in or credited to such Collection Account;
(ii) to reimburse such Servicer for unreimbursed Advances made by
it, such right of reimbursement pursuant to this subclause (ii) being
limited to amounts received on the Mortgage Loan(s) in respect of which
any such Advance was made (including without limitation, late recoveries
of payments, Liquidation Proceeds and Insurance Proceeds to the extent
received by such Servicer);
(iii) to reimburse such Servicer for any Nonrecoverable Advance
previously made from collections or proceeds of any of the Mortgage Loans;
68
(iv) to reimburse such Servicer for (A) unreimbursed Servicing
Advances, such Servicer's right to reimbursement pursuant to this clause
(A) with respect to any Mortgage Loan being limited to amounts received on
such Mortgage Loan which represent late payments of principal and/or
interest (including, without limitation, Liquidation Proceeds and
Insurance Proceeds with respect to such Mortgage Loan) respecting which
any such advance was made, (B) for unpaid Servicing Fees as provided in
Section 3.11 hereof and (C) in the case of Ocwen, for unpaid Servicing
Fees not otherwise collected from Liquidation Proceeds;
(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 reimburse such Servicer or the Depositor for expenses
incurred by any of them and reimbursable pursuant to Section 6.03 hereof;
(vii) to withdraw any amount deposited in such Collection Account
and not required to be deposited therein;
(viii)on or prior to the Servicer Remittance Date, to withdraw an
amount equal to the Available Funds plus any related Expense Fees (other
than the Servicing Fee) for such Distribution Date and any Prepayment
Penalties received in respect of the Mortgage Loans, subject to the
collection of funds included in the definition of "Available Funds" and
remit such amount to the Trustee for deposit in the Certificate Account;
and
(ix) to clear and terminate such Collection Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan basis for the purpose of justifying any withdrawal from the
Collection Account pursuant to such subclauses (i), (ii), (iv) and (v). Prior to
making any withdrawal from a Collection Account pursuant to subclause (iii), the
related Servicer shall deliver to the Trustee a certificate of a Servicing
Officer indicating the amount of any previous Advance determined by such
Servicer to be a Nonrecoverable Advance and identifying the related Mortgage
Loans(s), and their respective portions of such Nonrecoverable Advance.
The Trustee shall withdraw funds from the Certificate Account for
distributions to Certificateholders and the Credit Risk Manager, if applicable,
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
the last paragraph of Section 8.11). In addition, the Trustee may from time to
time make withdrawals from the Certificate Account for the following purposes:
(i) to pay to itself the Trustee Fee and any investment income
earned for the related Distribution Date;
69
(ii) to withdraw and return to the applicable Servicer for deposit
to the Collection Account any amount deposited in the Certificate Account
and not required to be deposited therein; and
(iii) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01 hereof.
SECTION 3.09 Maintenance of Hazard Insurance and Mortgage
Impairment Insurance; Claims; Restoration of Mortgaged
Property.
Each 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, which policy shall provide coverage in an
amount equal to the amount at least equal to the lesser of (i) the maximum
insurable 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 co-insurer. Any amounts collected
by a Servicer under any such policy relating to a Mortgage Loan shall be
deposited in the related Collection Account subject to withdrawal pursuant to
Section 3.08. 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 standard hazard insurance policy, and there shall have been a loss
which would have been covered by such policy, the related Servicer shall deposit
in the related Collection Account at the time of such loss the amount not
otherwise payable under the blanket policy because of such deductible clause,
such amount to be deposited from such Servicer's funds, without reimbursement
therefor. Upon request of the Trustee, a Servicer shall cause to be delivered to
the Trustee a certified true copy of such policy and a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days' prior written notice to the Trustee. In
connection with its activities as Servicer of the Mortgage Loans, each Servicer
agrees to present, on behalf of itself, the Depositor, and the Trustee for the
benefit of the Certificateholders, claims under any such blanket policy.
Pursuant to Section 3.05, any amounts collected by a Servicer under
any such policies (other than amounts to be deposited in the related Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with such Servicer's normal servicing
procedures) shall be deposited in the related Collection Account (subject to
withdrawal pursuant to Section 3.08).
A Servicer need not obtain the approval of the Trustee prior to
releasing any Insurance Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in accordance
with Accepted Servicing Practices. At a minimum, each Servicer shall comply with
the following conditions in connection with any such release of Insurance
Proceeds:
(i) such Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required
approvals with respect thereto;
70
(ii) such Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens; and
(iii) pending repairs or restoration, such Servicer shall place the
Insurance Proceeds in the related Escrow Account.
If the Trustee is named as an additional loss payee, the related
Servicer is hereby empowered to endorse any loss draft issued in respect of such
a claim in the name of the Trustee.
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
Each Servicer shall use its best efforts to enforce any
"due-on-sale" provision contained in any related Mortgage or Mortgage Note and
to deny assumption by the person to whom the Mortgaged Property has been or is
about to be sold whether by absolute conveyance or by contract of sale, and
whether or not the Mortgagor remains liable on the Mortgage and the Mortgage
Note. When the Mortgaged Property has been conveyed by the Mortgagor, the
related Servicer shall, to the extent it has knowledge of such conveyance,
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that such Servicer
shall not exercise such rights if prohibited by law from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related Primary Insurance Policy, if any.
If a Servicer reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause, such Servicer shall enter into (i) an
assumption and modification agreement with the person to whom such property has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event such
Servicer is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and such Servicer has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, a Servicer shall not be deemed to be in default
under this Section by reason of any transfer or assumption which such 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.
Subject to each Servicer's duty to enforce any due-on-sale clause to
the extent set forth in this Section 3.10, in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, such Servicer shall prepare and
deliver or cause to be prepared and delivered to the
71
Trustee for signature and shall direct, in writing, the Trustee to execute the
assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property
to such Person. In connection with any such assumption, no material term of the
Mortgage Note may be changed. Together with each such substitution, assumption
or other agreement or instrument delivered to the Trustee for execution by it,
the related Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this Section 3.10 have been
met in connection therewith. The related Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed by forwarding
to the Trustee the original of such substitution or assumption agreement, which
in the case of the original shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting a part thereof. Any
fee collected by a Servicer for entering into an assumption or substitution of
liability agreement will be retained by such Servicer as additional servicing
compensation.
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.
(a) (i) 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.
With respect to such of the Mortgage Loans as come into and continue in default,
each Servicer will decide whether to (i) foreclose upon the Mortgaged Properties
securing such Mortgage Loans, (ii) write off the unpaid principal balance of the
Mortgage Loans as bad debt, (iii) take a deed in lieu of foreclosure, (iv)
accept a short sale (a payoff of the Mortgage Loan for an amount less than the
total amount contractually owed in order to facilitate a sale of the Mortgaged
Property by the Mortgagor) or permit a short refinancing (a payoff of the
Mortgage Loan for an amount less than the total amount contractually owed in
order to facilitate refinancing transactions by the Mortgagor not involving a
sale of the Mortgaged Property), (v) arrange for a repayment plan, or (vi) agree
to a modification in accordance with this Agreement. In connection with such
decision, the related Servicer shall take such action as (i) such Servicer would
take under similar circumstances with respect to a similar mortgage loan held
for its own account for investment, (ii) shall be consistent with Accepted
Servicing Practices, (iii) such Servicer shall determine consistently with
Accepted Servicing Practices to be in the best interest of the Trustee and
Certificateholders, and (iv) is consistent with the requirements of the insurer
under any Required Insurance Policy; provided, however, that such Servicer shall
not be required to expend its own funds in connection with any foreclosure or
towards the restoration of any property unless it shall determine (i) that such
restoration and/or foreclosure will increase the proceeds of liquidation of the
related Mortgage Loan after reimbursement to itself of such expenses and (ii)
that such expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
related Collection Account). The related Servicer shall be responsible for all
other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the liquidation
proceeds with respect
72
to the related Mortgaged Property, as provided in the definition of Liquidation
Proceeds and as provided in Section 3.08(iv)(A).
(ii) Notwithstanding anything to the contrary contained in this
Agreement, with respect to any Mortgage Loan that is one hundred twenty (120)
days delinquent, the related Servicer shall obtain a broker's price opinion with
respect to the related Mortgaged Property, the cost of obtaining any such
broker's price opinion to be reimbursable to the related Servicer as a Servicing
Advance pursuant to Section 3.08(iii) or (iv). After obtaining the related
broker's price opinion, the related Servicer will determine whether any
significant Net Recovery is possible through foreclosure proceedings or other
liquidation of the related Mortgaged Property. If the related Servicer
determines that no such recovery is possible, it may, at its discretion, charge
off such delinquent Mortgage Loan in accordance with subsections (a)(iii) and
(a)(iv) below. As to any Ocwen Serviced Loan:
(A) prior to obtaining the broker's price opinion described
above and thereafter except as described in clause (B) below, Ocwen
shall have absolutely no obligation to perform loss mitigation or
default management services (other than its standard collection
activities) with respect to any such Mortgage Loan, provided,
however, that Ocwen shall be entitled to receive its Servicing Fee
with respect to such Mortgage Loan through the 120th day of
delinquency; and
(B) if Ocwen determines that a significant Net Recovery is
possible through foreclosure proceedings or other liquidation of the
related Mortgaged Property, then Ocwen shall special service the
related Mortgage Loan and shall receive as servicing compensation
(i) $100 per month from the date on which Ocwen begins to special
service such Mortgage Loan through foreclosure or liquidation and
(ii) $135 per month for the period during which Ocwen is special
servicing the related REO Property, provided that, if Ocwen acts as
special servicer with respect to a Mortgage Loan pursuant this
clause (B), Ocwen shall receive such compensation in lieu of its
Servicing Fee pursuant to clause (A) above. As to any Ocwen Serviced
Loan for which Ocwen is to receive the compensation described in the
previous sentence in lieu of its Servicing Fee, Ocwen shall report
such information to the Trustee together with the information
reported to the Trustee on each Servicer Data Remittance Date
pursuant to Section 4.06 hereof.
(iii) If the related Servicer determines based on the broker's price
opinion obtained under paragraph (a)(ii) above and other relevant considerations
that no significant Net Recovery is possible through foreclosure proceedings or
other liquidation of the related Mortgaged Property, it will be obligated to
charge off the related Mortgage Loan no later than the time such Mortgage Loan
becomes 180 days delinquent. Once a Mortgage Loan has been charged off, the
related Servicer will discontinue making Advances, the related Servicer will not
be entitled to any additional servicing compensation (except as described in
paragraphs(a)(ii) or (a) (iv) of this Section 3.11), the Charged Off Loan will
give rise to a Realized Loss, and the related Servicer will follow the
procedures described in paragraph (a)(iv) below. If the related Servicer
determines that a significant Net Recovery is possible through foreclosure
proceedings or other liquidation of the Mortgaged Property, and that Servicer
decides to make Advances or Servicing Advances on a
73
Mortgage Loan that becomes 180 days delinquent, that Servicer will notify the
Credit Risk Manager of that decision.
(iv) (A) With respect to any Ocwen Serviced Loan that becomes a
Charged Off Loan, Ocwen shall notify Wilshire of its decision to
charge off such Mortgage Loan and the servicing of such Ocwen
Serviced Loan will be transferred to Wilshire, such transfer to be
initiated by Ocwen, on the 15th day of the month (or if the 15th of
the month is not a Business Day, the next Business Day) following
the month in which such Ocwen Serviced Loan becomes a Charged Off
Loan and may be serviced, at Wilshire's discretion, using
non-foreclosure collection procedures as provided in paragraph
(iv)(B) below. With respect to any Ocwen Serviced Loan transferred
to Wilshire pursuant to this clause (iv)(A) prior to such Mortgage
Loan being serviced by Ocwen for a period of one year, Ocwen shall
receive $25 as a deboarding fee. Ocwen shall notify the Trustee of
any Ocwen Serviced Loan that is transferred to Wilshire. Ocwen shall
provide servicing information on such transferred Mortgage Loans as
reasonably requested by Wilshire including, but not limited to, an
electronic data tape containing the fields set forth in Exhibit T
hereto, and an electronic file containing collection comments,
outstanding advance balances, payment histories, and hardcopies of
any imaged files. Ocwen shall be responsible for any other
reasonable actions required by Accepted Servicing Practices relating
to the transfer of servicing and the charging off of such Mortgage
Loans. All costs of such transfer of the electronic data tape and
files shall be paid by Ocwen. Ocwen shall not be responsible for
Wilshire's boarding costs of such transferred Mortgage Loans.
Wilshire shall not be responsible for the reimbursement of any
Advance or Servicing Advance on a transferred Mortgage Loan.
(B) Any (x) Wilshire Serviced Loan that becomes a Charged Off
Loan and (y) any Ocwen Serviced Loan that becomes a Charged Off Loan
and is transferred to Wilshire pursuant to paragraph (iv)(A) above
may continue to be serviced by Wilshire for the Certificateholders
using non-foreclosure collection procedures. Wilshire will accrue,
but not be entitled to any Servicing Fees and reimbursement of
expenses in connection with such Charged Off Loans, except to the
extent of funds available from the aggregate amount of recoveries on
all Charged Off Loans. Such aggregate recovery amounts on Charged
Off Loans shall be paid to Wilshire first, as reimbursement of any
outstanding and unpaid expenses, and second, as any accrued and
unpaid Servicing Fees. Wilshire will only be entitled to previously
accrued Servicing Fees and expenses on any such Charged Off Loans.
Wilshire will not be entitled to receive any future unaccrued
Servicing Fees or expenses from collections on such Charged Off
Loans. Any Charged Off Loan serviced by Wilshire using non-
foreclosure collection procedures shall be so serviced until the
Release Date described below. Any Net Recoveries on such Charged Off
Loans received prior to the Release Date will be treated as
Liquidation Proceeds and included in Available Funds.
On the date (the "Release Date") which is six months after the date
on which Wilshire begins servicing any Charged Off Loans using the
non-foreclosure procedures, unless specific Net
74
Recoveries are anticipated by Wilshire on a particular Charged Off Loan (in
which case the Release Date will be delayed until all such specific anticipated
Net Recoveries are received), such Charged Off Loan will be released from the
Trust Fund, will no longer be an asset of any REMIC, and will be transferred to
the Class X-2 Certificateholders, without recourse, and thereafter (i) those
Holders will be entitled to any amounts subsequently received in respect of any
such Released Loans, (ii) the Majority in Interest Class X-2 Certificateholder
may designate any servicer to service any such Released Loan and (iii) the
Majority in Interest Class X-2 Certificateholder may sell any such Released Loan
to a third party. Notwithstanding the previous sentence, if at any time after a
Mortgage Loan has been Charged Off, Wilshire determines that there will not be
any Net Recoveries on such Charged Off Loan under any circumstances, Wilshire
may release such Charged Off Loan to the Majority in Interest Class X-2
Certificateholder in accordance with the provisions set forth in the previous
sentence.
Notwithstanding the foregoing, the procedures described above in
this subsection 3.11(a)(iv) relating to the treatment of Charged Off Loans may
be modified at any time at the discretion of the Majority in Interest Class X-1
Certificateholder, with the consent of Wilshire, which consent shall not be
unreasonably withheld, and if the modification would adversely affect or
materially increase the obligations of Ocwen, with the consent of Ocwen, which
consent shall not be unreasonably withheld; provided, however, that in no event
shall the Majority in Interest Class X-1 Certificateholder change the fee
structure relating to Charged Off Loans in a manner that would cause fees to be
paid to Wilshire other than from recoveries on Charged Off Loans.
The Trustee shall track collections received by Wilshire on any
Charged Off Loans based upon loan level data provided to the Trustee by Wilshire
on each Servicer Data Remittance Date in a report in the form of Exhibit U
hereto, identifying the Charged Off Loans as of the related Due Period that
Wilshire will continue to service until the related Release Date using non-
foreclosure collection procedures. On each Distribution Date, the Trustee shall
verify, based on the recovery and expense information provided by Wilshire on
the related Servicer Data Remittance Date, (i) the aggregate amount of accrued
and unpaid Servicing Fees to be paid to Wilshire and expenses to be reimbursed
to Wilshire on such Charged Off Loans as of the related Due Period and (ii) the
amount of Net Recoveries on such Charged Off Loans for such Distribution Date.
The Trustee shall be entitled to rely, without independent verification, on the
loan level data provided by Wilshire that identifies the recovery amounts and
the outstanding and unpaid expenses on any Charged Off Loan in order to verify
the amount in clause (ii) of the previous sentence. The Trustee will be
responsible for independently verifying the aggregate amount of accrued and
unpaid Servicing Fees described in clause (i) of the second preceding sentence
to be paid to Wilshire.
(v) Notwithstanding anything to the contrary contained in this
Agreement, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the related Servicer has reasonable cause to believe
that a Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, or if the Trustee otherwise requests, an environmental inspection or
review of such Mortgaged Property conducted by a qualified inspector shall be
arranged for by such Servicer. Upon completion of the inspection, the related
Servicer shall promptly provide the Trustee with a written report of
environmental inspection.
75
(vi) In the event the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, the related Servicer shall not proceed with foreclosure or acceptance of
a deed in lieu of foreclosure if the estimated costs of the environmental clean
up, as estimated in the environmental inspection report, together with the
Servicing Advances made by such Servicer and the estimated costs of foreclosure
or acceptance of a deed in lieu of foreclosure exceeds the estimated value of
the Mortgaged Property. If however, the aggregate of such clean up and
foreclosure costs and Servicing Advances are less than or equal to the estimated
value of the Mortgaged Property, then the related Servicer may, in its
reasonable judgment and in accordance with Accepted Servicing Practices, choose
to proceed with foreclosure or acceptance of a deed in lieu of foreclosure and
such Servicer shall be reimbursed for all reasonable costs associated with such
foreclosure or acceptance of a deed in lieu of foreclosure and any related
environmental clean up costs, as applicable, from the related Liquidation
Proceeds, or if the Liquidation Proceeds are insufficient to fully reimburse
such Servicer, such Servicer shall be entitled to be reimbursed from amounts in
the related Collection Account pursuant to Section 3.08 hereof. In the event the
related Servicer does not proceed with foreclosure or acceptance of a deed in
lieu of foreclosure pursuant to the first sentence of this paragraph, such
Servicer shall be reimbursed for all Servicing Advances made with respect to the
related Mortgaged Property from the related Collection Account pursuant to
Section 3.08 hereof, and such Servicer shall have no further obligation to
service such Mortgage Loan under the provisions of this Agreement.
(b) With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The related Servicer shall
ensure that the title to such REO Property references this Agreement and the
Trustee's capacity hereunder. Pursuant to its efforts to sell such REO Property,
the related Servicer shall in accordance with Accepted Servicing Practices
manage, conserve, protect and operate each REO Property for the purpose of its
prompt disposition and sale. The related Servicer, either itself or through an
agent selected by such Servicer, shall manage, conserve, protect and operate the
REO Property in the same manner that it manages, conserves, protects and
operates other foreclosed property for its own account, and in the same manner
that similar property in the same locality as the REO Property is managed. The
related Servicer shall furnish to the Trustee on or before each Distribution
Date a statement with respect to any REO Property covering the operation of such
REO Property for the previous calendar month and such Servicer's efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous calendar month. That
statement shall be accompanied by such other information as the Trustee shall
reasonably request and which is necessary to enable the Trustee to comply with
the reporting requirements of the REMIC Provisions. The net monthly rental
income, if any, from such REO Property shall be deposited in the related
Collection Account no later than the close of business on each Determination
Date. The related Servicer shall perform the tax reporting and withholding
required by Sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and any tax
reporting required by Section 6050P of the Code with respect to the cancellation
of indebtedness by certain financial entities, by preparing such tax and
information returns as may be required, in the form required, and delivering the
same to the Trustee for filing.
76
To the extent consistent with Accepted Servicing Practices, the
related Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is equal to the outstanding
principal balance of the related Mortgage Loan (as reduced by any amount applied
as a reduction of principal at the time of acquisition of the REO Property),
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
(c) In the event that the Trust Fund acquires any Mortgaged Property
as aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the related Servicer shall dispose of such Mortgaged Property
prior to three years after the end of the calendar year of its acquisition by
the Trust Fund unless (i) the Trustee shall have been supplied with an Opinion
of Counsel to the effect that the holding by the Trust Fund of such Mortgaged
Property subsequent to such three-year period will not result in the imposition
of taxes on "prohibited transactions" of any REMIC hereunder as defined in
section 860F of the Code or cause any REMIC hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel) or (ii) the applicable Servicer shall have
applied for, prior to the expiration of such three-year period, an extension of
such three-year period in the manner contemplated by Section 856(e)(3) of the
Code, in which case the three-year period shall be extended by the applicable
extension period. Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of section 860G(a)(8) of the Code or (ii) subject any REMIC
hereunder to the imposition of any federal, state or local income taxes on the
income earned from such Mortgaged Property under Section 860G(c) of the Code or
otherwise, unless the related Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of a
deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the related Servicer will cause compliance with the provisions of
Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto) necessary
to assure that no withholding tax obligation arises with respect to the proceeds
of such foreclosure except to the extent, if any, that proceeds of such
foreclosure are required to be remitted to the obligors on the Mortgage Loan.
(d) The decision of a Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by such Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding. The income earned from the management of any REO Properties, net of
reimbursement to such Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of applicable accrued
and unpaid Servicing Fees, and unreimbursed Advances and Servicing Advances,
shall be applied to the payment of principal of and interest on the related
defaulted Mortgage Loans (with interest accruing as though such Mortgage Loans
were still current) and all such income shall be deemed, for all purposes in
this Agreement, to be payments on account of principal and interest on the
related
77
Mortgage Notes and shall be deposited into the related Collection Account. To
the extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for such calendar month, such excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
(e) The proceeds from any liquidation of a Mortgage Loan, as well as
any income from an REO Property, will be applied in the following order of
priority: first, to reimburse the related Servicer for any related unreimbursed
Servicing Advances and Servicing Fees; second, to reimburse such Servicer for
any unreimbursed Advances; third, to reimburse the related Collection Account
for any Nonrecoverable Advances (or portions thereof) that were previously
withdrawn by such Servicer pursuant to Section 3.08(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, to the Due Date
occurring in the month in which such amounts are required to be distributed; and
fifth, as a recovery of principal of the Mortgage Loan. Excess Proceeds, if any,
from the liquidation of a Liquidated Mortgage Loan will be retained by the
related Servicer as additional servicing compensation pursuant to Section 3.14.
(f) [reserved].
(g) The Majority in Interest Class X-2 Certificateholder, at its
option, may (but is not obligated to) repurchase from the Trust Fund, (a) any
related Mortgage Loan that is delinquent in payment by three or more Scheduled
Payments 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. If it elects to make any
such repurchase, the Majority in Interest Class X-2 Certificateholder shall
repurchase such Mortgage Loan with its own funds at a price equal to the
Repurchase Price for such Mortgage Loan. The Majority in Interest Class X-2
Certificateholder may designate any servicer to service any such Mortgage Loan
purchased from the Trust. In the event that the Majority in Interest Class X-2
Certificateholder does not purchase any such Mortgage Loan from the Trust, then
the Majority in Interest Class X-1 Certificateholder may appoint a special
servicer to service any such Mortgage Loan.
SECTION 3.12 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by a
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, such Servicer will immediately notify the Trustee
(or the related Custodian, as the case may be) by delivering, or causing to be
delivered a "Request for Release" substantially in the form of Exhibit M. Upon
receipt of such request, the Trustee (or the related Custodian, as the case may
be) shall within three Business Days release the related Mortgage File to the
related Servicer, and the Trustee shall within three Business Days of such
Servicer's direction execute and deliver to such Servicer the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage in each case provided by such
Servicer, together with the Mortgage Note with written evidence of cancellation
thereon. Each Servicer is authorized to
78
cause the removal from the registration on the MERS(R) System of such Mortgage,
if applicable, and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation or of partial or full release. Expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the related Mortgagor to the extent permitted by law and otherwise shall
constitute a Servicing Advance. 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 shall, within three Business Days of
delivery to the Trustee (or the related Custodian, as the case may be) of a
Request for Release in the form of Exhibit M signed by a Servicing Officer,
release the Mortgage File to the related Servicer. Subject to the further
limitations set forth below, the related Servicer shall cause the Mortgage File
or documents so released to be returned to the Trustee (or the related
Custodian, as the case may be) when the need therefor by such Servicer no longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in the related Collection Account, in which case such Servicer shall
deliver to the Trustee (or the related Custodian, as the case may be) a Request
for Release in the form of Exhibit M, signed by a Servicing Officer.
If a Servicer at any time seeks to initiate a foreclosure proceeding
in respect of any Mortgaged Property as authorized by this Agreement, such
Servicer shall deliver or cause to be delivered to the Trustee, for signature,
as appropriate, any court pleadings, requests for trustee's sale or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage or
to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law or
in equity.
SECTION 3.13 Documents, Records and Funds in Possession of a
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, each
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the related Servicer from time to time required to be delivered to
the Trustee pursuant to the terms hereof and shall account fully to the Trustee
for any funds received by such Servicer or which otherwise are collected by such
Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan. All Mortgage Files and funds collected or held by, or under the
control of, a Servicer in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in a Collection Account,
shall be held by the related Servicer for and on behalf of the Trustee and shall
be and remain the sole and exclusive property of the Trustee, subject to the
applicable provisions of this Agreement. Each Servicer also agrees that it shall
not create, incur or subject any Mortgage File or any funds that are deposited
in the related Collection Account, Certificate Account or any related Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in
79
connection with, a Mortgage Loan, except, however, that such Servicer shall be
entitled to set off against and deduct from any such funds any amounts that are
properly due and payable to such Servicer under this Agreement.
SECTION 3.14 Servicing Fee.
As compensation for its services hereunder, each Servicer shall be
entitled to withdraw from the Collection Account or to retain from interest
payments on the related Mortgage Loans the amount of its Servicing Fee for each
Mortgage Loan, less any amounts in respect of its Servicing Fee payable by such
Servicer pursuant to Section 3.05(b)(vi). The Servicing Fee is limited to, and
payable solely from, the interest portion of such Scheduled Payments collected
by the related Servicer or as otherwise provided in Section 3.08.
Additional servicing compensation in the form of Ancillary Income
shall be retained by the related Servicer. Each Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder (including the payment of any expenses incurred in connection with any
Subservicing Agreement entered into pursuant to Section 3.02) and shall not be
entitled to reimbursement thereof except as specifically provided for in this
Agreement.
SECTION 3.15 Access to Certain Documentation.
Each Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinate
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the related
Mortgage Loans required by applicable regulations of the OTS and the FDIC. Such
access shall be afforded without charge, but only upon reasonable and prior
written request and during normal business hours at the offices designated by
such Servicer. Nothing in this Section shall limit the obligation of any
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of such Servicer to provide access as
provided in this Section as a result of such obligation shall not constitute a
breach of this Section. Nothing in this Section 3.15 shall require any Servicer
to collect, create, collate or otherwise generate any information that it does
not generate in its usual course of business.
SECTION 3.16 Annual Statement as to Compliance.
Each Servicer shall deliver to the Depositor, the Rating Agencies
and the Trustee on or before 120 days after the end of such Servicer's fiscal
year, commencing after its 2002 fiscal year, an Officer's Certificate stating,
as to the signer thereof, that (i) a review of the activities of such Servicer
during the preceding calendar year and of the performance of such Servicer under
this Agreement has been made under such officer's supervision, and (ii) to the
best of such officer's knowledge, based on such review, such Servicer has
materially fulfilled all its obligations under this Agreement throughout such
year, or, if there has been a material default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof and the action being taken by such Servicer to cure such
default.
80
SECTION 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 120 days after the end of each Servicer's fiscal year,
commencing after its 2002 fiscal year, each Servicer at its expense shall cause
a nationally or regionally recognized firm of independent public accountants
(who may also render other services to such Servicer, the Seller or any
affiliate thereof) which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Trustee and the Depositor to
the effect that such firm has examined certain documents and records relating to
the servicing of mortgage loans which such Servicer is servicing, including the
related Mortgage Loans, and that, on the basis of such examination, conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
with Accepted Servicing Practices, except for (a) such exceptions as such firm
shall believe to be immaterial, and (b) such other exceptions as shall be set
forth in such statement. In rendering such statement, such firm may rely, as to
matters relating to direct servicing of mortgage loans by Subservicers, upon
comparable statements for examinations conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Guide for HUD Approved Title II Approved Mortgagees and Loan Correspondent
Programs (rendered within one year of such statement) of independent public
accountants with respect to the related Subservicer. Copies of such statement
shall be provided by the Trustee to any Certificateholder upon request at the
related Servicer's expense, provided such statement is delivered by such
Servicer to the Trustee.
SECTION 3.18 Maintenance of Fidelity Bond and Errors and
Omissions Insurance.
Each Servicer shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the related Mortgage Loans ("Servicer Employees"). Any such Fidelity
Bond and Errors and Omissions Insurance Policy shall be in the form of the
Financial Institution Bond Form 24 - Fidelity Bond American International
Specialty Lines Insurance Policy Form ("43350 12/90") Mortgage Banker Broker E&O
and shall protect and insure the related Servicer against losses, including
forgery, theft, embezzlement, fraud, errors and omissions and negligent acts of
the Servicer Employees. Such Fidelity Bond and Errors and Omissions Insurance
Policy also shall protect and insure each Servicer against losses in connection
with the release or satisfaction of a related Mortgage Loan without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 3.18 requiring such Fidelity Bond and Errors and Omissions
Insurance Policy shall diminish or relieve a Servicer from its duties and
obligations as set forth in this Agreement. The minimum coverage under any such
bond and insurance policy shall be at least equal to the corresponding amounts
required by Xxxxxx Xxx. Upon the request of the Trustee, the related Servicer
shall cause to be delivered to the Trustee a certificate of insurance of the
insurer and the surety including a statement from the surety and the insurer
that such fidelity bond and insurance policy shall in no event be terminated or
materially modified without 30 days' prior written notice to the Trustee.
81
SECTION 3.19 Duties of the Credit Risk Manager.
The Depositor appoints The Murrayhill Company as Credit Risk
Manager. For and on behalf of the Depositor, and the Trustee, the Credit Risk
Manager will provide reports and recommendations concerning Mortgage Loans that
are past due, as to which there has been commencement of foreclosure, as to
which there has been forbearance in exercise of remedies which are in default,
as to which obligor is the subject of bankruptcy, receivership, or an
arrangement of creditors, or as to which have become REO Properties. Such
reports and recommendations will be based upon information provided to the
Credit Risk Manager pursuant to the Credit Risk Management Agreement and the
Credit Risk Manager shall look solely to the related Servicer for all
information and data (including loss and delinquency information and data) and
loan level information and data relating to the servicing of the Mortgage Loans.
If the Credit Risk Manager is no longer able to perform its duties hereunder,
the Depositor shall terminate the Credit Risk Manager and cause the appointment
of a successor Credit Risk Manager. Upon any termination of the Credit Risk
Manager or the appointment of a successor Credit Risk Manager, the Depositor
shall give written notice thereof to the Seller, the Servicers, the Trustee and
each Rating Agency. Notwithstanding the foregoing, the termination of the Credit
Risk Manager pursuant to this Section 3.19 shall not become effective until the
appointment of a successor Credit Risk Manager.
SECTION 3.20 Limitation Upon Liability of the Credit Risk Manager.
Neither the Credit Risk Manager, nor any of the directors, officers,
employees or agents of the Credit Risk Manager, shall be under any liability to
the Trustee, the Certificateholders or the Depositor for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, in reliance upon information provided by a Servicer under the Credit
Risk Management Agreements or of errors in judgment; provided, however, that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
under this Agreement or the Credit Risk Manager Agreements. The Credit Risk
Manager and any director, officer, employee or agent of the Credit Risk Manager
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, and may
rely in good faith upon the accuracy of information furnished by any Servicer
pursuant to the Credit Risk Management Agreements in the performance of its
duties thereunder and hereunder.
82
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICERS
SECTION 4.01 Advances by the Servicers.
Each Servicer shall deposit in a 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 Due
Period; provided however, that with respect to any Balloon Loan that is
delinquent on its maturity date, the related Servicer will not be required to
advance the related balloon payment but will be required to continue to make
Advances in accordance with this Section 4.01 with respect to such Balloon Loan
in an amount equal to an assumed scheduled payment that would otherwise be due
based on the original amortization schedule for that Mortgage Loan (with
interest at the Mortgage Rate less the Servicing Fee Rate). Each Servicer's
obligation to make such Advances as to any related Mortgage Loan will continue
through the last Scheduled Payment due prior to the payment in full of such
Mortgage Loan, or through the date that the related Mortgaged Property has, in
the judgment of such Servicer, been completely liquidated.
Each Servicer shall be obligated to make Advances in accordance with
the provisions of this Agreement; provided however, that such obligation with
respect to any related Mortgage Loan shall cease if such Servicer determines, in
its reasonable opinion, that Advances with respect to such Mortgage Loan are
Nonrecoverable Advances; provided that the related Servicer will be required to
make Advances until the earlier of (i) the time at which the related Mortgage
Loan becomes 120 days delinquent or (ii) the time at which the related Servicer
determines that such Advances with respect to such Mortgage Loan are
Nonrecoverable Advances. In the event that such Servicer determines that any
such Advances are Nonrecoverable Advances, such Servicer shall provide the
Trustee with a certificate signed by a Servicing Officer evidencing such
determination.
If an Advance is required to be made hereunder, the related Servicer
shall on the second Business Day immediately preceding the Distribution Date
immediately following the related Determination Date either (i) deposit in the
related 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 4.01, used by the related
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 related 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.
83
SECTION 4.02 Priorities of Distribution.
(a) On each Distribution Date, prior to making distributions to the
holders of the Certificates, the Trustee first, shall pay itself the Trustee's
Fee for such Distribution Date, and second, shall pay the Credit Risk Manager
the Credit Risk Manager Fee.
(b) With respect to the Available Funds, on each Distribution Date,
the Trustee shall withdraw such Available Funds from the Certificate Account and
based on the information provided to it by the Servicers, apply such funds to
distributions on the Certificates in the following order and priority and, in
each case, to the extent of such Available Funds remaining:
(i) On each Distribution Date, the Trustee shall distribute the
Interest Remittance Amount for such date in the following order of
priority:
A. to FSA, the FSA Premium for such Distribution Date;
B. to the Senior Certificates, pro rata, Current Interest and any
Carryforward Interest, as applicable, for each such Class and
such Distribution Date;
C. to FSA, any FSA Reimbursement Amount;
D. to the Class M-1 Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution
Date;
E. to the Class M-2 Certificates, Current Interest and any
Carryforward Interest for such Class and such Distribution
Date;
F. to the Class B-1A Certificates and Class B-1B Certificates,
pro rata, Current Interest and any Carryforward Interest for
each such Class and such Distribution Date;
G. On the Distribution Dates occurring in May 2002, June 2002 and
July 2002, to the Depositor an amount equal to the amount
received during the related Due Period which constitutes
Subsequent Mortgage Loan Interest.
H. for application as part of Monthly Excess Cashflow for such
Distribution Date as provided in clause (iv) of this Section
4.02(b), any Interest Remittance Amount remaining after
application pursuant to clauses A. through G. above.
(ii) On each Distribution Date (a) prior to the Stepdown Date or (b)
with respect to which a Trigger Event has occurred, the Trustee shall
distribute the Principal Payment Amount for such date in the following
order of priority:
84
A. commencing on the Distribution Date in August 2007, to the
Class P Certificates, until the Class Principal Balance of
such class has been reduced to zero;
B. first to the Class A-R Certificates, until the Class Principal
Balance thereof is reduced to zero, and then to the Class A-1,
Class A-2 and Class A-3 Certificates, concurrently on a pro
rata basis, based on their respective Class Principal
Balances, in each case until the Class Principal Balance of
each such class has been reduced to zero;
C. to FSA, any FSA Reimbursement Amount, to the extent not
otherwise paid pursuant to Section 4.02(b)(i);
D. to the Class M-1 Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
E. to the Class M-2 Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
F. to the Class B-1A Certificates and Class B-1B Certificates,
concurrently on a pro rata basis, based on their respective
Class Principal Balances, until the Class Principal Balance of
each such Class has been reduced to zero;
G. for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in clause (iv) of this Section
4.02(b), any Principal Payment Amount remaining after
application pursuant to clauses A. through F. above.
(iii) On each Distribution Date (a) on or after the Stepdown Date
and (b) with respect to which a Trigger Event has not occurred, the
Trustee shall distribute the Principal Payment Amount for such date in the
following order of priority:
A. commencing on the Distribution Date in August 2007 or
thereafter, to the Class P Certificates, until the Class
Principal Balance of such class has been reduced to zero;
B. to the Class A-1, Class A-2 and Class A-3 Certificates, the
Senior Principal Payment Amount for such Distribution Date,
concurrently on a pro rata basis, based on their respective
Class Principal Balances, in each case until the Class
Principal Balance of each such class has been reduced to zero;
C. to FSA, any FSA Reimbursement Amount, to the extent not
otherwise paid pursuant to Section 4.02(b)(i) or (ii);
D. to the Class M-1 Certificates, the Class M-1 Principal Payment
Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero;
85
E. to the Class M-2 Certificates, the Class M-2 Principal Payment
Amount for such Distribution Date, until the Class Principal
Balance of such Class has been reduced to zero;
F. to the Class B-1A Certificates and Class B-1B Certificates,
the applicable Class B Principal Payment Amount for such
Distribution Date, concurrently on a pro rata basis, based on
their respective Class Principal Balances, until the Class
Principal Balance of such Class has been reduced to zero; and
G. for application as part of Monthly Excess Cashflow for such
Distribution Date, as provided in clause (iv) of this Section
4.02(b), any Principal Payment Amount remaining after
application pursuant to clauses A. through F. above.
(iv) On each Distribution Date, the Trustee shall distribute the
Monthly Excess Cashflow for such date in the following order of priority:
A. (I) except for the first Distribution Date, until the
Overcollateralization Amount equals the Targeted
Overcollateralization Amount for such date, on each
Distribution Date (a) prior to the Stepdown Date or (b) with
respect to which a Trigger Event has occurred, to the extent
of Monthly Excess Interest for such Distribution Date, to the
Certificates, in the following order of priority:
(aa) first to the Class A-R and then to the Class A-1, Class
A-2 and Class A-3 Certificates, concurrently on a pro
rata basis, based on their respective Class Principal
Balances, in each case until the Class Principal Balance
of each such class has been reduced to zero;
(bb) to the Class M-1 Certificates, until the Class Principal
Balance of such Class has been reduced to zero;
(cc) to the Class M-2 Certificates, until the Class Principal
Balance of such Class has been reduced to zero; and
(dd) to the Class B-1A Certificates and Class B-1B
Certificates, concurrently on a pro rata basis, until
the Class Principal Balance of each such Class has been
reduced to zero.
(II) on each Distribution Date on or after the Stepdown Date
and with respect to which a Trigger Event has not occurred, to
fund any principal distributions required to be made on such
Distribution Date set forth above in clause (iii) above, after
giving effect to the distribution of the Principal Payment
Amount for such Distribution Date, in accordance with the
priorities set forth therein;
86
B. to FSA, any FSA Reimbursement Amount, to the extent not
otherwise paid pursuant to Section 4.02(b)(i), (ii) or (iii);
C. to the Class M-1 Certificates, any Deferred Amount for such
Class, with interest thereon at the Pass-Through Rate;
D. to the Class M-2 Certificates, any Deferred Amount for such
Class, with interest thereon at the Pass-Through Rate;
E. to the Class B-1A Certificates and Class B-1B Certificates,
concurrently on a pro rata basis, based on their respective
Class Principal Balances, any Deferred Amount for such Class,
with interest thereon at the Pass-Through Rate;
F. from amounts otherwise distributable to the Class X-1
Certificate, concurrently to the Class A-2 and Class A-3
Certificates, based on their respective amounts of Basis Risk
Shortfalls due, any applicable Basis Risk Shortfall for each
such Class;
G. from amounts otherwise distributable to the Class X-1
Certificate, to the Class M-1 Certificates, any applicable
Basis Risk Shortfall for such Class;
H. from amounts otherwise distributable to the Class X-1
Certificate, to the Class M-2 Certificates, any applicable
Basis Risk Shortfall for such Class;
I. from amounts otherwise distributable to the Class X-1
Certificate, concurrently to the Class B-1A Certificates and
Class B-1B Certificates, based on their respective amounts of
Basis Risk Shortfall due, any applicable Basis Risk Shortfall
for such Class;
J. from amounts otherwise distributable to the Class X-1
Certificate, to the Reserve Fund, the Required Reserve Fund
Deposit;
K. to the Class X-1 Certificate, the Class X-1 Distributable
Amount for such Distribution Date reduced by amounts
distributed pursuant to clause G of Section 4.02(b)(i) and
clauses F through I of Section 4.02(b)(iv) for such
Distribution Date, together with any amounts withdrawn from
the Reserve Fund for distribution to such Class X-1
Certificate pursuant to Sections 4.07(b) and (c) and the
amount of any Overcollateralization Release Amount for such
Distribution Date; and
L. to the Class A-R Certificate, any remaining amount.
(v) On each Distribution Date, the Trustee shall distribute to the
Holder of the Class P Certificate, the aggregate of all Prepayment
Premiums collected during the preceding Prepayment Period.
87
(vi) On the first Distribution Date only, the Trustee shall
distribute the Monthly Excess Cashflow for such date to the Class X-1
Certificate.
(c) On each Distribution Date, the Trustee shall distribute to the
Class A-1 Certificates and Class A-2 Certificates any Insured Payments received
from FSA to make Guaranteed Distributions on such Certificates.
SECTION 4.03 [Reserved]
SECTION 4.04 [Reserved]
SECTION 4.05 Allocation of Realized Losses.
On each Distribution Date, the Trustee shall determine the total of
the Applied Loss Amount, if any, for such Distribution Date. The Applied Loss
Amount for any Distribution Date shall be applied by reducing the Class
Principal Balance of each Class of Subordinate Certificates beginning with the
Class of Subordinate Certificates then outstanding with the lowest relative
payment priority, in each case until the respective Class Principal Balance
thereof is reduced to zero. Any Applied Loss Amount allocated to a Class of
Subordinate Certificates shall be allocated among the Subordinate Certificates
of such Class in proportion to their respective Percentage Interests.
All Realized Losses on the Mortgage Loans shall be allocated on each
Distribution Date to the following REMIC 1 Regular Interests: first, up to an
aggregate amount equal to the excess of (a) the REMIC 1 Interest Loss Allocation
Amount over (b) Prepayment Interest Shortfalls (to the extent not covered by
Compensating Interest) relating to the Mortgage Loans for such Distribution
Date, 98% to Uncertificated Accrued Interest payable to REMIC 1 Regular
Interests LT- 1 and LT-1X, pro rata, and 2% to Uncertificated Accrued Interest
payable to REMIC 1 Regular Interests LT-1 and LT-1X, pro rata; second, up to an
aggregate amount equal to the REMIC 1 Principal Loss Allocation Amount, 98% to
the Uncertificated Principal Balances of REMIC 1 Regular Interests LT-1 and
LT-X, pro rata, and 2% to the Uncertificated Principal Balances of REMIC 1
Regular Interests LT-1 and LT-X, pro rata; third, 98% to the Uncertificated
Principal Balances of REMIC 1 Regular Interests LT-1 and LT-1X, pro rata, 1% to
the Uncertificated Principal Balances of REMIC 1 Regular Interests LT-8 and
LT-8X, pro rata, and 1% to the Uncertificated Principal Balances of REMIC 1
Regular Interests LT-9 and LT-9X, pro rata, until the Uncertificated Principal
Balances of REMIC 1 Regular Interests LT-8 and LT-8X have been reduced to zero;
fourth, 98% to the Uncertificated Principal Balances of REMIC 1 Regular
Interests LT-1 and LT-1X, pro rata, 1% to the Uncertificated Principal Balances
of REMIC 1 Regular Interests LT-7 and LT-7X, pro rata, and 1% to the
Uncertificated Principal Balances of REMIC 1 Regular Interests LT-9 and LT-9X,
pro rata, until the Uncertificated Principal Balances of REMIC 1 Regular
Interests LT-7and LT-7X have been reduced to zero; fifth, 98% to the
Uncertificated Principal Balances of REMIC 1 Regular Interests LT-1 and LT-1X,
pro rata, 1% to the Uncertificated Principal Balances of REMIC 1 Regular
Interests LT-6 and LT-6X, pro rata, and 1% to the Uncertificated Principal
Balances of REMIC 1 Regular Interests LT-9 and LT-9X, pro rata, until the
Uncertificated Principal Balances of REMIC 1 Regular Interests LT-6and LT-6X
have been reduced to zero; and sixth, 98% to the Uncertificated Principal
Balances of REMIC 1 Regular Interests LT-1 and LT-1X, pro rata, 1% to
88
the Uncertificated Principal Balances of REMIC 1 Regular Interests LT-5 and
LT-5X, pro rata, and 1% to the Uncertificated Principal Balances of REMIC 1
Regular Interests LT-9 and LT-9X, pro rata, until the Uncertificated Principal
Balances of REMIC 1 Regular Interests LT-5and LT-5X have been reduced to zero;
provided, however, that with respect to the first three Distribution Dates,
Realized Losses relating to the Initial Mortgage Loans shall be allocated to the
REMIC 1 Regular Interests not bearing a designation ending in "X," and Realized
Losses relating to the Subsequent Mortgage Loans shall be allocated to REMIC 1
Regular Interests bearing a designation ending in "X," in each case in the order
and priority set forth above, until the Uncertificated Principal Balances
thereof have been reduced to zero.
SECTION 4.06 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and cause to be forwarded by first class mail to the Depositor, each Servicer
and each Rating Agency, and make available on the website maintained by the
Trustee at xxxx://xxx.xxxxxxxx.xxx/xxxxxx, a statement setting forth with
respect to the related distribution for each Certificate Group:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein, and the amount of the distribution
made to the holders of the Class P Certificates allocable to Prepayment
Penalties;
(ii) 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;
(iii) the Class Principal Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(iv) the aggregate Stated Principal Balance of the Mortgage Loans;
(v) the amount of the Servicing Fees, the aggregate Trustee Fee, the
aggregate Credit Risk Manager Fee, the FSA Premium and Prepayment
Penalties, if applicable, with respect to such Distribution Date;
(vi) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(vii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the end of the preceding month;
(viii)the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure) (1) 31 to 60
days, (2) 61 to 90 days and (3) 91 or more days and (B) in foreclosure and
delinquent (1) 31 to 60 days, (2) 61 to 90
89
days and (3) 91 or more days, as of the close of business on the last day
of the calendar month preceding such Distribution Date, assuming twelve
thirty day months;
(ix) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(x) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(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 Rolling Three Month Delinquency Rate for the Mortgage
Loans for such Distribution Date;
(xiv) the amount on deposit in the Pre-Funding Account; and
(xv) the amount of any Insured Payment.
Assistance in using the website can be obtained by calling the
Trustee's customer service desk at 000-000-0000. Parties that are unable to use
the website are entitled to have a paper copy mailed to them via first class
mail by written notice to the Trustee at its Corporate Trust Office. The
Trustee's responsibility for disbursing the above information to the
Certificateholders for each Certificate Group is limited to the availability,
timeliness and accuracy of the information derived from the Servicers. The
foregoing information shall be reported to the Trustee each month on or before
the Servicer Data Remittance Date.
(b) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at any
time during the calendar year was a Certificateholder, a statement containing
the information set forth in, clauses (a)(i), (a)(ii) and (a)(vii) of this
Section 4.06 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
90
SECTION 4.07 Distributions on the REMIC 1 Regular Interests.
(a) On each Distribution Date, the Trustee shall cause in the
following order of priority, the following amounts to be distributed by REMIC 1
to REMIC 2 on account of the REMIC 1 Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class A-R
Certificates (in respect of the Class R-1 Interest), as the case may be:
(i) first, to the extent of the sum of Available Funds for such
Distribution Date, to Holders of REMIC 1 Regular Interests LT-1, LT-1X,
LT-2, LT-2X, LT-3, LT-3X, LT-4, LT-4X, LT-5, LT-5X, LT-6, LT-6X, LT-7,
LT-7X, LT-8, LT-8X, LT-R, LT-RX, LT-P and LT-PX, pro rata, in an amount
equal to (A) the Uncertificated Accrued Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates. Amounts payable as Uncertificated Accrued
Interest in respect of REMIC 1 Regular Interests LT-9 and LT-9X shall be
reduced, pro rata, when the REMIC 1 Overcollateralization Amount is less
than the REMIC 1 Overcollateralization Target Amount, by the lesser of (x)
the amount of such difference and (y) the REMIC 1 Regular Interest LT-9
Maximum Interest Deferral Amount;
(ii) second, to the Holders of REMIC 1 Regular Interests, in an
amount equal to the remainder of the Available Funds for such Distribution
Date after the distributions made pursuant to clause (i) above, allocated
as follows:
(a) to the Holders of REMIC 1 Regular Interests LT-R and
LT-RX, pro rata, an amount equal to the amount of principal
distributed to the holder of the Corresponding Certificate on such
Distribution Date pursuant to Section 4.02;
(b) to the Holders of REMIC 1 Regular Interests LT-P and
LT-PX, pro rata, an amount equal to the sum of (i) the amount of
principal distributed to the holder of the Corresponding Certificate
on such Distribution Date pursuant to Section 4.02(b)(ii)A. and (ii)
the amount distributed to the holder of the Corresponding
Certificate on such Distribution Date pursuant to Section
4.02(b)(v).
(iii) third, to the Holders of REMIC 1 Regular Interests, in an
amount equal to the remainder of the Available Funds for such Distribution
Date after the distributions made pursuant to clauses (i) and (ii) above,
allocated as follows:
(a) 98% of such remainder, to the Holders of REMIC 1 Regular
Interests LT-1 and LT-1X, pro rata, until the Uncertificated
Principal Balances of such Uncertificated REMIC 1 Regular Interests
are reduced to zero;
(b) 1.00% of such remainder, to the Holders of REMIC 1 Regular
Interests LT-2, LT-2X, LT-3, LT-3X, LT-4, LT-4X, LT-5, LT-5X, LT-6,
LT-6X, XX- 0, XX-0X, XX-0, and LT-8X, pro rata, in the same
proportion as principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Principal Balances of such
REMIC 1 Regular Interests are reduced to zero;
91
(c) 1.00% of such remainder, to the Holders of REMIC 1 Regular
Interests LT-9 and LT-9X, pro rata, until the Uncertificated
Principal Balances of such REMIC 1 Regular Interests are reduced to
zero; then
(d) any remaining amount to the Holders of the Class A-R
Certificates (in respect of the Class R-1 Interest);
provided, however, that any principal payments that are attributable to an
Overcollateralization Release Amount shall be allocated 98.00% to Holders of
REMIC 1 Regular Interests LT-1 and LT- 1X, pro rata, and 2.00% to Holders of
REMIC 1 Regular Interest LT-9 and LT-9X, pro rata.
Notwithstanding the foregoing clauses (i), (ii) and (iii), with respect to the
first three Distribution Dates, amounts relating to the Initial Mortgage Loans
shall be distributed to the REMIC 1 Regular Interests not bearing a designation
ending in "X," and amounts relating to the Subsequent Mortgage Loans shall be
distributed to the REMIC 1 Regular Interests bearing a designation ending in
"X," in each case in the order and priority set forth above.
SECTION 4.08 Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of the Holders of the Class X-0, Xxxxx X-0,
Class M-1, Class M-2, Class B-1A and Class B-1B Certificates, the Reserve Fund.
The Reserve Fund shall be an Eligible Account, and funds on deposit therein
shall be held separate and apart from, and shall not be commingled with, any
other moneys, including without limitation, other moneys held by the Trustee
pursuant to this Agreement.
(b) On the Closing Date, $5,000 will be deposited by the Depositor
into the Reserve Fund. On each Distribution Date, the Trustee shall transfer
from the Certificate Account to the Reserve Fund pursuant to Section
4.02(b)(iv)(J)., the Required Reserve Fund Deposit. Amounts on deposit in the
Reserve Fund may be withdrawn by the Trustee in connection with any Distribution
Date to fund the amounts required to be distributed to holders of the Class X-0,
Xxxxx X-0, Class M-1, Class M-2, Class B-1A and Class B-1B Certificates pursuant
to Sections 4.02(b)(iv) F. through I. 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 Reserve Fund in excess of the Required Reserve Fund
Amount shall be distributed to the Class X-1 Certificateholder pursuant to
Section 4.02(b)(iv)K.
(c) Amounts distributed pursuant to clauses F through I of Section
4.02(b)(iv) for such Distribution Date shall be treated for federal income tax
purposes as amounts distributed by REMIC 2 to the Class X-1 Certificateholders.
(d) Funds in the Reserve Fund may be invested in Eligible
Investments by the Trustee at the direction of the Majority in Interest Holder
of the Class X-1 Certificate. Any net investment earnings on such amounts shall
be payable to the Holder of the Class X-1 Certificate. Amounts held in the
Reserve Fund from time to time shall continue to constitute assets of the Trust
Fund, but not of REMIC 1 or REMIC 2, until released from the Reserve Fund
pursuant to this
92
Section 4.08. The Reserve Fund constitutes an "outside reserve fund" within the
meaning of Treasury Regulation ss.1.860G-2(h) and is not an asset of REMIC 1 or
REMIC 2. For all federal tax purposes, amounts transferred by the REMIC 1 or
REMIC 2 to the Reserve Fund shall be treated as amounts distributed by REMIC 1
or REMIC 2 to the Class X-1 Certificateholders. The Class X-1 Certificate shall
evidence ownership of the Reserve Fund for federal tax purposes and the Holders
thereof shall direct the Trustee in writing as to the investment of amounts
therein. In the absence of such written direction, all funds in the Reserve Fund
shall be invested by the Trustee in the Chase Vista Prime Money Market Fund. The
Trustee shall have no liability for losses on investments in Eligible
Investments made pursuant to this Section 4.08(d) (other than as obligor on any
such investments). Upon termination of the Trust Fund, any amounts remaining in
the Reserve Fund shall be distributed to the Holder of the Class X-1 Certificate
in the same manner as if distributed pursuant to Section 4.02(b)(iv)K. hereof.
(e) On the Distribution Date immediately after the Distribution Date
on which the aggregate Class Principal Balance of the Class A-2, Class A-3,
Class M-1, Class M-2, Class B- 1A and Class B-1B Certificates equals zero, any
amounts on deposit in the Reserve Fund not payable on the Class X-0, Xxxxx X-0,
Class M-1, Class M-2, Class B-1A or Class B-1B Certificates shall be distributed
to the Holder of the Class X-1 Certificate in the same manner as if distributed
pursuant to Section 4.02(b)(iv)K. hereof.
SECTION 4.09 Prepayment Penalties.
Notwithstanding anything in this Agreement to the contrary, in the
event of a Principal Prepayment of a Mortgage Loan, the related Servicer may not
waive any Prepayment Penalty or portion thereof required by the terms of the
related Mortgage Note unless (i) the Mortgage Loan is in default or foreseeable
default and such waiver (a) is standard and customary in servicing similar
mortgage loans to the Mortgage Loans and (b) would, in the reasonable judgment
of the related Servicer, maximize recovery of total proceeds taking into account
the value of such Prepayment Penalty and the related Mortgage Loan or (ii)(A)
the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium,
receivership, or other similar law relating to creditors' rights generally or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law. For the avoidance of doubt, the related Servicer may waive a
Prepayment Penalty in connection with a short sale or short payoff on a
defaulted Mortgage Loan. If the related Servicer has waived all or a portion of
a Prepayment Penalty relating to a Principal Prepayment, other than as provided
above, the related Servicer shall deliver to the Trustee no later than the
Business Day immediately preceding the next Distribution Date, for deposit into
the Certificate Account the amount of such Prepayment Penalty (or such portion
thereof as had been waived) for distribution in accordance with the terms of
this Agreement; provided, however, the related Servicer shall not have any
obligation to pay the amount of any uncollected Prepayment Penalty under this
Section 4.09 if such Servicer did not have a copy of the related Mortgage Note,
such Servicer requested via email a copy of the same from the Trustee and the
Trustee failed to provide such a copy within two (2) Business Days of receipt of
such request. If the related Servicer has waived all or a portion of a
Prepayment Penalty for any reason, it shall promptly notify the Trustee thereof
and shall include such information in any monthly reports it provides the
Trustee.
93
SECTION 4.10 Policy Matters.
(a) As soon as possible, and in no event later than 11:00 a.m., New
York time, on the third Business Day immediately preceding each Distribution
Date, based solely on the information provided to the Trustee by the Servicers
on or before the related Determination Date, the Trustee shall determine the
amount of funds available for such Distribution Date minus the amount of any FSA
Premium and any Trustee Fee to be paid on such Distribution Date.
If for any Distribution Date the Trustee determines that the funds
available for distribution to the Holders of the Insured Certificates pursuant
to Section 4.02 will be insufficient to pay the Guaranteed Distribution, the
Trustee shall determine the amount of any such deficiency and shall complete a
notice of the amount of such deficiency in the form set forth as Exhibit A to
the FSA Policy (the "Notice") and shall submit such Notice to the FSA and Fiscal
Agent (as defined in the FSA Policy) no later than 12:00 noon, New York time, on
the third Business Day preceding such Distribution Date. The Notice shall
constitute a claim for an Insured Payment pursuant to the FSA Policy. Upon
receipt of the Insured Payment, on behalf of the Holders of the Insured
Certificates, the Trustee shall deposit such Insured Payment in the FSA Account
and shall distribute such Insured Payment only in accordance with Section 4.02.
The Trustee shall receive as attorney-in-fact of each Holder of an
Insured Certificate any Insured Payment from FSA and disburse the same to each
Holder of an Insured Certificate, in accordance with the provisions of Section
4.02. Insured Payments disbursed by the Trustee from proceeds of the FSA Policy
shall not be considered payment by the Trust nor shall such payments discharge
the obligation of the Trust with respect to such Insured Certificates, and FSA
shall become the owner of such unpaid amounts due from the Trust in respect of
such Insured Payments as the deemed assignee of the Holders of such Certificates
and shall be entitled to receive the FSA Reimbursement Amount pursuant to
Section 4.02. The Trustee hereby agrees, and each Holder of an Insured
Certificate by its acceptance of an Insured Certificate is deemed to agree, in
each case for the benefit of FSA, that it and they recognize that to the extent
that FSA makes Insured Payments, either directly or indirectly (as by paying
through the Trustee), to the Insured Certificateholders, FSA will be entitled to
receive the FSA Reimbursement Amount pursuant to Section 4.02.
It is understood and agreed that the intention of the parties is
that FSA shall not be entitled to reimbursement on any Distribution Date for
amounts previously paid by it unless on such Distribution Date the Holders of
the Insured Certificates, shall also have received the full amount of the
Guaranteed Distributions for such Distribution Date.
(b) In the event the Trustee receives a certified copy of an order
of the appropriate court that any payment of principal or interest on an Insured
Certificate has been voided in whole or in part as a preference payment under
applicable bankruptcy law, the Trustee shall (i) promptly notify FSA and the
Fiscal Agent (as defined in the FSA Policy), if any, and (ii) comply with the
provisions of the FSA Policy to obtain payment by FSA of such voided payment. In
addition, the Trustee shall mail notice to all Holders of the Insured
Certificates so affected that, in the event that any such Holder's scheduled
payment is so recovered, such Holder will be entitled to payment pursuant to the
terms of the FSA Policy, a copy of which shall be made available to such Holders
by the Trustee. The Trustee shall furnish to FSA and the Fiscal Agent (as
defined in the FSA
94
Policy), if any, its records listing the payments on the affected Insured
Certificates, if any, that have been made by the Trustee and subsequently
recovered from the affected Holders, and the dates on which such payments were
made by the Trustee.
(c) At the time of the execution and delivery of this Agreement, the
Trustee shall establish separate special purpose trust accounts in the name of
the Trustee for the benefit of Holders of the Insured Certificates referred to
herein as the "FSA Accounts" and over which the Trustee shall have exclusive
control and sole right of withdrawal. The FSA Accounts shall be Eligible
Accounts. The Trustee shall deposit any Insured Payment made under the FSA
Policy in the applicable FSA Account and thereafter into the Certificate Account
for distribution of such amount only for purposes of payment to Holders of the
Insured Certificates of Guaranteed Distributions for the Insured Certificates
for which a claim was made and such amount may not be applied to satisfy any
other liability or any cost or expense of the Trustee or the Trust. Insured
Payments made under the FSA Policy shall be disbursed by the Trustee to Holders
of the Insured Certificates in the same manner as distributions on the Holders
of the Insured Certificates are made under Section 4.02. It shall not be
necessary for such distributions to be made by checks or wire transfers separate
from the check or wire transfer used to pay Guaranteed Distributions with other
funds available to make such distributions. However, the amount of any Insured
Payments made on the Insured Certificates to be paid from funds transferred from
the applicable FSA Account shall be noted in the Certificate Register and in the
statements to be furnished to Holders of the Certificates pursuant to Section
4.06 hereof. Funds held in the FSA Accounts shall not be invested by the
Trustee.
(d) On any Distribution Date with respect to which a claim has been
made under the FSA Policy, the amount of any Insured Payment received by the
Trustee as a result of any claim under the FSA Policy and which is required to
make distributions on the Insured Certificates equal to Guaranteed Distributions
on the Insured Certificates, on such Distribution Date, shall be withdrawn from
the related FSA Account, deposited into the Certificate Account and applied
directly by the Trustee, together with all other funds to be withdrawn from the
Certificate Account, to the payment in full of Guaranteed Distributions on the
Insured Certificates. Any funds remaining in each FSA Account on the first
Business Day following a Distribution Date shall be remitted in immediately
available funds to FSA, pursuant to the instructions of FSA, by the end of such
Business Day. FSA shall have the right to inspect such records at reasonable
times during normal business hours upon reasonable prior written notice to the
Trustee.
(e) The Trustee shall promptly notify FSA of either of the following
as to which a Responsible Officer of the Trustee has actual knowledge: (A) the
commencement of any proceeding by or against the Depositor commenced under the
Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership,
rehabilitation or similar law (an "Insolvency Proceeding") and (B) the making of
any claim in connection with any Insolvency Proceeding seeking the avoidance as
a preferential transfer under the Bankruptcy Code (a "Preference Claim") of any
distribution made with respect to the Insured Certificates. Each Holder of
Insured Certificates, by its purchase of Insured Certificates, the Seller, the
Servicers and the Trustee hereby agree that FSA (so long as there is no
continuing Financial Security Default) may at any time during the continuation
of any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim, including, without limitation, (i) the direction of any
appeal of any order relating to such Preference Claim and (ii) the posting of
any surety, supersedeas or performance bond pending any such appeal.
95
In addition and without limitation of the foregoing, FSA shall be subrogated to
the rights of the Trustee and each Holder of an Insured Certificate in the
conduct of any Preference Claim, including, without limitation, all rights of
any party to an adversary proceeding action with respect to any court order
issued in connection with any such Preference Claim.
(f) The Trustee shall keep complete and accurate records in respect
of (i) all funds remitted to it by FSA and deposited into the FSA Account and
(ii) the allocation of such funds to payments of interest and principal in
respect of any Insured Certificates. FSA shall have the right to inspect such
records at reasonable times during normal business hours upon one Business Day's
prior notice to the Trustee.
(g) The Trustee acknowledges, and each Holder of an Insured
Certificate by its acceptance of the Insured Certificate agrees, that, without
the need for any further action on the part of FSA or the Trustee, to the extent
FSA makes payments, directly or indirectly, on account of principal of or
interest on any Insured Certificates, FSA will be fully subrogated to the rights
of the Holders of such Insured Certificates to receive such principal and
interest from the Trust Fund. The Holders of the Insured Certificates, by
acceptance of the Insured Certificates, assign their rights as Holders of the
Insured Certificates to the extent of FSA's interest with respect to amounts
paid under the FSA Policy. Anything herein to the contrary notwithstanding,
solely for purposes of determining FSA's rights, as applicable, as subrogee for
payments distributable pursuant to Section 4.02, any payment with respect to
principal of or interest on any of the Insured Certificates which is made with
moneys received pursuant to the terms of the FSA Policy shall not be considered
payment of such Insured Certificates from the Trust Fund and shall not result in
the payment of or the provision for the payment of the principal of or interest
on such Certificates except to the extent such payment has been reimbursed to
FSA pursuant to the terms hereof.
(h) The Trustee and the Servicers shall cooperate in all respects
with any reasonable request by FSA for action to preserve or enforce FSA's
rights or interests under this Agreement without limiting the rights or
affecting the interests of the Holders as otherwise set forth herein.
(i) For so long as there is no continuing Financial Security
Default, each Holder of an Insured Certificate agrees that FSA shall be treated
by the Depositor, the Seller, each Servicer and the Trustee as if FSA were the
holder of all of the Insured Certificates for the purpose (and solely for the
purpose) of the giving of any consent, the making of any direction or the
exercise of any voting or other control rights otherwise given to the Insured
Certificateholders hereunder and the Holders of the Insured Certificates shall
only exercise such rights with the prior written consent of FSA.
(j) All notices, statements, reports, certificates or opinions
required by this Agreement to be sent to the Trustee, the Rating Agencies or the
Insured Certificateholders (including without limitation the reports prepared
pursuant to Sections 3.16 and 3.17) shall also be sent at such time to FSA at
Financial Security Assurance Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Transaction Oversight.
96
(k) Upon a Responsible Officer of the Trustee or the Trustee
becoming aware of the occurrence of an Event of Default, the Trustee shall
promptly notify FSA of such Event of Default.
(l) Each Servicer shall designate at least one FSA Contact Person
who shall be available to FSA to provide reasonable access to information
regarding the Mortgage Loans. The initial FSA Contact Persons are the Servicing
Officers.
(m) The Trustee shall surrender the FSA Policy to FSA for
cancellation upon the reduction of the Class Principal Balance of the Insured
Certificates to zero.
(n) All references herein to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the FSA Policy.
FSA shall be an express third-party beneficiary of this Agreement,
entitled to enforce the provisions hereof as if a party hereto.
97
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. 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.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if (i) such Holder has
so notified the Trustee at least five Business Days prior to the related Record
Date and (ii) such Holder shall hold (A) a Notional Amount Certificate, (B) 100%
of the Class Principal Balance of any Class of Certificates or (C) Certificates
of any Class with aggregate principal Denominations of not less than $1,000,000
or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer upon the written order of the
Depositor. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time such signatures were affixed, authorized to
sign on behalf of the Trustee shall bind the Trustee, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
countersignature and delivery of any 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 countersigned
by the Trustee by manual signature, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their countersignature. On the Closing Date, the
Trustee shall countersign the Certificates to be issued at the written direction
of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restriction or transfer imposed under
Article V of this Agreement or under applicable law with respect to any transfer
of any Certificate, or any interest therein, other than to require delivery of
the certification(s) and/or opinions of counsel described in Article V
applicable with respect to changes in registration of record ownership of
Certificates in the Certificate Register. The Trustee shall have no liability
for transfers, including transfers made through the book-entry facilities of the
Depository or between or among Depository Participants or beneficial owners of
the Certificates made in violation of applicable restrictions.
98
SECTION 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.06, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c) below
and to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of transfer of
any Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
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.
All Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private 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 state securities laws. 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 Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit J (the "Transferor Certificate") and
(i) deliver a letter in substantially the form of either Exhibit K (the
"Investment Letter") or Exhibit L (the "Rule 144A Letter") or (ii) there shall
be delivered to the Trustee at the expense of the transferor an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities 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 Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Servicers shall cooperate
with the Depositor in providing the Rule 144A information referenced in
99
the preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Seller and the Servicers 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.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the transferee
of such Certificate, acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate or a Residual
Certificate, such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit K
or Exhibit L, as applicable), to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA or a plan
subject to Section 4975 of the Code, nor a person acting on behalf of any such
plan or arrangement nor using the assets of any such plan or arrangement to
effect such transfer or (ii) in the case of any such ERISA-Restricted
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee, which Opinion of Counsel shall not be an expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such ERISA-Restricted 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
Trustee or the Servicers to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Private
Certificate or a Residual Certificate, in the event the representation letter
referred to in the preceding sentence is not furnished, such representation
shall be deemed to have been made to the Trustee by the transferee's (including
an initial acquiror's) acceptance of the ERISA-Restricted Certificates.
Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA-Restricted Certificate to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the delivery to the Trustee of an
Opinion of Counsel satisfactory to the Trustee as described above shall be void
and of no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA- Restricted Certificate that is in
fact not permitted by this Section 5.02(b) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
100
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Residual Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel,
101
which Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee,
the Seller or the Servicers, to the effect that the elimination of such
restrictions will not cause the Trust Fund hereunder to fail to qualify as a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another Person.
Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is not
a Permitted Transferee and (b) to provide for a means to compel the Transfer of
a Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, (y) the Depositor at its option advises
the Trustee in writing that it elects to terminate the book-entry system through
the Depository or (z) after the occurrence of an Event of Default, Certificate
Owners representing at least 51% of the Certificate Balance of the Book-Entry
Certificates together advise the Trustee and the Depository through the
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Certificate
Owners, the Trustee shall notify all Certificate Owners, through the Depository,
of the occurrence of any such event and
102
of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Sellers, the
Servicers, the Depositor or the Trustee shall be liable for any delay in
delivery of such instruction and each may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide the
Trustee with an adequate inventory of certificates to facilitate the issuance
and transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder; provided that the Trustee shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
SECTION 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Trustee such security
or indemnity as may be required by it to hold it harmless, then, in the absence
of notice to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, countersign and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with the
issuance of any new Certificate under this Section 5.03, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.04 Persons Deemed Owners.
The Servicers, the Trustee and any agent of the Servicers or the
Trustee may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and none of the
Servicers, the Trustee or any agent of the Servicers or the Trustee shall be
affected by any notice to the contrary.
SECTION 5.05 Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or a Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicers or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
103
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense
an office or offices or agency or agencies in New York, New York where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee initially designates its Corporate Trust Office for such purposes. The
Trustee will give prompt written notice to the Certificateholders of any change
in such location of any such office or agency.
104
ARTICLE VI
THE DEPOSITOR, THE SELLER AND THE SERVICERS
SECTION 6.01 Respective Liabilities of the Depositor, the Sellers
and the Servicers.
The Depositor, the Seller and each Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
SECTION 6.02 Merger or Consolidation of the Depositor, the Seller
or a Servicer.
The Depositor, the Seller and each Servicer will each keep in full
effect its existence, rights and franchises as a corporation under the laws of
the United States or under the laws of one of the states thereof or as a
federally chartered savings bank organized under the laws of the United States
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.
Notwithstanding the foregoing, the Seller or a Servicer may be merged or
consolidated into another Person in accordance with the following paragraph.
Any Person into which the Depositor, the Seller or a Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor, the Seller or a Servicer shall be a party, or any person
succeeding to the business of the Depositor, the Seller or a Servicer, shall be
the successor of the Depositor, the Seller or a 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 with
respect to a merger or consolidation of a Servicer shall be an institution which
is a Xxxxxx Xxx or Xxxxxxx Mac approved company in good standing. In addition to
the foregoing, there must be delivered to the Trustee a letter from each of the
Rating Agencies, to the effect that such merger, conversion or consolidation of
a Servicer will not result in a disqualification, withdrawal or downgrade of the
then current rating of any of the Certificates.
SECTION 6.03 Limitation on Liability of the Depositor, the
Seller, the Servicers and Others.
None of the Depositor, the Seller, any Servicer nor any of the
directors, officers, employees or agents of the Depositor, the Seller or any
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 Seller, any Servicer or any such
Person against any breach of representations or warranties made by it herein or
protect the Depositor, the Seller, any Servicer or any such Person from any
liability which would otherwise be imposed by reasons of willful misfeasance,
bad faith or negligence in the performance of duties or by reason of reckless
disregard
105
of obligations and duties hereunder. The Depositor, the Seller, each Servicer
and any director, officer, employee or agent of the Depositor, the Seller or a
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.
None of the Depositor, the Seller or any Servicer shall be under any obligation
to appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that any of the Depositor, the Seller
or any Servicer may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Seller and each Servicer shall be entitled to
be reimbursed therefor out of the Collection Account. Each Servicer's right to
indemnity or reimbursement pursuant to this Section 6.03 shall survive the
resignation or termination of such Servicer as set forth herein.
SECTION 6.04 Limitation on Resignation of a Servicer.
(a) Subject to Section 6.04(b) below, a Servicer shall not resign
from the obligations and duties hereby imposed on it except (a)(i) upon
appointment, pursuant to the provisions of Section 7.02, of a successor servicer
which (x) has a net worth of not less than $10,000,000 and (y) is a Xxxxxx Xxx
or Xxxxxxx Mac approved company in good standing, (ii) receipt by the Trustee of
a letter from each Rating Agency that such a resignation and appointment will
not result in a qualification, withdrawal or downgrading of the then current
rating of any of the Certificates and (iii) receipt by FSA of oral confirmation
from each Rating Agency that the rating assigned to any of the Certificates is
given without regard to the FSA Policy, or (b) upon determination that its
duties hereunder are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of a Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
servicer shall have assumed such Servicer's responsibilities, duties,
liabilities and obligations hereunder and the requirements of Section 7.02 have
been satisfied.
(b) Notwithstanding the foregoing, the Seller, as owner of the
servicing rights with respect to the Wilshire Serviced Loans, or any subsequent
owner of such servicing rights, shall be entitled to require that Wilshire
resign and appoint a successor servicer with respect to the Wilshire Serviced
Loans; provided that such entity delivers to the Trustee the letter required by
Section 6.04(a)(ii) above.
106
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
"Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by a Servicer to make any deposit or payment
required pursuant to this Agreement (including but not limited to Advances
to the extent required under Section 4.01) which continues unremedied for
a period of one Business Day after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to
such Servicer by the Trustee or the Depositor, or to such Servicer and the
Trustee by the Holders of Certificates having not less than 25% of the
Voting Rights evidenced by the Certificates; or
(ii) any failure by a Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
such Servicer set forth in this Agreement, or if any of the
representations and warranties of such Servicer in Section 2.03(b) proves
to be untrue in any material respect, which failure or breach continues
unremedied for a period of 30 days after the date on which written notice
of such failure or breach, requiring the same to be remedied, shall have
been given to such Servicer by the Trustee or the Depositor, or to such
Servicer and the Trustee by the Holders of Certificates having not less
than 25% of the Voting Rights evidenced by the Certificates; or
(iii) failure by a Servicer to maintain, if required, its license to
do business in any jurisdiction where the related Mortgaged Property is
located; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
a Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 consecutive days; or
(v) a Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to such
Servicer or of or relating to all or substantially all of its property; or
(vi) a Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
or commence a voluntary case under, any applicable insolvency, bankruptcy
or reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or cease its
normal business operations for three Business Days.
107
Other than an Event of Default resulting from a failure of a
Servicer to make any Advance, if an Event of Default shall occur, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Trustee may, or at the direction of the Holders of Certificates
evidencing not less than 51% of the Voting Rights evidenced by the Certificates,
the Trustee shall by notice in writing to such Servicer (with a copy to each
Rating Agency), terminate all of the rights and obligations of such Servicer
under this Agreement and in and to the related Mortgage Loans and the proceeds
thereof, other than its rights as a Certificateholder hereunder. If an Event of
Default results from the failure of a Servicer to make an Advance, the Trustee
shall, by notice in writing to such Servicer and the Depositor (with a copy to
each Rating Agency), terminate all of the rights and obligations of such
Servicer under this Agreement and in and to the related Mortgage Loans and the
proceeds thereof, other than its rights as a Certificateholder hereunder.
Upon receipt by a Servicer of such written notice of termination,
all authority and power of such Servicer under this Agreement, whether with
respect to the related Mortgage Loans or otherwise, shall pass to and be vested
in the Trustee or its nominee. Upon written request from the Trustee, such
Servicer shall prepare, execute and deliver to the successor entity designated
by the Trustee any and all documents and other instruments, place in such
successor's possession all related Mortgage Files, and do or cause to be done
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, including but not limited to the transfer and endorsement
or assignment of the related Mortgage Loans and related documents, at such
Servicer's sole expense. Each Servicer shall cooperate with the Trustee and such
successor in effecting the termination of such Servicer's responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by such Servicer to the Collection Account or Escrow Account or thereafter
received with respect to the related Mortgage Loans. The Trustee shall thereupon
make any Advance. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of such Servicer, as attorney- in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the related Mortgage Loans and related documents, or otherwise.
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time a Servicer receives a notice of termination
pursuant to Section 7.01 of this Agreement or the resignation of such Servicer
pursuant to Section 6.04, the Trustee shall, subject to and to the extent
provided herein, be the successor to such Servicer, but only in its capacity as
servicer under this Agreement, and not in any other, and the transactions set
forth herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on such Servicer by the terms and provisions
hereof and applicable law including the obligation to make Advances pursuant to
Section 4.01. As compensation therefor, the Trustee shall be entitled to all
funds relating to the related Mortgage Loans that such Servicer would have been
entitled to charge to the Collection Account, provided that the terminated
Servicer shall nonetheless be entitled to payment or reimbursement as provided
in Section 3.08 to the extent that such payment or reimbursement relates to the
period prior to termination of such Servicer. Notwithstanding the foregoing, if
the Trustee has become the successor to a Servicer in accordance with Section
7.01, the Trustee may, if it shall be unwilling to so act, or shall, if it is
prohibited by applicable law from making Advances pursuant to
108
4.01 hereof, or if it is otherwise 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 by each Rating Agency, as the successor
to such Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of such Servicer hereunder. Any
successor to a Servicer shall be an institution which is a Xxxxxx Mae or Xxxxxxx
Mac approved seller/servicer for first and second loans in good standing, which
has a net worth of at least $10,000,000, which is willing to service the related
Mortgage Loans and which executes and delivers to the Depositor and the Trustee
an agreement accepting such delegation and assignment, containing an assumption
by such Person of the rights, powers, duties, responsibilities, obligations and
liabilities of such Servicer (other than liabilities of such Servicer under
Section 6.03 hereof incurred prior to termination of such Servicer under Section
7.01 hereunder), with like effect as if originally named as a party to this
Agreement; provided that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified, withdrawn or downgraded as a result of such assignment and
delegation. Pending appointment of a successor to such Servicer hereunder, the
Trustee, unless the Trustee is prohibited by law from so acting, shall, subject
to the limitations described herein, act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments on
the related Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of the Servicing Fee. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither the
Trustee nor any other successor servicer shall be deemed to be in default by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof or any failure to perform, or any delay in
performing, any duties or responsibilities hereunder, in either case caused by
the failure of such Servicer to deliver or provide, or any delay in delivering
or providing, any cash, information, documents or records to it.
In connection with the termination or resignation of any Servicer
hereunder, either (i) the successor servicer, including the Trustee if the
Trustee is acting as successor Servicer, shall represent and warrant that it is
a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, in which case the
predecessor Servicer shall cooperate with the successor Servicer in causing MERS
to revise its records to reflect the transfer of servicing to the successor
Servicer as necessary under MERS' rules and regulations, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to execute
and deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS(R)
System to the successor Servicer. The predecessor Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Servicer shall bear any and all fees of MERS, costs of preparing any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this subsection.
Any successor to a Servicer shall give notice to the Mortgagors of
such change of servicer and shall, during the term of its service as servicer,
maintain in force the policy or policies that such Servicer is required to
maintain pursuant to this Agreement.
109
SECTION 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to a
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder actually known to the Trustee, unless such Event of
Default shall have been cured or waived.
110
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of the Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
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 are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other 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 willful misconduct; provided, however, that:
(i) unless an Event of Default actually known to the Trustee shall
have occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against
the Trustee and the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be finally proven that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than 25%
of the Voting Rights 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.
111
SECTION 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and conclusively rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and
the Trustee shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and 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 not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing not less than 25% of the Voting Rights
allocated to each Class of Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
affiliates, accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers hereunder
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not assured
to it;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
(viii)the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights 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
112
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby.
SECTION 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or the Seller, 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 or of the
Certificates or of any Mortgage Loan or related document, or of MERS or the
MERS(R) System, other than with respect to the Trustee's execution and
countersignature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or a Servicer of any funds paid to the
Depositor or a Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or a Servicer.
SECTION 8.04 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 Depositor,
the Seller, any Servicer and their affiliates, with the same rights as it would
have if it were not the Trustee.
SECTION 8.05 Trustee's Fees and Expenses.
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Certificate Account on each Distribution Date
prior to making distributions pursuant to Section 4.02 an amount equal to the
Trustee Fee for such Distribution Date. The Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified by the Depositor and the
Servicers, to the extent such indemnity related to the failure of the related
Servicer to perform its servicing obligations in accordance with this Agreement,
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 Custodial Agreement, (c) the
Certificates, (d) the FSA Policy, or (e) the performance of any of the Trustee's
duties hereunder, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from any
error in any tax or information return prepared by the related 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
113
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 or Tax
Matters Person hereunder or for any other expenses.
SECTION 8.06 Eligibility Requirements for the Trustee and Custodian.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause either of the Rating Agencies to reduce their
respective then current Ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. 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 8.06 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 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07. The entity serving as
Trustee may have normal banking and trust relationships with the Depositor and
its affiliates or a Servicer and its affiliates; provided, however, that such
entity cannot be an affiliate of the Seller, the Depositor or a Servicer other
than the Trustee in its role as successor to a Servicer.
SECTION 8.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Seller, each Servicer and each Rating Agency not less than 60 days before the
date specified in such notice, when, subject to Section 8.08, such resignation
is to take effect, and acceptance by a successor trustee in accordance with
Section 8.08 meeting the qualifications set forth in Section 8.06. If no
successor trustee meeting such qualifications shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation or removal (as provided below), the resigning or removed Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 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 as 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 a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor may remove the Trustee
and appoint a successor trustee by written instrument, in triplicate, one copy
of which shall be delivered to the Trustee, one copy to each Servicer and the
Seller and one copy to the successor trustee.
114
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to each Servicer and the Seller, one complete
set to the Trustee so removed and one complete set to the successor so
appointed. Notice of any removal of the Trustee shall be given to each Rating
Agency by the successor trustee. All costs and expenses incurred by the Trustee
in connection with the removal of the Trustee without cause shall be reimbursed
to the Trustee from amounts on deposit in the Collection Account.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor trustee
and each Servicer and the Seller 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, each Servicer 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 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 and its appointment shall not
adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
SECTION 8.09 Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.06 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.
115
SECTION 8.10 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, each Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as each
Servicer and the Trustee may consider necessary or desirable. If a Servicer
shall not have joined in such appointment within 15 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 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee 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 (whether as Trustee hereunder
or as successor to a Servicer hereunder), 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
applicable 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;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder and such appointment
shall not, and shall not be deemed to, constitute any such separate
trustee or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(iv) The Depositor, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to
any such 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 separate trustees and co-trustees, when
and as effectively as if given to each of
116
them. Every instrument appointing any separate trustee or co-trustee shall refer
to this Agreement and the conditions of this Article VIII. 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 each Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11 Tax Matters.
It is intended that the assets with respect to which the REMIC
elections are to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to each such segregated
pool of assets shall be such as to qualify such assets as, a "real estate
mortgage investment conduit" as defined in and in accordance with the Trust Fund
Provisions. In furtherance of such intention, the Trustee covenants and agrees
that it shall act as agent (and the Trustee is hereby appointed to act as agent)
on behalf of the Trust Fund and that in such capacity it shall: (a) prepare and
file, or cause to be prepared and filed, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file or cause to be
prepared and filed with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to each of REMIC 1 and REMIC 2 containing such information and at
the times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby; (b) within thirty days of the Closing
Date, furnish or cause to be furnished to the Internal Revenue Service, on Forms
8811 or as otherwise may be required by the Code, the name, title, address, and
telephone number of the person that the holders of the Certificates may contact
for tax information relating thereto, together with such additional information
as may be required by such form, and update such information at the time or
times in the manner required by the Code; (c) make or cause to be made elections
that the assets of each of REMIC 1 and REMIC 2 be treated as a REMIC on the
federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and, if
necessary, state tax authorities, all information returns and reports as and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a Person
that is not a Permitted Transferee, or an agent (including a broker, nominee or
other middleman) of a Non-Permitted Transferee, or a pass-through entity in
which a Non-Permitted Transferee is the
117
record holder of an interest (the reasonable cost of computing and furnishing
such information may be charged to the Person liable for such tax); (f) to the
extent that they are under its control, conduct matters relating to such assets
at all times that any Certificates are outstanding so as to maintain the status
of REMIC 1 and REMIC 2 as a REMIC under the REMIC Provisions; (g) not knowingly
or intentionally take any action or omit to take any action that would cause the
termination of the REMIC status of REMIC 1 or REMIC 2; (h) pay, from the sources
specified in the last paragraph of this Section 8.11, the amount of any federal
or state tax, including prohibited transaction taxes as described below, imposed
on the Trust Fund prior to its termination when and as the same shall be due and
payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Trustee from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings); (i) ensure that federal, state
or local income tax or information returns shall be signed by the Trustee or
such other person as may be required to sign such returns by the Code or state
or local laws, regulations or rules; (j) maintain records relating to the Trust
Fund, including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined at
such intervals as may be required by the Code, as may be necessary to prepare
the foregoing returns, schedules, statements or information; and (k) as and when
necessary and appropriate, represent the Trust Fund in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year of
the Trust Fund, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of the Trust
Fund, and otherwise act on behalf of the Trust Fund in relation to any tax
matter or controversy involving it.
To the extent that they are under its control, each Servicer shall
conduct matters relating to the assets of each REMIC at all times that any
Certificates are outstanding so as to maintain the status of REMIC 1 and REMIC 2
as a REMIC under the REMIC Provisions. No Servicer shall knowingly or
intentionally take any action that would cause the termination of the REMIC
status of REMIC 1 or REMIC 2.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor any such additional
information or data that the Trustee may, from time to time, reasonably request
in order to enable the Trustee to perform its duties as set forth herein. The
Depositor hereby indemnifies the Trustee for any losses, liabilities, damages,
claims or expenses of the Trustee arising from any errors or miscalculations of
the Trustee that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of
the Trust Fund as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" of the Trust Fund as defined in Section 860G(c) of
the Code, on any contribution to the Trust Fund after the Startup Day pursuant
to Section 860G(d) of the Code, or any other tax is imposed, if not paid as
otherwise provided for herein, such tax shall be paid by (i) the Trustee, if any
such other tax arises
118
out of or results from a breach by the Trustee of any of its obligations under
this Agreement, (ii) the related Servicer or the Seller, in the case of any such
minimum tax, if such tax arises out of or results from a breach by such Servicer
or the Seller of any of their obligations under this Agreement or (iii) the
Seller, if any such tax arises out of or results from the Seller's obligation to
repurchase a related Mortgage Loan pursuant to Section 2.02 or 2.03 or (iv) in
all other cases, or in the event that the Trustee, the related Servicer or
Seller fails to honor its obligations under the preceding clauses (i), (ii) or
(iii), any such tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 4.02.
The Trustee shall treat the Reserve Fund as an outside reserve fund
within the meaning of Treasury Regulation 1.860G-2(h) that is owned by the Class
X-1 Certificateholder and that is not an asset of the REMICs. The Trustee shall
treat the rights of the Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2,
Class B-1A and Class B-1B Certificateholders to receive payments from the
Reserve Fund as rights in an interest rate cap contract written by the Class X-1
Certificateholder in favor of the Class A-1, Class X-0, Xxxxx X-0, Class M-1,
Class M-2, Class B-1A and Class B-1B Certificateholders. Thus, each Certificate
other than the Class X-1 Certificates shall be treated as representing ownership
of not only REMIC Regular Interests, but also ownership of an interest in an
interest rate cap contract. For purposes of determining the issue price of the
REMIC Regular interests, the Trustee shall assume that the interest rate cap
contract has a value of $5,000.
Neither a Servicer nor the Trustee shall enter into any arrangement
by which any of REMIC 1 or REMIC 2 will receive a fee or other compensation for
services nor permit any of REMIC 1 or REMIC 2 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.
SECTION 8.12 Periodic Filings.
The Trustee shall, on behalf of the Trust Fund, cause to be filed
with the Securities and Exchange Commission any periodic reports required to be
filed under the provisions of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
thereunder. In connection with the preparation and filing of such periodic
reports, the Depositor and each Servicer shall timely provide to the Trustee all
material information available to them which is required to be included in such
reports. The Trustee shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to the
Trustee's inability or failure to obtain any information not resulting from its
own negligence or willful misconduct.
119
ARTICLE IX
TERMINATION
SECTION 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans.
Subject to Section 9.03, the rights, obligations and
responsibilities of the Depositor, the Seller, the Servicers and the Trustee
created hereunder with respect to the Trust Fund shall terminate upon the
earlier of (a) the purchase by the Optional Termination Holder of all Mortgage
Loans (and REO Properties) remaining at the price equal to the sum of (A) 100%
of the Aggregate Collateral Balance plus one month's accrued interest thereon at
the applicable Mortgage Rate, (B) the lesser of (x) the appraised value of any
REO Property as determined by the higher of two appraisals completed by two
independent appraisers selected by the Depositor at the expense of the Depositor
and (y) the Stated Principal Balance of each Mortgage Loan related to any REO
Property, in each case plus accrued and unpaid interest thereon at the
applicable Mortgage Rate and (C) any unreimbursed Servicing Advances and (b) the
later of (i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to this Agreement. In
no event shall the trusts created hereby continue beyond the expiration of 21
years from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late Ambassador of the United States to the Court of St. James's, living on
the date hereof. The right to repurchase all Mortgage Loans and REO Properties
pursuant to clause (a) above shall be conditioned upon the aggregate Stated
Principal Balance of the Mortgage Loans and the appraised value of the REO
Properties at the time of any such repurchase, aggregating less than ten percent
of the Aggregate Collateral Balance as of the Cut-off Date.
SECTION 9.02 Final Distribution on the Certificates.
If on any Determination Date, the Trustee determines that there are
no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Collection Accounts and Certificate Account, the
Trustee shall promptly send a final distribution notice to each
Certificateholder. If the Optional Termination Holder above elects to terminate
the Trust Fund pursuant to Section 9.01, at least 20 days prior to the date
notice is to be mailed to the affected Certificateholders such Person shall
notify the Servicers and the Trustee of the date the Depositor intends to
terminate the Trust Fund and of the applicable repurchase price of the Mortgage
Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders shall surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and not later than the 15th day of the month next preceding the month of
such final distribution. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon presentation
and surrender of Certificates at the office therein designated, (b) the amount
of such final distribution, (c) the location of the office or agency at which
such presentation and surrender must be made, and (d) that the Record Date
otherwise applicable
120
to such Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office therein specified.
The Trustee shall give such notice to each Rating Agency at the time such notice
is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class, in each
case on the final Distribution Date and in the order set forth in Section 4.02,
in the case of the Certificateholders, in proportion to their respective
Percentage Interests, with respect to Certificateholders of the same Class, an
amount equal to (i) as to each Class of Regular Certificates, the Certificate
Balance thereof plus accrued interest thereon (or on their Notional Amount, if
applicable) in the case of an interest-bearing Certificate and (ii) as to the
Residual Certificates, the amount, if any, which remains on deposit in the
Collection Accounts (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining 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 applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class A-R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto and the Trustee shall
be discharged from all further liability with respect to the Certificates and
this Agreement.
SECTION 9.03 Additional Termination Requirements.
(a) In the event that the Optional Termination Holder exercises its
purchase option with respect to the Mortgage Loans as provided in Section 9.01,
at such time as the Mortgage Loans are so purchased, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Trustee has been supplied with an Opinion of Counsel, at the expense of the
Depositor, to the effect that the failure to comply with the requirements of
this Section 9.03 will not (i) result in the imposition of taxes on "prohibited
transactions" on any REMIC as defined in Section 860F of the Code, or (ii) cause
REMIC 1 or REMIC 2 to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(1) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Trustee under Section
9.02, the Depositor shall prepare and the Trustee, at
the expense of the Depositor, shall adopt a plan of
complete liquidation within the meaning of Section
860F(a)(4) of the Code which, as evidenced by an Opinion
of Counsel (which opinion shall not be an expense of the
Trustee, the Tax Matters Person or the Trust Fund),
meets the requirements of a qualified liquidation;
121
(2) Within 90 days after the time of adoption of such a plan
of complete liquidation, the Trustee shall sell all of
the assets of the Trust Fund to the Depositor for cash
in accordance with Section 9.01; and
On the date specified for final payment of the
Certificates, the Trustee shall, after payment of any
unreimbursed Advances, Servicing Advances, Servicing
Fees or other fee compensation payable to each Servicer
pursuant to this Agreement, make final distributions of
principal and interest on the Certificates in accordance
with Section 4.02 and distribute or credit, or cause to
be distributed or credited, to the Holders of the
Residual Certificates all cash on hand after such final
payment (other than the cash retained to meet claims),
and the Trust Fund (and any REMIC) shall terminate at
that time.
(b) The Trustee as agent for REMIC 1 and REMIC 2 hereby agrees to
adopt and sign such a plan of complete liquidation upon the written request of
the Depositor, and the receipt of the Opinion of Counsel referred to in Section
9.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Depositor.
(c) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Depositor to prepare and the Trustee to adopt and sign a
plan of complete liquidation.
122
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01 Amendment.
This Agreement may be amended from time to time by the Depositor,
each Servicer, the Seller and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor, the Seller or any Servicer, (iv) to add any other provisions with
respect to matters or questions arising hereunder or (v) to modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement; provided that any action pursuant to clauses (iv) or (v) above shall
not, as evidenced by an Opinion of Counsel (which Opinion of Counsel shall not
be an expense of the Trustee or the Trust Fund, but shall be at the expense of
the party proposing such amendment), adversely affect in any material respect
the interests of any Certificateholder; provided, however, that no such Opinion
of Counsel shall be required if the Person requesting the amendment obtains a
letter from each Rating Agency stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Seller and the
Servicers also may at any time and from time to time amend this Agreement
without the consent of the Certificateholders to modify, eliminate or add to any
of its provisions to such extent as shall be necessary or helpful to (i)
maintain the qualification of REMIC 1 or REMIC 2 as a REMIC under the Code, (ii)
avoid or minimize the risk of the imposition of any tax on the Trust Fund
pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements of
the Code, provided that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
Notwithstanding the foregoing, any amendment to this Agreement shall
require the prior written consent of FSA if such amendment adversely affects in
any respect the rights or interests of FSA or of the Insured Certificates
(without regard to the FSA Policy).
This Agreement may also be amended from time to time by the
Depositor, the Servicers, the Seller and the Trustee with the consent of the
Holders of a Majority in Interest of each Class of Certificates affected thereby
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 Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in clause (i), without the consent of the Holders of Certificates
of such Class evidencing, as to such
123
Class, Percentage Interests aggregating 66%, or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, but shall be at the expense of the party
preparing such amendment, to the effect that such amendment will not cause the
imposition of any tax on the Trust Fund or the Certificateholders or cause REMIC
1 or REMIC 2 to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Promptly after the execution of any amendment to this Agreement, the
Trustee shall furnish written notification of the substance or a copy of such
amendment to each Certificateholder if the consent of Certificateholders was
required and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
SECTION 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Depositor at its expense, but only upon
direction by the Trustee accompanied by an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
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.
124
SECTION 10.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.04 [Reserved]
SECTION 10.05 Notices.
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of any Servicer or the Trustee
and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.02 and 2.03; and
(v) The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following to the extent such items are in its
possession:
(i) Each report to Certificateholders described in Section 4.06 and
3.19;
(ii) Each annual statement as to compliance described in Section
3.16;
(iii) Each annual independent public accountants' servicing report
described in Section 3.17; and
(iv) Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor and the Seller, Eleven Madison Avenue, 4th Floor, New York, New
York 10010, Attention: Xxxxxxx Xxxxxx (with a copy to Credit Suisse First Boston
Mortgage Securities Corp., Eleven Madison Avenue, 4th Floor, New York, New York
10010, Attention: Office of the General Counsel), (b) in the case of the
Trustee,
125
the Corporate Trust Office or such other address as the Trustee may hereafter
furnish to the Depositor and the Servicers, (c) in the case of Wilshire, 0000 XX
Xxxxxxx, Xxxxxxxx, Xxxxxx 00000 Attention: Xxx Xxxxxxx, with a copy to Stoel
Rives LLP, 000 XX Xxxxx, Xxxxxxxx, Xxxxxx 00000 Attention: Xxxx Xxxxxx or such
other address as may be hereafter furnished in writing to the Depositor and the
Trustee by the Servicer, (d) in the case of each of the Rating Agencies, the
address specified therefor in the definition corresponding to the name of such
Rating Agency and (e) in the case of Ocwen, Ocwen Federal Bank FSB, 0000 Xxxx
Xxxxx Xxxxx Xxxx., Xxxx Xxxx Xxxxx, XX 00000, Attention: Secretary. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
SECTION 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07 Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Sections 6.02 and 6.04, this Agreement may not be assigned by any
Servicer without the prior written consent of the Trustee and Depositor;
provided, however, that neither the Depositor nor the Trustee shall consent to
any such assignment unless each Rating Agency has confirmed in writing that such
assignment will not cause a reduction or withdrawal of the ratings then assigned
by it to any Class of Certificates.
SECTION 10.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the trust created hereby, 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 created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided,
126
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
to the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 10.09 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
127
IN WITNESS WHEREOF, the Depositor, the Trustee, the Seller and the
Servicers have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK,
as Trustee
By: ___________________________
Name: Xxxxxx Xxxxx
Title: Trust Officer
DLJ MORTGAGE CAPITAL, INC.,
as Seller
By: __________________________
Name: Xxxxx Xxxxxxxxxx
Title:Vice President
WILSHIRE CREDIT CORPORATION,
as a Servicer
By: _________________________
Name: Xxxxxxx Xxxxxx
Title:Senior Vice President
OCWEN FEDERAL BANK FSB,
as a Servicer
By: _________________________
Name: Xxxxxxx Xxxxxxx
Title: Vice President
[Notary pages to be attached]
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").
[THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.]
A-1
Certificate No. [____] [____]% Interest Rate
Cut-off Date: Initial Certificate Balance of this Certificate
April 1, 2002 ("Denomination"):
$[___________________]
First Distribution Date: Initial [Certificate Balances] of all Certificates
May 28, 2002 of this Class:
$[___________________]
Maturity Date: CUSIP: [_________________]
[_______________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12
Class [_______]
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 conventional mortgage loans (the
"Mortgage Loans") secured by fixed rate, second lien residential mortgage
loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate is payable solely
from the assets of the Trust and does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicers
or the Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not 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 ("DLJMC"), Wilshire Credit
Corporation as a servicer ("Wilshire"), Ocwen Federal Bank FSB as a servicer
("Ocwen") and JPMorgan Chase Bank as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned to
such terms in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which
A-2
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: April 25, 2002
JPMORGAN CHASE BANK,
as Trustee
By
----------------------------------------
Countersigned:
By
------------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATE 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.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER 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, OR, IF THE PURCHASER IS AN INSURANCE COMPANY, A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN OR 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 OFFICER'S
CERTIFICATE OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.]
[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.]
[THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.]
B-1
Certificate No. [____] [____]% Interest Rate
Cut-off Date: Initial Certificate Balance of this Certificate
April 1, 2002 ("Denomination"):
$[_________________]
First Distribution Date: Initial [Certificate Balances] of all Certificates
May 28, 2002 of this Class:
$[_________________]
Maturity Date: CUSIP: [_________________]
[_________________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12
Class [_______]
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 conventional mortgage loans (the
"Mortgage Loans") secured by fixed rate, second lien residential mortgage
loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate is payable solely
from the assets of the Trust and does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicers
or the Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not 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 ("DLJMC"), Wilshire Credit
Corporation as a servicer ("Wilshire"), Ocwen Federal Bank FSB as a servicer
("Ocwen") and JPMorgan Chase Bank as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned to
such terms in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which
B-2
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee or the Trust Fund,
(ii) if the purchaser is an insurance company, 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 satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60 or
(iii) in the case of any such Certificate presented for registration in the name
of an employee benefit plan subject to ERISA, or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement, or
using such plan's or arrangement's assets, an Opinion of Counsel satisfactory to
the Trustee to the effect that the purchase or holding of such Certificate will
not result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and will
not subject the Trustee or the Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee or the Trust Fund. Notwithstanding anything else to the contrary
herein, any purported transfer of a Certificate to or on behalf of an employee
benefit plan subject to ERISA or to the Code without the Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.]
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a transfer is
to be made within three years from the date of the initial issuance of
Certificates pursuant hereto, there shall also be delivered (except in the case
of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee an
Opinion of Counsel that such transfer may be made pursuant to an exemption from
the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Seller, the Servicers
or the Depositor. The Holder hereof desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.]
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.
B-3
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
B-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: April 25, 2002
JPMORGAN CHASE BANK,
as Trustee
By
------------------------------------
Countersigned:
By
----------------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
B-5
EXHIBIT C
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A 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, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO
THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.
C-1
Certificate No. [____] [____]% Interest Rate
Cut_off Date: Initial Certificate Balance of this Certificate
April 1, 2002 ("Denomination"):
$[_________________]
First Distribution Date: Initial [Certificate Balances] of all Certificates
May 28, 2002 of this Class:
$[_________________]
Maturity Date: CUSIP: [_________________]
[______________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12
Class [_______]
evidencing the distributions allocable to the Class A-R Certificates with
respect to a Trust Fund consisting primarily of a pool of conventional
mortgage loans (the "Mortgage Loans") secured by fixed rate, second lien
residential mortgage loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate is payable solely
from the assets of the Trust and does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Servicers
or the Trustee referred to below or any of their respective affiliates. This
Certificate and the Mortgage Loans are not 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 ("DLJMC"), Wilshire Credit
Corporation as a servicer ("Wilshire"), Ocwen Federal Bank FSB as a servicer
("Ocwen") and JPMorgan Chase Bank as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned to
such terms in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the
C-2
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 A-R Certificate
at the Corporate Trust Office or the office or agency maintained by the Trustee
in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a person acting
on behalf of any such plan or arrangement or using the assets of any such plan
or arrangement to effect such transfer, which representation letter shall not be
an expense of the Trustee or the Trust Fund or (ii) in the case of any such
Class A-R Certificate presented for registration in the name of an employee
benefit plan subject to ERISA, or Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan or arrangement, or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee to the effect that the purchase or holding of such Class A-R 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 Trustee to any obligation in addition to those undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund. Notwithstanding anything else to the contrary herein,
any purported transfer of a Class A-R Certificate to or on behalf of an employee
benefit plan subject to ERISA or to the Code without the Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
Each Holder of this Class A-R 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 A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without delivery to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b) a
transfer certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class A-R Certificate must agree not to transfer an Ownership
Interest in this Class A-R 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 A-R Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: April 25, 2002
JPMORGAN CHASE BANK,
as Trustee
By
------------------------------------
Countersigned:
By
----------------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
C-4
EXHIBIT D
[Reserved]
D-1
EXHIBIT E
[FORM OF CLASS P 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 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.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER 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 OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO
THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.
E-1
Certificate No. [____] [____]% Interest Rate
Cut_off Date: Initial Certificate Balance of this Certificate
April 1, 2002 ("Denomination"):
$[_________________]
First Distribution Date: Initial [Certificate Balances] of all Certificates
May 28, 2002 of this Class:
$[_________________]
Maturity Date: CUSIP: [_________________]
[______________]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12
Class [_______]
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 conventional mortgage loans (the
"Mortgage Loans") secured by fixed rate, first and second lien residential
mortgage loans.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance of this Class P
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Class P
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicers or the Trustee referred to below or
any of their respective affiliates.
This certifies that _________________ is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the Denomination of this Class P Certificate by the Original Class Certificate
Principal Balance) in certain distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2002 (the "Agreement") among the
Depositor, DLJ Mortgage Capital Inc., as seller ("DLJMC"), Wilshire Credit
Corporation, as a servicer ("Wilshire"), Ocwen Federal Bank FSB as a servicer
("Ocwen") and JPMorgan Chase Bank, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Class P Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the Holder
of this Class P Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
E-2
This Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the 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 Act and such laws, in order to
assure compliance with the Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee and the Depositor in writing the facts surrounding
the transfer. In the event that such a transfer is not to be made pursuant to
Rule 144A of the Act, there shall be delivered to the Trustee and the Depositor
of an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Act, which Opinion of Counsel shall not be obtained at the expense of
the Trustee, the Seller, the Servicers or the Depositor; or there shall be
delivered to the Trustee and the Depositor a transferor certificate by the
transferor and an investment letter shall be executed by the transferee. The
Holder hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of a Class P Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a person acting
on behalf of any such plan or arrangement or using the assets of any such plan
or arrangement to effect such transfer, which representation letter shall not be
an expense of the Trustee or the Trust Fund or (ii) in the case of any such
Class P Certificate presented for registration in the name of an employee
benefit plan subject to ERISA, or Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan or arrangement, or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee to the effect that the purchase or holding of such Class P 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 Trustee to any obligation in addition to those undertaken
in this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund. Notwithstanding anything else to the contrary herein,
any purported transfer of a Class P Certificate to or on behalf of an employee
benefit plan subject to ERISA or to the Code without the Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
Reference is hereby made to the further provisions of this Class P
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 Class P Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
E-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: April 25, 2002
JPMORGAN CHASE BANK,
as Trustee
By
------------------------------------
Countersigned:
By
---------------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
E-4
EXHIBIT F
[FORM OF REVERSE OF CERTIFICATES]
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12
Class [_______]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp., Mortgage
Pass-Through Certificates, of the Series specified on the face hereof (herein
collectively called the "Certificates"), and representing a beneficial ownership
interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. [The Record Date applicable to each Distribution Date
is the last Business Day of the month next preceding the month of such
Distribution Date.][The Record Date applicable to each Distribution Date is the
Business Day immediately preceding the related Distribution Date; provided that
if this Certificate is not a Book-Entry Certificate, then the Record Date
applicable to each Distribution Date is the last Business Day of the month next
preceding such Distribution Date.]
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
F-1
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicers, the Seller and the Trustee with the consent of
the Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicers, the Seller and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and the Seller, the
Depositor, the Trustee, or any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the sum of the aggregate Stated
Principal Balance of the Mortgage Loans and the appraised value of the REO
Properties at the time of repurchase is less than 10% of the sum of the
Aggregate Collateral Balance of the Mortgage Loans, the Optional Termination
Holder will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans and REO Properties 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 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
F-2
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.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
________________________________________________________________________________
Dated:
__________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
_______________________________________________________________________________,
for the account of_____________________________________________________________,
account number __________ , or, if mailed by check, to__________________________
________________________________________________________________________________
________________________________________________________________________________
Applicable statements should be mailed to_______________________________________
________________________________________________________________________________
________________________________________________________________________________
This information is provided by ____________________________, the assignee named
above, or _____________________________, as its agent.
F-3
EXHIBIT G
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
April 25, 2002
________________
________________
Cut-off Date Principal Balance:
$_______________
JPMorgan Chase Bank,
as Trustee, for the
CSFB Mortgage Pass-Through Certificates, Series 2002-S12
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Financial Security Assurance Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial Agreement, dated as of April 1, 2002, between
JPMorgan Chase Bank, as Trustee and [Bank One Trust Company,
N.A.][LaSalle Bank National Association, as Custodian]
Ladies and Gentlemen:
In accordance with the provisions of Section 4 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies as to
each Mortgage Loan in the Mortgage Loan Schedule that (i) it has received: the
original Mortgage Note and Assignment of Mortgage with respect to each Mortgage
Loan identified on the Mortgage Loan Schedule attached hereto as Exhibit A and
(ii) such Mortgage Note has been reviewed by it and appears regular on its face
and relates.
The Custodian makes no representations as to: (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness of any of the
documents contained in each Custodial File or of any of the Mortgage Loans or
(ii) the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Custodian hereby confirms that it is holding each such Mortgage Note
and Assignment of Mortgage as agent and bailee of, and custodian for the
exclusive use and benefit, and subject to the sole direction, of the Trustee
pursuant to the terms and conditions of the Custodial Agreement.
This Trust Receipt and Initial Certification is not divisible or
negotiable.
G-1
The Custodian will accept and act on instructions with respect to the
Mortgage Loans subject hereto upon surrender of this Trust Receipt and Initial
Certification at its office at [in the case of Bank One, N.A.: 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Document Custodian][in the
case of LaSalle Bank National Association: 0000 Xxxxx Xxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxx, 00000].
G-2
Capitalized terms used herein shall have the meaning ascribed to them in
the Custodial Agreement.
[BANK ONE TRUST COMPANY, N.A.],
[LASALLE BANK NATIONAL
ASSOCIATION]
as Custodian
By:
-----------------------------------
Name:
Title:
G-3
EXHIBIT H
FORM OF FINAL CERTIFICATION OF CUSTODIAN
Trust Receipt #_________
Cut-off Date Principal Balance
$_____________
[To be addressed to the Trustee of record]
_________________________
_________________________
Financial Security Assurance Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Custodial Agreement, dated as of April 1, 2002, between
JPMorgan Chase Bank, as Trustee and [Bank One Trust Company,
N.A.][LaSalle Bank National Association], as Custodian
Ladies and Gentlemen:
In accordance with the provisions of Section 6 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that as
to each Mortgage Loan listed on the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan listed on the attachment hereto)
it has reviewed the Custodial Files and has determined that (i) all documents
required to be delivered to it pursuant to Sections 2(i)-(ix) of the Custodial
Agreement are in its possession; (ii) such documents have been reviewed by it
and appear regular on their face and related to such Mortgage Loan; (iii) all
Assignments of Mortgage or intervening assignments of mortgage, as applicable,
have been submitted for recording in the jurisdictions in which recording is
necessary; and (iv) each Mortgage Note has been endorsed as provided in Section
2(ii) of the Custodial Agreement and each Mortgage has been assigned in
accordance with Section 2(iii) of the Custodial Agreement. The Custodian makes
no representations as to: (i) validity, legality, enforceability, sufficiency,
due authorization or genuineness of any of the documents contained in each
Custodial File or of any of the Mortgage Loans, or (ii) The collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Custodian hereby confirms that it is holding each such Custodial File
as agent and bailee of, and custodian for the exclusion use and benefit, and
subject to the sole direction, of Trustee pursuant to the terms and conditions
of the Custodial Agreement.
This Trust Receipt and Final Certification is not divisible or negotiable.
H-1
The Custodian will accept and act on instructions with respect to the
Mortgage Loans subject hereto upon surrender of this Trust Receipt and Final
Certification at its office at [in the case of Bank One, N.A.: 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Document Custodian][in the
case of LaSalle Bank National Association: 0000 Xxxxx Xxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxx, 00000].
H-2
Capitalized terms used herein shall have the meaning ascribed to them in
the Custodial Agreement.
[BANK ONE TRUST COMPANY, N.A.],
[LASALLE BANK NATIONAL
ASSOCIATION],
as Custodian
By:
-----------------------------------
Name:
Title:
H-3
EXHIBIT I
TRANSFER AFFIDAVIT
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12
Class [_______]
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (The "Certificate") issued
pursuant to the Pooling and Servicing Agreement, (The "Agreement"), relating to
the above-referenced Series, among Credit Suisse First Boston Mortgage
Securities Corp. as depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"),
Wilshire Credit Corporation as a servicer ("Wilshire"), Ocwen Federal Bank FSB
as a servicer ("Ocwen") and JPMorgan Chase Bank as trustee (The "Trustee").
Capitalized terms used, but not defined herein or in Exhibit 1 hereto, shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman) for
a Person that is not a Permitted Transferee, on the agent; and (iii) the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
subsequent Transferee furnished to such Person an affidavit that such subsequent
Transferee is a Permitted Transferee and, at the time of Transfer, such Person
does not have actual knowledge that the affidavit is false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with respect to
which the record holder furnishes to the pass-through entity an affidavit that
such record holder is a Permitted Transferee and the pass-through entity does
not have actual knowledge that such affidavit is false. (For this purpose, a
"pass-through entity" includes a regulated investment company,
I-1
a real estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives and, except as may be provided in Treasury
Regulations, persons holding interests in pass-through entities as a nominee for
another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, The restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c) of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, The
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as EXHIBIT J to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is [_____________].
9. The Transferee is a United States Person.
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed 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, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11. The Transferee is (a) not an employee benefit plan that is subject to
ERISA or a plan that is subject to Section 4975 of the Code, and the Transferee
is not acting on behalf of such a plan or (b) an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of such a plan and will provide an Opinion of
Counsel in accordance with the provisions of Agreement.
* * *
I-2
IN WITNESS WHEREOF, The Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this _____ day of _____________, 20___.
Print Name of Transferee
By:
----------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
_____________________
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me
to be the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged that he executed the same as his free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this ______ day of _______________,
20___.
_____________________________________
NOTARY PUBLIC
My Commission
expires the _____ day of
_________________, 20___.
I-3
EXHIBIT 1
to
EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Residual Certificate, any ownership
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
"Permitted Transferee": Any person other than (i) The United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person that is not 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 whose income from sources
without the United States is includible in gross income for federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust unless such Person has furnished the transferor and the
Trustee with a duly completed Internal Revenue Service Form W-8ECI or successor
form, and (vi) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause the Trust Fund hereunder to fail to qualify
as a REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
"Person": Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
I-1-1
EXHIBIT 2
to
EXHIBIT I
Section 5.02(c) of the Agreement
Each Person who has or who acquires any Ownership Interest in a Residual
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions, and the rights
of each Person acquiring any Ownership Interest in a Residual Certificate are
expressly subject to the following provisions:
I-2-1
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12,
Class [___]
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 A-R Certificate, we have no knowledge
the Transferee is not a Permitted Transferee.
Very truly yours,
------------------------------------
Print Name of Transferor
By:
------------------------------------
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12,
Class [___]
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
insitutional "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) 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 (e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60, (e) 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 XXXX 00-00, (x) 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 (h) below), (g)
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 (h) 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
K-1
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 (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling and
Servicing Agreement.
Very truly yours,
------------------------------------
Print Name of Transferor
By:
------------------------------------
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 200__
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12,
Class [___]
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) 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,
(e) in the case of our acquisition of a Class B-2 Certificate, 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 XXXX 00-00, (x) 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, (g) we are a "qualified institutional buyer" as that term
is defined in Rule 144A under
L-1
the Act ("Rule 144A") and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2, (h) 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 the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (B) pursuant to another exemption
from registration under the Act.
Very truly yours,
------------------------------------
Print Name of Transferor
By:
------------------------------------
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, The Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) The Buyer owned and/or
invested on a discretionary basis $___________(1) in securities (except for the
1 excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) The Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, The business of which is substantially confined to banking and
is supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
--------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least $10,000,000
in securities.
L-1-1
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar official
or agency of a State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, The Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
The securities may be valued at market. Further, in determining such aggregate
amount, The Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
L-1-2
6. Until the date of purchase of the Rule 144A Securities, The Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, The Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, The Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
--------------------------------------
Print Name of Buyer
By:
-----------------------------------
Name:
Title:
Date:
---------------------------------
L-1-3
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial Officer
or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, The Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) The Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, The Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, The cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, The securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the
same parent or because one investment adviser is a majority owned
subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase
L-2-1
agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, The Buyer will only
purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, The undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information
and conclusions herein. Until such notice is given, The Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
-------------------------------------
Print Name of Buyer or Adviser
By:
----------------------------------
Name:
Title:
IF AN ADVISER:
-------------------------------------
Print Name of Buyer
Date:
--------------------------------
L-2-2
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CSFB Trust Series 2002-S12
CSFB Mortgage Pass-Through Certificates, Series 2002-S12
Loan Information
Name of Mortgagor:
-----------------------------------------
Servicer
Loan No.:
-----------------------------------------
Trustee
Name:
Address:
-----------------------------------------
Trustee
Mortgage File No.:
The undersigned Servicer hereby acknowledges that it has received from
Bank One, National Association, as Custodian for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, The documents
referred to below (The "Documents"). All capitalized terms not otherwise defined
in this Request for Release shall have the meanings given them in the Pooling
and Servicing Agreement (The "Pooling and Servicing Agreement") relating to the
above-referenced Series among Credit Suisse First Boston Mortgage Securities
Corp. as depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire
Credit Corporation as a servicer ("Wilshire"), Ocwen Federal Bank FSB as a
servicer ("Ocwen") and JPMorgan Chase Bank as trustee (The "Trustee").
( ) Mortgage Note dated _____________________, _______, in the original
principal sum of $___________________, made by ____________________.
payable to, or endorsed to the order of, The Trustee.
( ) Mortgage recorded on ________________ as instrument no. ______________ in
the County Recorder's Office of the County of ___________________, State
of ___________ in book/reel/docket _________________ of official records
at page/image _____________.
M-1
( ) Deed of Trust recorded on _____________ as instrument no. ______________
in the County Recorder's Office of the County of _______________, State of
______________ in book/reel/docket _____________________ of official
records at page/image _________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_________ as instrument no. ______________ in the County Recorder's Office
of the County of ______, State of ________________ in book/reel/docket
_______________ of official records at page/image _______________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ______________________________________________________________________
( ) ______________________________________________________________________
( ) ______________________________________________________________________
( ) ______________________________________________________________________
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) Such Servicer shall hold and retain possession of the Documents
in trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) Such Servicer shall not cause or knowingly permit the Documents
to become subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor
shall the Servicer, if applicable, assert or seek to assert any
claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) Such Servicer shall return each and every Document previously
requested from the Mortgage File to the Custodian when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been
remitted to the Certificate Account and except as expressly provided
in the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of such Servicer
shall at all times be earmarked for the account of the Custodian,
and such Servicer shall keep the Documents and any proceeds separate
and distinct from all other property in such Servicer's possession,
custody or control.
[Servicer]
By
------------------------------------
M-2
Its
-----------------------------------
Date: ____________, 20__
M-3
EXHIBIT N
FORM OF SUBSEQUENT TRANSFER AGREEMENT
THIS SUBSEQUENT TRANSFER AGREEMENT, dated as of [___________, 20__] (this
"Subsequent Transfer Agreement"), among CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation, as depositor (the "Depositor"), DLJ
MORTGAGE CAPITAL, INC., a Delaware corporation, in its capacity as seller under
the Pooling and Servicing Agreement referred to below (the "Seller"), and
JPMORGAN CHASE BANK, a national banking association, as trustee (the "Trustee");
WHEREAS, the parties hereto are also among the parties to the Pooling and
Servicing Agreement among Credit Suisse First Boston Mortgage Securities Corp.,
as depositor, Ocwen Federal Bank FSB, as a servicer, Wilshire Credit
Corporation, as a servicer, DLJ Mortgage Capital, Inc., as seller and JPMorgan
Chase Bank, as trustee, dated as of April 1, 2002 (the "Pooling and Servicing
Agreement"), in relation to the CSFB Mortgage Pass-Through Certificates, Series
2002- S12;
WHEREAS, Section 2.01(f) of the Pooling and Servicing Agreement provides
for the parties hereto to enter into this Subsequent Transfer Agreement in
accordance with the terms and conditions of the Pooling and Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and adequacy of which are hereby acknowledged
the parties hereto agree as follows:
(i) The "Subsequent Transfer Date" with respect to this Subsequent
Transfer Agreement shall be [________, 20__].
(ii) The "Aggregate Subsequent Purchase Amount" with respect to this
Subsequent Transfer Agreement shall be $[___________], provided, however, that
such amount shall not exceed the amount on deposit in the Prefunding Account.
(iii) The Subsequent Mortgage Loans conveyed on the Subsequent Transfer
Date shall satisfy the pool characteristics for the Trust Fund identified in
Section 2.01(f) of the Pooling and Servicing Agreement.
(iv) In case any provision of this Subsequent Transfer Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions or obligations shall not in any way be affected or
impaired thereby.
(v) In the event of any conflict between the provisions of this Subsequent
Transfer Agreement and the Pooling and Servicing Agreement, the provisions of
the Pooling and Servicing Agreement shall prevail. Capitalized terms used herein
and not otherwise defined have the meanings in the Pooling and Servicing
Agreement.
N-1
(vi) The Seller hereby sells, transfers, assigns, sets over and otherwise
conveys to the Trustee for the benefit of the Certificateholders, without
recourse, all right title and interest in the Subsequent Mortgage Loans
identified in Schedule A, including all interest and principal due on or with
respect to such Subsequent Mortgage Loans on or after the Subsequent Cut-off
Date and all interest and principal payments on such Subsequent Mortgage Loans
received prior to the Subsequent Cut-off Date in respect of installments of
interest and principal due thereafter, but not including principal and interest
due on such Subsequent Mortgage Loans prior to the Subsequent Cut-off Date, any
insurance policies in respect of such Subsequent Mortgage Loans and all proceeds
of any of the foregoing.
(vii) This Subsequent Transfer Agreement shall be governed by, and shall
be construed and enforced in accordance with the laws of the State of New York.
(viii) The Subsequent Transfer Agreement may be executed in one or more
counterparts, each of which so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
N-2
IN WITNESS WHEREOF, the parties to this Subsequent Transfer Agreement have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
as Depositor
By: __________________________
Name:
Title:
DLJ MORTGAGE CAPITAL, INC.,
as Seller
By: ___________________________
Name:
Title:
JPMORGAN CHASE BANK,
not in its individual capacity, but
solely as Trustee
By: ___________________________
Name:
Title:
WILSHIRE CREDIT CORPORATION
as Servicer
By: ____________________________
Name:
Title:
OCWEN FEDERAL BANK FSB
as Servicer
By: ____________________________
Name:
Title:
N-3
Schedule A to Subsequent Transfer Agreement
[List of Subsequent Mortgage Loans]
N-4
EXHIBIT O-1
COLLECTION ACCOUNT CERTIFICATION
[ ], 20__
[Servicer's name] hereby certifies that it has established the account
described below as a Collection Account pursuant to Section 3.05 of the Pooling
and Servicing Agreement, dated as of April 1, 2002, among Credit Suisse First
Boston Mortgage Securities Corp. as depositor, DLJ Mortgage Capital, Inc. as
seller ("DLJMC"), Wilshire Credit Corporation as a servicer ("Wilshire"), Ocwen
Federal Bank FSB as a servicer ("Ocwen") and JPMorgan Chase Bank as trustee (The
"Trustee").
Title of Account: [Servicer's Name], in trust for the Holders of Credit Suisse
First Boston Mortgage Securities Corp., CSFB Mortgage
Pass-Through Certificates, Series 2002-S12.
Account Number: ______________
Address of officer or branch of the Company at which Account is maintained:
-----------------------------------
-----------------------------------
-----------------------------------
[Servicer's Name], AS SERVICER
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
O-1-1
EXHIBIT O-2
COLLECTION ACCOUNT LETTER AGREEMENT
[ ], 20__
To: ---------------------------
---------------------------
---------------------------
(The "Depository")
As Servicer under the Pooling and Servicing Agreement, dated as of
April 1, 2002, among Credit Suisse First Boston Mortgage Securities Corp. as
depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit
Corporation as a servicer ("Wilshire"), Ocwen Federal Bank FSB as a servicer
("Ocwen") and JPMorgan Chase Bank as trustee (The "Trustee") (The "Agreement"),
we hereby authorize and request you to establish an account, as a Collection
Account pursuant to Section 3.05 of the Agreement, to be designated as
"[Servicer's Name], in trust for the Holders of Credit Suisse First Boston
Mortgage Securities Corp., CSFB Mortgage Pass-Through Certificates, Series
2002-S12." All deposits in the account shall be subject to withdrawal therefrom
by order signed by the Servicer. This letter is submitted to you in duplicate.
Please execute and return one original to us.
[Servicer's Name], AS SERVICER
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
O-2-1
The undersigned, as Depository, hereby certifies that the above described
account has been established under Account Number _________ at the office of the
Depository indicated above and agrees to honor withdrawals on such account as
provided above. The full amount deposited at any time in the account will be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund ("BIF") or the Savings Association Insurance
Fund ("SAIF").
Depository
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Date:
------------------------------------
X-0-0
XXXXXXX X-0
ESCROW ACCOUNT CERTIFICATION
[ ], 20__
[Servicer's Name] hereby certifies that it has established the account
described below as an Escrow Account pursuant to Section 3.06 of the Pooling and
Servicing Agreement, dated as of April 1, 2002, among Credit Suisse First Boston
Mortgage Securities Corp. as depositor, DLJ Mortgage Capital, Inc. as seller
("DLJMC"), Wilshire Credit Corporation as a servicer ("Wilshire"), Ocwen Federal
Bank FSB as a servicer ("Ocwen") and JPMorgan Chase Bank as trustee (The
"Trustee").
Title of Account: "Credit Suisse First Boston Mortgage Securities Corp., CSFB
Mortgage Pass-Through Certificates, Series 2002-S12"
Account Number:
--------------------------
Address of officer or branch of the Company at which Account is maintained:
------------------------------------
------------------------------------
------------------------------------
[Servicer's Name], AS SERVICER
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
X-0-0
XXXXXXX X-0
ESCROW ACCOUNT LETTER AGREEMENT
[ ], 20__
To: ---------------------------
---------------------------
---------------------------
(The "Depository")
As Servicer under the Pooling and Servicing Agreement, dated as of April
1, 2002, among Credit Suisse First Boston Mortgage Securities Corp. as
depositor, DLJ Mortgage Capital, Inc. as seller ("DLJMC"), Wilshire Credit
Corporation as a servicer ("Wilshire"), Ocwen Federal Bank FSB as a servicer
("Ocwen") and JPMorgan Chase Bank as trustee (The "Trustee") (The "Agreement"),
we hereby authorize and request you to establish an account, as an Escrow
Account pursuant to Section 3.06 of the Agreement, to be designated as "Credit
Suisse First Boston Mortgage Securities Corp., Mortgage Pass-Through
Certificates, Series 2002-S12" All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
[SERVICER'S NAME], AS SERVICER
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
P-2-1
The undersigned, as Depository, hereby certifies that the above described
account has been established under Account Number ________________ at the office
of the Depository indicated above and agrees to honor withdrawals on such
account as provided above. The full amount deposited at any time in the account
will be insured up to applicable limits by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund ("BIF") or the Savings Association
Insurance Fund ("SAIF").
Depository
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
P-2-2
EXHIBIT Q
MONTHLY REMITTANCE ADVICE
1) Standard CPI Reports:
T62C-Monthly Accounting Report
T62E-Liquidation Report
S50Y-Private Pool Detail Report
S214-Summary of Paid in Full Collections
S215-Summary of Collections
P139-Trial Balance
2) Standard CPI Tape Format:
PNB Scheduled Balance Tape
SPNB Determination Diskette/P45K
At such times as [_______________] is no longer the Servicer of the [________]
Mortgage Loans under the Agreement, The Monthly Remittance Advice also shall
include: (i) The aggregate Excess Servicing Fee to be remitted to
[___________________] on the Distribution Date, (ii) The aggregate Prepayment
Penalties collected by the Servicer of such loans during the preceding calendar
month, and (iii) a list of the Mortgage Loans for which Prepayment Penalties are
being remitted (including with respect to each related Mortgage Loan, The loan
number, borrower name and dollar amount of Prepayment Penalties collected for
such Mortgage Loan).
Q-1
EXHIBIT R
CUSTODIAL AGREEMENT
(Available Upon Request)
R-1
EXHIBIT S
FSA POLICY
S-1
FINANCIAL GUARANTY
INSURANCE POLICY
FINANCIAL
SECURITY
ASSURANCESM
Trust: As described in Endorsement No. 1Policy No.: 51275-N
Certificates: $348,500,000 CSFB Mortgage Pass-Through Certificates,
Date of Issuance: 4/25/2002
Series 2002-S12, Class A-1 and Class A-2
FINANCIAL SECURITY ASSURANCE INC. ("Financial Security"), for
consideration received, hereby UNCONDITIONALLY AND IRREVOCABLY GUARANTEES to the
Trustee for the benefit of each Holder, subject only to the terms of this Policy
(which includes each endorsement hereto), the full and complete payment of
Guaranteed Distributions with respect to the Certificates of the Trust referred
to above.
For the further protection of each Holder, Financial Security irrevocably
and unconditionally guarantees payment of the amount of any distribution of
principal or interest with respect to the Certificates made during the Term of
this Policy to such Holder that is subsequently avoided in whole or in part as a
preference payment under applicable law.
Payment of any amount required to be paid under this Policy will be made
following receipt by Financial Security of notice as described in Endorsement
No. 1 hereto.
Financial Security shall be subrogated to the rights of each Holder to
receive distributions with respect to each Certificate held by such Holder to
the extent of any payment by Financial Security hereunder.
Except to the extent expressly modified by Endorsement No. 1 hereto, the
following terms shall have the meanings specified for all purposes of this
Policy. "Holder" means the registered owner of any Certificate as indicated on
the registration books maintained by or on behalf of the Trustee for such
purpose or, if the Certificate is in bearer form, the holder of the Certificate.
"Trustee", "Guaranteed Distributions" and "Term of this Policy" shall have the
meanings set forth in Endorsement No. 1 hereto.
This Policy sets forth in full the undertaking of Financial Security, and
shall not be modified, altered or affected by any other agreement or instrument,
including any modification or amendment thereto. Except to the extent expressly
modified by an endorsement hereto, the premiums paid in respect of this Policy
are nonrefundable for any reason whatsoever. This Policy may not be canceled or
revoked during the Term of this Policy. An acceleration payment shall not be due
under this Policy unless such acceleration is at the sole option of Financial
Security. THIS POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE SECURITY
FUND SPECIFIED IN ARTICLE 76 OF THE NEW YORK INSURANCE LAW.
In witness whereof, FINANCIAL SECURITY ASSURANCE INC. has caused this
Policy to be executed on its behalf by its Authorized Officer.
FINANCIAL SECURITY ASSURANCE INC.
By
---------------------------------
AUTHORIZED OFFICER
A subsidiary of Financial Security
Assurance Holdings Ltd.
000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000 (000) 000-0000
Form 101NY (5/89)
S-2
ENDORSEMENT NO. 1 TO
FINANCIAL GUARANTY INSURANCE POLICY
FINANCIAL SECURITY 000 Xxxx Xxxxxx
ASSURANCE INC. Xxx Xxxx, Xxx Xxxx 00000
TRUST: The Trust created by the Pooling and Servicing Agreement,
dated as of April 1, 2002 among Credit Suisse First Boston
Mortgage Securities Corp. as Depositor, DLJ Mortgage Capital,
Inc., as Seller, Wilshire Credit Corporation, as Servicer,
Ocwen Federal Bank FSB, as Servicer, and XX Xxxxxx Xxxxx Bank,
as Trustee
CERTIFICATES: $348,500,000 CSFB Mortgage Pass-Through Certificates, Series
2002-S12, Class A-1 Certificates and Class A-2 Certificates
Policy No.: 51275-N
Date of Issuance: April 25, 2002
1. Definitions. For all purposes of this Policy, the terms specified below
shall have the meanings or constructions provided below. Terms used herein and
not otherwise defined herein shall have the meanings provided in the Pooling and
Servicing Agreement unless the context shall otherwise require.
"Business Day" means any day other than (i) a Saturday or Sunday, or (ii)
a day on which banking institutions in New York City are authorized or obligated
by law, executive order or governmental decree to be closed.
"Guaranteed Distributions" means, with respect to each Distribution Date,
the distribution to be made to Holders in an aggregate amount equal to (i) with
respect to any Distribution Date, the amount, if any, by which the amount
available to be distributed to the Class A-1 Certificates and the Class A-2
Certificates pursuant to priority set forth in the Pooling and Servicing
Agreement, is less than the Current Interest and Carryforward Interest plus any
Interest Shortfalls, in each case allocable to the Class A-1 Certificates and
the Class A-2 Certificates and (ii) to the extent unpaid on the Final Scheduled
Distribution Date, after payment of all other amounts due to the Class A-1
Certificates and the Class A-2 Certificates, any remaining Class Principal
Balance of the Class A-1 Certificates and the Class A-2 Certificates, in each
case in accordance with the original terms of the Certificates when issued and
without regard to any amendment or modification of the Certificates or the
Pooling and Servicing Agreement except amendments or modifications to which
Financial Security has given its prior written consent. Guaranteed Distributions
shall not include, nor shall coverage be provided under this Policy in respect
of, any taxes, withholding or other charge imposed by any governmental authority
due in connection with the payment of any Guaranteed Distribution to a Holder.
S-3
Policy No.: 51275-N Date of Issuance: April 25, 2002
"Policy" means this Financial Guaranty Insurance Policy and includes each
endorsement thereto.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement dated as of April 1, 2002 among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, DLJ Mortgage Capital, Inc., as Seller, Wilshire
Credit Corporation, as Servicer, Ocwen Federal Bank FSB, as Servicer, and XX
Xxxxxx Chase Bank, as Trustee, as amended from time to time with the consent of
Financial Security.
"Receipt" and "Received" mean actual delivery to Financial Security and to
the Fiscal Agent (as defined below), if any, prior to 12:00 noon, New York City
time, on a Business Day; delivery either on a day that is not a Business Day, or
after 12:00 noon, New York City time, shall be deemed to be receipt on the next
succeeding Business Day. If any notice or certificate given hereunder by the
Trustee is not in proper form or is not properly completed, executed or
delivered, it shall be deemed not to have been Received, and Financial Security
or its Fiscal Agent shall promptly so advise the Trustee and the Trustee may
submit an amended notice.
"Term Of This Policy" means the period from and including the Date of
Issuance to and including the date on which (i) the Certificate Balances of all
of the Certificates is zero, (ii) any period during which any payment on the
Certificates could have been avoided in whole or in part as a preference payment
under applicable bankruptcy, insolvency, receivership or similar law has
expired, and (iii) if any proceedings requisite to avoidance as a preference
payment have been commenced prior to the occurrence of (i) and (ii), a final and
nonappealable order in resolution of each such proceeding has been entered.
"Trustee" means XX Xxxxxx Xxxxx Bank, in its capacity as Trustee under the
Pooling and Servicing Agreement and any successor in such capacity.
2. Notices and Conditions to Payment in Respect of Guaranteed
Distributions. Following Receipt by Financial Security of a notice and
certificate from the Trustee in the form attached as Exhibit A to this
Endorsement, Financial Security will pay any amount payable hereunder in respect
of Guaranteed Distributions out of the funds of Financial Security on the later
to occur of (a) 12:00 noon, New York City time, on the third Business Day
following such Receipt; and (b) 12:00 noon, New York City time, on the
Distribution Date to which such claim relates. Payments due hereunder in respect
of Guaranteed Distributions will be disbursed by wire transfer of immediately
available funds to the FSA Account established pursuant to the Pooling and
Servicing Agreement or, if no such FSA Account has been established, to the
Trustee.
Financial Security shall be entitled to pay any amount hereunder in
respect of Guaranteed Distributions, including any acceleration payment, whether
or not any notice and certificate shall have been Received by Financial Security
as provided above, provided, however, that by acceptance of this Policy the
Trustee agrees to provide to Financial Security, upon Financial Security's
request to the Trustee, a notice and certificate in respect of any such payments
made by Financial Security. Financial Security shall be entitled to pay
principal hereunder on an accelerated basis if Financial
S-4
Policy No.: 51275-N Date of Issuance: April 25, 2002
Security shall so elect in its sole discretion, at any time or from time to
time, in whole or in part, at an earlier Distribution Date than provided in the
definition of "Guaranteed Distributions," if such principal would have been
payable under the Fooling and Servicing Agreement were funds sufficient to make
such payment available to the Trustee for such purpose. Guaranteed Distributions
insured hereunder shall not include interest, in respect of principal paid
hereunder on an accelerated basis, accruing from after the date of such payment
of principal. Financial Security's obligations hereunder in respect of
Guaranteed Distributions shall be discharged to the extent funds are disbursed
by Financial Security as provided herein whether or not such funds are properly
applied by the Trustee.
3. Notices and Conditions to Payment in Respect of Guaranteed
Distributions Avoided as Preference Payments. If any Guaranteed Distribution is
avoided as a preference payment under applicable bankruptcy, insolvency,
receivership or similar law, Financial Security will pay such amount out of the
funds of Financial Security on the later of (a) the date when due to be paid
pursuant to the Order referred to below or (b) the first to occur of (i) the
fourth Business Day following Receipt by Financial Security from the Trustee of
(A) a certified copy of the order of the court or other governmental body which
exercised jurisdiction to the effect that the Holder is required to return
principal or interest distributed with respect to the Certificates during the
Term Of This Policy because such distributions were avoidable as preference
payments under applicable bankruptcy law (the "Order"), (B) a certificate of the
Holder that the Order has been entered and is not subject to any stay and (C) an
assignment duly executed and delivered by the Holder, in such form as is
reasonable required by Financial Security and provided to the Holder by
Financial Security, irrevocably assigning to Financial Security all rights and
claims of the Holder relating to or arising under the Certificates against the
debtor which made such preference payment or other respect to such preference
payment or (ii) the date of Receipt by Financial Security from the Trustee of
the items referred to in clauses (A), (B) and (C) above if, at least four
business days prior to such date of Receipt, Financial Security shall have
received written notice Trustee that such items were to be delivered on such
date and such date was specified in such notice. Such payment shall be disbursed
to the receiver, conservator, debtor-in-possession or trustee in bankruptcy
named in the Order and not to the Trustee or any Holder directly (unless a
Holder has previously paid such amount to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the Order, in which case
such payment shall be disbursed to the Trustee for distribution to such Holder
upon proof of such payment reasonably satisfactory to Financial Security). In
connection with the foregoing, Financial Security shall have the right provided
pursuant to Section 4.11 of the Pooling and Servicing Agreement.
4. Governing Law. This Policy shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflict of laws principles thereof.
5. Fiscal Agent. At any time during the Term of This Policy, Financial
Security may appoint a fiscal agent (the "Fiscal Agent") for purposes of this
Policy by written notice to the Trustee at the notice address specified in the
Pooling and Servicing Agreement specifying the name and notice address of the
Fiscal Agent. From and after the date of receipt of such notice by the Trustee,
(i) copies of all notices and documents required to be delivered to Financial
Security pursuant to this Policy shall be simultaneously delivered to the Fiscal
Agent and to Financial Security and shall not
S-5
Policy No.: 51275-N Date of Issuance: April 25, 2002
be deemed Received until Received by both and (ii) all payments required to be
made by Financial Security under this Policy may be made directly by Financial
Security or by the Fiscal Agent on behalf of Financial Security. The Fiscal
Agent is the agent of Financial Security only and the Fiscal Agent shall in no
event be liable to any Holder for any acts of the Fiscal Agent or any failure of
Financial Security to deposit, or cause to be deposited, sufficient funds to
make payments due under this Policy.
6. Waiver of Defenses. To the fullest extent permitted by applicable law,
Financial Security agrees not to assert, and hereby waives, for the benefit of
each Holder, all rights (whether by counterclaim, setoff or otherwise) and
defenses (including, without limitation, the defense of fraud), whether acquired
by subrogation, assignment or otherwise, to the extent that such rights and
defenses may be available to Financial Security to avoid payment of its
obligations under this Policy in accordance with the express provisions of this
Policy.
7. Notices. All notices to be given hereunder shall be in writing (except
as otherwise specifically provided herein) and shall be mailed by registered
mail or personally delivered or telecopied to Financial Security as follows:
Financial Security Assurance Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: -Managing Director-Transaction Oversight
Re: CSFB ABS Trust Series 2002-S12
Policy No.: 51275-N
Telecopy No.: (000) 000-0000
Confirmation: (000) 000-0000
Financial Security may specify a different address or addresses by writing
mailed or delivered to the Trustee.
8. Priorities. In the event any term or provision of the face of this
Policy is inconsistent with the provisions of this Endorsement, the provisions
of this Endorsement shall take precedence and shall be binding.
9. Exclusions From Insurance Guaranty Funds. This Policy is not covered by
the Property/Casualty Insurance Security Fund specified in Article 76 of the New
York Insurance Law. This Policy is not covered by the Florida Insurance Guaranty
Association created under Part H of Chapter 631 of the Florida Insurance Code.
In the event Financial Security were to become insolvent, any claims arising
under this Policy are excluded from coverage by the California Insurance
Guaranty Association, established pursuant to Article 14.2 of Chapter 1 of Part
2 of Division 1 of the California Insurance Code.
10. Surrender of Policy. The Trustee shall surrender this Policy to
Financial Security for cancellation upon expiration of the Term of This Policy.
S-6
Policy No.: 51275-N Date of Issuance: April 25, 2002
IN WITNESS WHEREOF, FINANCIAL SECURITY ASSURANCE INC. has caused this
Endorsement No. to be executed by its Authorized Officer.
FINANCIAL SECURITY ASSURANCE INC.
By:
-----------------------------------
Authorized Officer
S-7
EXHIBIT T
DATA FIELDS FOR OCWEN SERVICED LOANS
TRANSFERRED TO WILSHIRE
(Available Upon Request)
T-1
EXHIBIT U
CHARGED OFF LOAN DATA REPORT
(Available Upon Request)
U-1
SCHEDULE I
MORTGAGE LOAN SCHEDULE
(Available Upon Request)
I-1
SCHEDULE II
SELLER'S REPRESENTATIONS AND WARRANTIES
(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 Servicers
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
(vi) there are no actions, litigation, suits or proceedings pending or to
the knowledge of the Seller, 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.
II-1
SCHEDULE IIIA
WILSHIRE REPRESENTATIONS AND WARRANTIES
(i) Wilshire is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation;
(ii) Wilshire 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 deliver by Wilshire of this Agreement have been
duly authorized by all necessary corporate action on the part of Wilshire; 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 Wilshire or its properties or the
certificate of incorporation or bylaws of Wilshire, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on Wilshire ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) this Agreement has been duly executed and delivered by Wilshire and,
assuming due authorization, execution and delivery by the Trustee, The Seller
and the Depositor, constitutes a valid and binding obligation of Wilshire
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) there are no actions, litigation, suits or proceedings pending or to
the knowledge of Wilshire, threatened against Wilshire 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 Wilshire if determined adversely to
Wilshire would reasonably be expected to materially and adversely affect
Wilshire's ability to perform its obligations under this Agreement, other than
as Servicer has previously advised Seller; and Wilshire 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.
IIIA-1
SCHEDULE IIIB
OCWEN REPRESENTATIONS AND WARRANTIES
(i) Ocwen is a federal savings bank duly organized, validly existing and
in good standing under the laws of the United States;
(ii) Ocwen 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 deliver by Ocwen of this Agreement have been duly
authorized by all necessary corporate action on the part of Ocwen; 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 Ocwen or its properties or the charter or
bylaws of Ocwen, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on Ocwen's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(iv) this Agreement has been duly executed and delivered by Ocwen and,
assuming due authorization, execution and delivery by the Trustee, the Seller,
Wilshire and the Depositor, constitutes a valid and binding obligation of Ocwen
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 general principles of equity, whether
enforcement is sought in a proceeding in equity or at law); and
(v) there are no actions, litigation, suits or proceedings pending or to
the knowledge of Ocwen, threatened against Ocwen 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 Ocwen if determined adversely to Ocwen
would reasonably be expected to materially and adversely affect Ocwen's ability
to perform its obligations under this Agreement, other than as Ocwen has
previously advised Seller; and Ocwen 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.
IIIB-1
SCHEDULE IV
REPRESENTATIONS AND WARRANTIES RELATING TO THE MORTGAGE LOANS
(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, 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.
(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 second lien on the Mortgaged Property, all buildings on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing
securing the Mortgage Note's original principal balance. The Mortgage and the
Mortgage Note do not contain any evidence of any security interest or other
interest or right thereto. Such lien is free and clear of all adverse claims,
liens and encumbrances having priority over the first or second lien, as
applicable, of the Mortgage subject only to (1) with respect to any Second
Mortgage Loan, The related First Mortgage Loan, (2) The lien of non-delinquent
current real property taxes and assessments not yet due and payable, (3)
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
IV-1
value of the Mortgaged Property as set forth in such appraisal, and (4) 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 (1) with respect to any First Mortgage Loan, a valid, subsisting,
enforceable and perfected first lien and first priority security interest and
(2) with respect to any second lien Mortgage Loan, a valid, subsisting,
enforceable and perfected second lien and second priority security interest, in
each case, 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.
(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 original(s) 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.
IV-2
(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 maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from the Mortgagor.
(xvi) The Mortgage creates a first or second lien or a first or second
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) [reserved]
(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.
IV-3