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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
DLJ MORTGAGE CAPITAL, INC.,
Seller
CALMCO SERVICING L.P.,
Servicer
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
Seller and Servicer
GREENPOINT MORTGAGE FUNDING, INC.,
Seller and Servicer
MIDWEST LOAN SERVICES, INC.,
Servicer
and
BANK ONE, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2001
relating to
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2001-9
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Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund..............................................................43
SECTION 2.02 Acceptance by the Trustee.............................................................46
SECTION 2.03 Representations and Warranties of the Sellers and Servicers...........................47
SECTION 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..............49
SECTION 2.05 Delivery of Opinion of Counsel in Connection with Substitutions.......................50
SECTION 2.06 Issuance of Certificates..............................................................50
SECTION 2.07 REMIC Provisions......................................................................50
SECTION 2.08 Covenants of each Servicer............................................................54
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01 Servicers to Service Mortgage Loans...................................................55
SECTION 3.02 Subservicing; Enforcement of the Obligations of Subservicers..........................56
SECTION 3.03 [Reserved]............................................................................57
SECTION 3.04 Trustee to Act as Servicer............................................................57
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts; Certificate Account................58
SECTION 3.06 Establishment of and Deposits to Escrow Accounts; Permitted Withdrawals from
Escrow Accounts; Payments of Taxes, Insurance and Other Charges.......................61
SECTION 3.07 Access to Certain Documentation and Information Regarding the Mortgage Loans;
Inspections...........................................................................62
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and Certificate Account............63
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment Insurance and Primary
Insurance Policy; Claims; Restoration of Mortgaged Property...........................64
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements.............................68
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.................................................................................69
SECTION 3.12 Trustee to Cooperate; Release of Mortgage Files.......................................73
SECTION 3.13 Documents, Records and Funds in Possession of a Servicer to be Held for the
Trustee...............................................................................73
SECTION 3.14 Servicing Fee.........................................................................74
SECTION 3.15 Access to Certain Documentation.......................................................74
SECTION 3.16 Annual Statement as to Compliance.....................................................74
SECTION 3.17 Annual Independent Public Accountants' Servicing Statement; Financial
Statements............................................................................75
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions Insurance.......................75
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution............................................................77
SECTION 4.02 Allocation of Losses..................................................................82
SECTION 4.03 Policy Matters........................................................................83
SECTION 4.04 Monthly Statements to Certificateholders..............................................87
SECTION 4.05 Servicer to Cooperate.................................................................89
SECTION 4.06 Cross-Collateralization; Adjustments to Available Funds...............................89
ARTICLE V
ADVANCES BY A SERVICER
SECTION 5.01 Advances by a Servicer................................................................91
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates......................................................................92
SECTION 6.02 Registration of Transfer and Exchange of Certificates.................................93
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.....................................98
SECTION 6.04 Persons Deemed Owners.................................................................98
SECTION 6.05 Access to List of Certificateholders' Names and Addresses.............................98
SECTION 6.06 Maintenance of Office or Agency.......................................................99
SECTION 6.07 Book-Entry Certificates...............................................................99
SECTION 6.08 Notices to Clearing Agency...........................................................100
SECTION 6.09 Definitive Certificates..............................................................100
ARTICLE VII
THE DEPOSITOR, THE SELLERS AND THE SERVICERS
SECTION 7.01 Liabilities of the Sellers, the Depositor and the Servicers..........................101
SECTION 7.02 Merger or Consolidation of the Depositor, the Sellers, or the Servicers..............101
SECTION 7.03 Limitation on Liability of the Depositor, the Sellers, and the Servicers and
Others...............................................................................102
SECTION 7.04 Servicer Not to Resign; Transfer of Servicing........................................102
SECTION 7.05 Sellers and Servicers May Own Certificates...........................................103
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default....................................................................104
SECTION 8.02 Trustee to Act; Appointment of Successor.............................................105
SECTION 8.03 Notification to Certificateholders...................................................106
SECTION 8.04 Waiver of Events of Default..........................................................107
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee....................................................................108
SECTION 9.02 Certain Matters Affecting the Trustee................................................109
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans................................111
SECTION 9.04 Trustee May Own Certificates.........................................................111
SECTION 9.05 Trustee's Fees and Expenses..........................................................111
SECTION 9.06 Eligibility Requirements for Trustee.................................................111
SECTION 9.07 Resignation and Removal of Trustee...................................................112
SECTION 9.08 Successor Trustee....................................................................113
SECTION 9.09 Merger or Consolidation of Trustee...................................................113
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee........................................113
SECTION 9.11 Office of the Trustee................................................................114
SECTION 9.12 Tax Return...........................................................................115
SECTION 9.13 Periodic Filings.....................................................................115
SECTION 9.14 Determination of LIBOR...............................................................115
ARTICLE X
TERMINATION
SECTION 10.01 Termination upon Liquidation or Repurchase of all Mortgage Loans.....................116
SECTION 10.02 Procedure Upon Optional Termination..................................................117
SECTION 10.03 Additional Termination Requirements..................................................117
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment............................................................................119
SECTION 11.02 Recordation of Agreement; Counterparts...............................................120
SECTION 11.03 Governing Law........................................................................120
SECTION 11.04 Intention of Parties.................................................................121
SECTION 11.05 Notices..............................................................................122
SECTION 11.06 Severability of Provisions...........................................................123
SECTION 11.07 Limitation on Rights of Certificateholders...........................................123
SECTION 11.08 Certificates Nonassessable and Fully Paid............................................124
SECTION 11.09 Protection of Assets.................................................................124
EXHIBITS
Exhibit A: Form of Class A Certificate............................................................A-1
Exhibit B: Form of Class B Certificate............................................................B-1
Exhibit C: Form of Class AR Certificate...........................................................C-1
Exhibit D: Form of Class X Certificate............................................................D-1
Exhibit E: Form of Class P Certificate............................................................E-1
Exhibit F: Servicer Information...................................................................F-1
Exhibit G: [Reserved].............................................................................G-1
Exhibit H: Schedule of Mortgage Loans.............................................................H-1
Exhibit I: Form of Initial Certification of Trustee...............................................I-1
Exhibit J: Form of Final Certification of Trustee.................................................J-1
Exhibit K: Form of Request for Release............................................................K-1
Exhibit L: Form of Transferor Certificate.........................................................L-1
Exhibit M-1: Form of Investment Letter..............................................................M-1
Exhibit M-2: Form of Rule 144A Letter...............................................................M-2
Exhibit N: Form of Investor Transfer Affidavit and Agreement......................................N-1
Exhibit O: Form of Transfer Certificate...........................................................O-1
Exhibit P: GEMICO PMI Policy......................................................................P-1
Exhibit Q: Class III-A-1 Policy...................................................................Q-1
SCHEDULES
Schedule I: Mortgage Loan Schedule.................................................................I-1
Schedule II: Representations and Warranties of the Sellers/Servicers...............................II-1
Schedule III: Representations and Warranties as to the Mortgage Loans..............................III-1
Schedule IV: GEMICO PMI Mortgage Loans.............................................................IV-1
THIS POOLING AND SERVICING AGREEMENT, dated as of March 1, 2001, is
hereby executed by and between CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware corporation, as depositor (the "Depositor"), DLJ MORTGAGE
CAPITAL, INC., a Delaware corporation, as a seller (a "Seller"), GREENPOINT
MORTGAGE FUNDING, INC. ("GreenPoint"), a New York corporation, in its capacity
as a seller (a "Seller") and a servicer (a "Servicer"), WASHINGTON MUTUAL
MORTGAGE SECURITIES CORP. ("WMMSC"), a Delaware corporation, in its capacity
as a seller (a "Seller") and a servicer (a "Servicer"), MIDWEST LOAN SERVICES,
INC. ("MLS"), a Delaware corporation, in its capacity as a servicer (a
"Servicer"), CALMCO SERVICING L.P., a Delaware limited partnership, in its
capacity as a servicer (a "Servicer"), and Bank One, National Association, a
national banking association, as trustee (the "Trustee"). Capitalized terms
used in this Agreement and not otherwise defined will have the meanings
assigned to them in Article I below.
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund (other than the
Call Option) for federal income tax purposes will consist of two REMICs (the
"Master REMIC" and the "Subsidiary REMIC"). The Subsidiary REMIC will consist
of all of the assets constituting the Trust Fund corresponding to Loan Group
I, Loan Group II and Loan Group III and will be evidenced by the Class
XX-X-X-0, XX-X-X-0, XX-X-X-0, XX-X-X-0, XX-X-X-0, XX-X-X-0, XX-X-X-0,
XX-X-X-0, XX-X-X-00, XX-X-X-00, XX-X-X-00, XX-XX-X-0, XX-XX-X-0, XX-XX-X-0,
XX-XX-X-0, XX-XXX-X-0, LT-III-A-2, LT-I-X-1, LT-I-X-2, LT-II-X, LT-III-X,
LT-II-P, LT-III-P, XX-X-0, XX-X-0, XX-X-0, XX-X-0, XX-X-0, XX-X-0 and Class
LT-AR (the "Subsidiary REMIC Interests") which will be uncertificated and will
represent the "regular interests" in the Subsidiary REMIC and the R-1 Interest
as the single "residual interest" in the Subsidiary REMIC. The Trustee will
hold the Subsidiary REMIC Regular Interests. The Master REMIC will consist of
the Subsidiary REMIC Regular Interests and will be evidenced by the Regular
Certificates, and the MR Interest as the single "residual interest" in the
Master REMIC. The Class AR Certificates will represent beneficial ownership of
the R-1 Interest and the MR Interest. The "latest possible maturity date" for
federal income tax purposes of all interests created hereby will be the Latest
Possible Maturity Date.
The following table sets forth characteristics of the
Certificates, each of which, except for the Class AR Certificates, is hereby
designated as a "regular interest" in the Master REMIC, together with the
minimum denominations and integral multiples in excess thereof in which such
Classes shall be issuable (except that one Certificate of each Class of
Certificates may be issued in a different amount and, in addition, one
Residual Certificate representing the Tax Matters Person Certificate may be
issued in a different amount):
Integral
Class Initial Multiples
Principal Pass-Through Minimum in Excess
Balance Rate (per annum) Denomination of Minimum
------------------------- ------------------------- -------------------- --------------------- --------------------
Class I-A-1 $97,134,626 7.0000% $25,000 $1
Class I-A-2 $6,000,000 7.0000% 1,000 1
Class I-A-3 $6,927,000 7.0000% 1,000 1
Class I-A-4 $13,349,000 7.0000% 25,000 1
Class I-A-5 $1,959,000 7.0000% 1,000 1
Class I-A-6 $2,011,000 7.0000% 1,000 1
Class I-A-7 $1,489,000 7.0000% 1,000 1
Class I-A-8 $1,364,000 7.0000% 1,000 1
Class I-A-9 Notional (1) Variable (2) 25,000 1
Class I-A-10 $42,361,242 Variable (3) 25,000 1
Class I-A-11 $1,050,000 9.0000% 25,000 1
Class I-A-12 $5,987,758 (4) 25,000 1
Class II-A-1 $60,000,000 Variable (5) 25,000 1
Class II-A-2 Notional (6) Variable (7) 25,000 1
Class II-A-3 $3,120,125 8.5000% 25,000 1
Class II-A-4 $3,628,649 (4) 25,000 1
Class II-A-5 $56,625,259 8.5000% 25,000 1
Class III-A-1 $61,284,324 7.5000% 25,000 1
Class III-A-2 $6,809,000 7.5400% 25,000 1
Class I-X-1 Notional (8) 7.2500% 25,000 1
Class I-X-2 Notional (9) 7.2500% 25,000 1
Class II-X Notional (10) 8.2500% 25,000 1
Class III-X Notional (11) 7.5400%
Class II-P $49,869 (4) 25,000 1
Class III-P $155,143 (4) 25,000 1
Class AR $100 7.0000% (13) N/A
Class B-1 $4,950,700 Variable (12) 25,000 1
Class B-2 $2,094,500 Variable (12) 25,000 1
Class B-3 $952,100 Variable (12) 25,000 1
Class B-4 $380,800 Variable (12) (14) N/A
Class B-5 $571,300 Variable (12) (14) N/A
Class B-6 $571,244 Variable (12) (14) N/A
______________
(1) The Class I-A-9 Certificates accrue interest on the related Class
Notional Amount, initially equal to approximately $42,361,242.
(2) The initial Pass-Through Rate for the Class I-A-9 Certificates is 2.9313%
per annum. After the first Distribution Date the Pass-Through Rate for
the Class I-A-9 Certificates shall be a per annum rate equal to 8.5000%
minus LIBOR, but no less than 0.00% per annum.
(3) The initial Pass-Through Rate for the Class I-A-10 Certificates is
6.0687% per annum. After the first Distribution Date the Pass-Through
Rate for the Class I-A-10 Certificates shall be a per annum rate equal to
LIBOR plus 0.5000%, but nor more than 9.0000% per annum.
(4) This class of certificates is not entitled to payments in respect of
interest.
(5) The initial Pass-Through Rate for the Class II-A-1 Certificates is
6.0887% per annum. After the first Distribution Date the Pass-Through
Rate for the Class II-A-1 Certificates shall be a per annum rate equal to
LIBOR plus 0.5200%, but no more than 8.5000% per annum.
(6) The Class II-A-2 Certificates accrue interest on the related Class
Notional Amount, initially equal to approximately $60,000,000.
(7) The initial Pass-Through Rate for the Class II-A-2 Certificates is
2.4113% per annum. After the first Distribution Date the Pass-Through
Rate for the Class II-A-2 Certificates shall be a per annum rate equal to
7.9800% minus LIBOR, but no less than 0.00% per annum.
(8) The Class I-X-1 Certificates will accrue interest on the related Class
Notional Amount, initially equal to approximately $4,413,286.
(9) The Class I-X-2 Certificates will accrue interest on the related Class
Notional Amount, initially equal to approximately $391,199.
(10) The Class II-X Certificates will accrue interest on the related Class
Notional Amount, initially equal to approximately $269,728.
(11) The Class III-X Certificates will accrue interest on the related Class
Notional Amount, initially equal to approximately $291,144.
(12) The Pass-Through Rate for the Class B Certificates will equal, on any
Distribution Date, the quotient, expressed as a percentage, of (a) the
sum of (i) the product of (x) 7.25% and (y) the Subordinate Component
Balance for Loan Group I immediately before that Distribution Date, (ii)
the product of (x) 8.25% and (y) the Subordinate Component Balance for
Loan Group II immediately before that distribution date and (iii) the
product of (x) 7.54% and (y) the Subordinate Component Balance for Loan
Group III immediately before that distribution date divided by (b) the
sum of the Subordinate Component Balances for Loan Group I, Loan Group II
and Loan Group III immediately before that distribution date. The
Pass-Through for the Class B Certificates applicable to the first
Distribution Date will be approximately 7.6357% per annum.
(13) The Class AR Certificates are issued in minimum Percentage Interests of
20%
(14) The Class B-4, Class B-5 and Class B-6 Certificates will each be issued
in a single certificate.
The Subsidiary REMIC Regular Interests and the SR Interest shall
have the following principal balances and pass-through rates, and will
allocate principal and interest, in the manner set forth in the following
table:
Initial Initial
Principal Pass-Through Allocation of
Subsidiary REMIC Interest Balance Rate Principal Allocation of Interest
LT-I-A-1 $97,134,626 7.000% X-X-0 X-X-0
XX-X-X-0 $6,000,000 7.000% X-X-0 X-X-0
XX-X-X-0 $6,927,000 7.000% X-X-0 X-X-0
XX-X-X-0 $13,349,000 7.000% X-X-0 X-X-0
XX-X-X-0 $1,959,000 7.000% X-X-0 X-X-0
XX-X-X-0 $2,011,000 7.000% X-X-0 X-X-0
XX-X-X-0 $1,489,000 7.000% X-X-0 X-X-0
XX-X-X-0 $1,364,000 7.000% X-X-0 X-X-0
XX-X-X-00 $42,361,242 9.000% X-X-00 X-X-0, X-X-00
XX-X-X-00 $1,050,000 7.250% X-X-00 X-X-00
XX-X-X-00 $5,987,758 (2) I-A-12 N/A
LT-II-A-1 $60,000,000 8.500% XX-X-0 XX-X-0, XX-X-0
XX-XX-X-0 $3,120,125 8.500% XX-X-0 XX-X-0
XX-XX-X-0 $3,628,649 (2) II-A-4 N/A
LT-II-A-5 $56,625,259 8.2500% XX-X-0 XX-X-0
XX-XXX-X-0 $61,284,324 7.5000% XXX-X-0 XXX-X-0
XX-XXX-X-0 $6,809,000 7.5400% III-A-2 III-A-2
LT-I-X-1 (1) 7.25% N/A I-X-1
LT-I-X-2 (1) 7.25% N/A I-X-2
LT-II-X (1) 8.25% N/A II-X
LT-III-X (1) 7.54% N/A III-X
LT-II-P $49,869 (2) II-P N/A
LT-III-P $155,143 (2) III-P N/A
LT-B-1 $4,950,700 (4) B-1 B-1
LT-B-2 $2,094,500 (4) B-2 B-2
LT-B-3 $952,100 (4) B-3 B-3
LT-B-4 $380,800 (4) B-4 B-4
LT-B-5 $571,300 (4) B-5 B-5
LT-B-6 $571,244 (4) B-6 B-6
LT-AR $100 7.000% AR AR
R-1 (3) $0 N/A N/A N/A
______________
(1) Interest will accrue on the notional amount of this class.
(2) This class of certificates is not entitled to payments in respect of
interest.
(3) The R-1 Interest is the residual interest in the Subsidiary REMIC and
will not be entitled to distributions of interest or principal.
(4) The pass-through rates for the Class B Certificates (the "Group B
Certificate Interest Rate") will equal, on any distribution date, the
quotient, expressed as a percentage, of (a) the sum of (i) the product of
(x) 7.25% and (y) the Subordinate Component Balance for loan group I
immediately before that distribution date, (ii) the product of (x) 8.25%
and (y) the Subordinate Component Balance for loan group II immediately
before that distribution date and (iii) the product of (x) 7.54% and (y)
the Subordinate Component Balance for loan group III immediately before
that distribution date divided by (b) the sum of the Subordinate
Component Balances for loan group I, loan group II and loan group III
immediately before that distribution date. The initial Group B
Certificate Interest Rate will be approximately 7.6357% per annum.
On each Distribution Date, each Subsidiary REMIC Interest will have a
principal balance and pass through rate equal to that of its Corresponding
Master REMIC Class following the application of scheduled payments of
principal, prepayments and Realized Losses.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates........ All Classes of Certificates other than the Physical
Certificates.
Class A Certificates........... The Class I-A-1, Class I-A-2, Class I-A-3, Class I-A-4,
Class I-A-5, Class I-A-6, Class I-A-7, Class I-A-8,
Class I-A-9, Class I-A-10, Class I-A-11, Class I-A-12,
Class II-A-1, Class II-A-2, Class II-A-3, Class II-A-4,
Class II-A-5, Class III-A-1 and Class III-A-2
Certificates.
Class B Certificates........... The Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
Class P Certificates........... The Class II-P and Class III-P Certificates.
Class X Certificates........... The Class I-X-1, Class I-X-2, Class II-X and Class III-X
Certificates.
ERISA-Restricted Certificates.. The Residual Certificates, the Private Certificates and
any Certificates that do not satisfy the applicable
ratings requirement under the Underwriter's Exemption.
Group I Certificates........... The Class I-A-1, Class I-A-2, Class I-A-3, Class I-A-4,
Class I-A-5, Class I-A-6, Class I-A-7, Class I-A-8,
Class I-A-9, Class I-A-10, Class I-A-11, Class I-A-12,
Class AR, Class I-X-1 and Class I-X-2 Certificates.
Group II Certificates.......... The Class II-A-1, Class II-A-2, Class II-A-3,
Class II-A-4, Class II-A-5, Class II-X and Class II-P
Certificates.
Group III Certificates......... The Class III-A-1, Class III-A-2, Class III-X and Class
III-P Certificates.
Notional Amount Certificates... The Class I-A-9, Class II-A-2, Class I-X-1, Class 1-X-2,
Class II-X and Class III-X Certificates.
LIBOR Certificates............. The Class I-A-9, Class I-A-10, Class II-A-1 and Class
II-A-2 Certificates.
Offered Certificates........... All Classes of Certificates other than the Private
Certificates.
Private Certificates........... The Class B-4, Class B-5 and Class B-6 Certificates.
Physical Certificates.......... The Class AR Certificates and the Private Certificates.
Rating Agencies................ Xxxxx'x, Fitch and S&P.
Regular Certificates........... All Classes of Certificates other than the Class AR
Certificates.
Residual Certificates.......... The Class AR Certificates.
Senior Certificates............ The Class A, Class P, Class X and Class AR Certificates.
Subordinate Certificates....... The Class B Certificates.
All covenants and agreements made by the Depositor herein are for
the benefit and security of the Certificateholders. The Depositor is entering
into this Agreement, and the Trustee is accepting the trusts created hereby
and thereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged. The principal balance of the Mortgage Loans
as of the Cut-off Date is $380,825,741.04.
The parties hereto intend to effect an absolute sale and assignment
of the Mortgage Loans to the Trustee for the benefit of Certificateholders
under this Agreement. However, the Depositor, GreenPoint and WMMSC will
hereunder absolutely assign and, as a precautionary matter grant a security
interest, in and to its rights, if any, in the related Mortgage Loans to the
Trustee on behalf of Certificateholders to ensure that the interest of the
Certificateholders hereunder in the Mortgage Loans is fully protected.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicers, the Sellers and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Accrual Certificates: The Class I-A-11 and Class II-A-3
Certificates.
Accrual Period: For any interest bearing Class of Certificates other
than the LIBOR Certificates and any Distribution Date, the calendar month
immediately preceding the related Distribution Date, and with respect to the
LIBOR Certificates, the period beginning on the immediately preceding
Distribution Date (or the Closing Date, in the case of the first Accrual
Period) and ending on the day immediately preceding the related Distribution
Date.
Advance: The payment required to be made by a Servicer with respect
to any Distribution Date pursuant to Section 5.01.
Adverse REMIC Event: As defined in Section 2.07(f).
Agreement: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto.
Aggregate Loan Balance: As of any date of determination will be
equal to the aggregate of the Stated Principal Balances of the Mortgage Loans
as of the last day of the prior month.
Aggregate Loan Group Balance: As to any Loan Group and as of any
date of determination will be equal to the aggregate of the Stated Principal
Balances of the Mortgage Loans in that Loan Group as of the last day of the
prior month.
Ancillary Income: All income derived from the Mortgage Loans, other
than Servicing Fees, including but not limited to, late charges, Prepayment
Penalties, prepayment fees, fees received with respect to checks or bank
drafts returned by the related bank for non-sufficient funds, assumption fees,
optional insurance administrative fees and all other incidental fees and
charges.
Appraised Value: The appraised value of the Mortgaged Property based
upon the appraisal made for the originator at the time of the origination of
the related Mortgage Loan or the sales price of the Mortgaged Property at the
time of such origination, whichever is less, or with respect to any Mortgage
Loan that represents a refinancing, the lower of the appraised value at
origination or the appraised value of the Mortgaged Property based upon the
appraisal made at the time of such refinancing.
Assignment and Assumption Agreement: That certain assignment and
assumption agreement dated as of March 1, 2001, by and between DLJ Mortgage
Capital, Inc., as assignor and the Depositor, as assignee, relating to the
Mortgage Loans.
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.
Available Distribution Amount: For any Distribution Date and each
Loan Group, the sum of:
(a) all scheduled installments of interest (net of the related
Servicing Fees and Trustee Fees) and principal due on the Due Date in the
month in which that Distribution Date occurs and received prior to the related
Determination Date on the related Mortgage Loans, together with any Advances
for the related Mortgage Loans;
(b) all Insurance Proceeds (to the extent not applied to restoration
of the Mortgaged Property or released to the Mortgagor in accordance with the
applicable Servicer's standard servicing procedures), all proceeds due under
the GEMICO PMI Policy and Other Liquidation Proceeds received during the
calendar month preceding the month of that Distribution Date on the related
Mortgage Loans, in each case net of unreimbursed expenses incurred in
connection with a liquidation or foreclosure and unreimbursed Advances, if
any;
(c) all Principle Prepayments received during the applicable
Prepayment Period on the related Mortgage Loans, exclusive of Prepayment
Penalties;
(d) amounts received for that Distribution Date in respect of the
substitution of a related Mortgage Loan, the purchase of a related Deleted
Mortgage Loan, or a repurchase of a related Mortgage Loan by the related
Seller or Servicer as of that Distribution Date;
(e) any amounts payable as Compensating Interest by the applicable
Servicer on that Distribution Date on the related Mortgage Loans; and
(f) minus, in the case of clauses (a) through (d) above, the amounts
to which the applicable Servicer is entitled under this Agreement with respect
to the related Mortgage Loans pursuant to Section 3.08, and minus, with
respect to Group III, the MBIA Premium, and the GEMICO PMI Fee on the Mortgage
Loans covered under the GEMICO PMI Policy in the related Loan Group.
Balloon Loan: Any Mortgage Loan which, by its terms, does not fully
amortize the principal balance thereof by its stated maturity and this
requires a payment at the stated maturity larger than the monthly payments due
thereunder.
Bankruptcy Code: The United States Bankruptcy Code, as amended from
time to time (11 U.S.C.).
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: A Deficient Valuation or Debt Service Reduction;
provided, however, that a Bankruptcy Loss shall not be deemed a Bankruptcy
Loss hereunder so long as the related Servicer has notified the Trustee in
writing that such Servicer is diligently pursuing any remedies that may exist
in connection with the related Mortgage Loan and either (A) the related
Mortgage Loan is not in default with regard to payments due thereunder or (B)
delinquent payments of principal and interest under the related Mortgage Loan
and any related escrow payments in respect of such Mortgage Loan are being
advanced on a current basis by the Servicer, in either case without giving
effect to any Debt Service Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss
Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to the Certificates since the Cut-off Date and (ii) any permissible
reductions in the Bankruptcy Loss Coverage Amount as evidenced by a letter of
each Rating Agency to the Trustee to the effect that any such reduction will
not result in a downgrading, or otherwise adversely affect, of the then
current ratings (without regard to the Class III-A-1 Policy) assigned to such
Classes of Certificates rated by it.
Beneficial Holder: A Person holding a beneficial interest in any
Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate.
Book-Entry Certificates: As specified in the Preliminary Statement.
Book-Entry Form: Any Certificate held through the facilities of the
Depository.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in New York or the state in which any
Servicer the Certificate Insurer or the Corporate Trust Office are located are
authorized or obligated by law or executive order to be closed.
Calmco: Calmco Servicing L.P., a Delaware limited partnership, and
its successors and assigns.
Calmco Serviced Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Certificate: Any Class A, Class B, Class X, Class P or Class AR
Certificate executed and authenticated by the Trustee for the benefit of the
Certificateholders in substantially the form or forms attached as Exhibits
hereto.
Certificate Account: The separate 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 Fees and other
amounts permitted to be withdrawn pursuant to Section 3.08(b)(ii)) shall be
held in trust for the Certificateholders.
Certificate Group: Any of Certificate Group I, Certificate Group II
or Certificate Group III, as applicable.
Certificate Group I: Any of the Certificates with a Class
designation beginning with "I" and relating to Loan Group I.
Certificate Group II: Any of the Certificates with a Class
designation beginning with "II" and relating to Loan Group II.
Certificate Group III: Any of the Certificates with a Class
designation beginning with "III" and relating to Loan Group III.
Certificate Insurer: MBIA, as issuer of the Class III-A-1 Policy.
Certificate Principal Balance: For any Senior Certificate (other
than the interest only Certificates) and Subordinate Certificate, as of any
date of determination, the initial Certificate Principal Balance stated on its
face as reduced for all distributions of principal and allocations of Realized
Losses on the Distribution Dates before that date of determination; in the
case of any Subordinate Certificate, any amounts allocated to that Certificate
in reduction of its Certificate Principal Balance for payment of Class P
Deferred Amounts or if the aggregate Certificate Principal Balance of the
Certificates exceeds the aggregate Stated Principal Balance of the Mortgage
Loans, as described in Section 4.02 of this Agreement; and, with respect to a
Class I-A-11 Certificate and Class II-A-3 Certificate, increased by the Class
I-A-11 Accrual Amount or the Class II-A-3 Accrual Amount, as applicable added
to that Certificate on each Distribution Date prior to such date.
Certificate Register: The register maintained pursuant to Section
6.02(a) hereof.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, and, with respect to the Class
III-A-1 Certificates, MBIA to the extent of any amount paid under the Class
III-A-1 Policy.
Class: Each class of the Class A, Class B, Class X, Class P or Class
AR Certificates, as appropriate.
Class A Certificates: As specified in the Preliminary Statement.
Class B Certificates: As specified in the Preliminary Statement.
Class I-A-4 Adjusted Percentage: For any Distribution Date occurring
(i) before April 2006, 0% and (ii) in or after April 2006, the Class I-A-4
Percentage for that Distribution Date.
Class I-A-4 Liquidation Amount: For any Distribution Date, the
aggregate, for each Group I Mortgage Loan that became a Liquidated Mortgage
Loan during the calendar month preceding the month of that Distribution Date,
of the lesser of (i) the Class I-A-4 Adjusted Percentage of the Stated
Principal Balance of that Mortgage Loan and (ii) the Class I-A-4 Adjusted
Percentage of the Liquidation Principal for that Mortgage Loan.
Class I-A-4 Percentage: For any Distribution Date will equal the
lesser of (a) 100% and (b) the Class Principal Balance of the Class I-A-4
Certificates divided by the aggregate Stated Principal Balance of the Group I
Mortgage Loans, in each case immediately prior to any allocations of losses or
distributions on that Distribution Date.
Class I-A-4 Prepayment Percentage: For any Distribution Date, the
product of (a) the Class I-A-4 Percentage and (b) the Stepdown Percentage.
Class I-A-4 Priority Amount: For any Distribution Date, the sum of
(i) the Class I-A-4 Adjusted Percentage of the Principal Payment Amount, (ii)
the Class I-A-4 Prepayment Percentage of the Principal Prepayment Amount and
(iii) the Class I-A-4 Liquidation Amount.
Class I-A-9 Notional Amount: For any Distribution Date, the Class
Principal Balance of the Class I-A-10 Certificates immediately before that
Distribution Date.
Class I-A-11 Accretion Termination Date: The earlier to occur of (i)
the Distribution Date on which the Class Principal Balance of the Class I-A-10
Certificates has been reduced to zero and (ii) the Credit Support Depletion
Date.
Class I-A-11 Accrual Amount: On each Distribution Date on or before
the Class I-A-11 Accretion Termination Date, an amount equal to the accrued
interest that would otherwise be distributable in respect of the Class I-A-11
Certificates on that Distribution Date. On any Distribution Date which is also
the Class I-A-11 Accretion Termination Date, any Class I-A-11 Accrual Amount
not required to reduce the Class I-A-10 Certificates to zero will be payable,
as interest, to the holders of the Class I-A-11 Certificates; provided,
however, that if the Class I-A-11 Accretion Termination Date is also the
Credit Support Depletion Date, the entire Class I-A-11 Accrual Amount for that
date will be payable as interest to the holders of the Class I-A-11
Certificates.
Class I-X-1 Notional Amount: For any Distribution Date and the Class
I-X-1 Certificates, the product of (x) the aggregate Stated Principal Balance,
as of the second preceding Due Date after giving effect to Scheduled Payments
for that due date, whether or not received, or for the initial Distribution
Date, as of the Cut-off Date, of the Premium Rate Mortgage Loans with respect
to Loan Group I that do not have Prepayment Penalties; and (y) a fraction, the
numerator of which is the weighted average of the Stripped Interest Rates for
the Premium Rate Mortgage Loans in Loan Group I that do not have Prepayment
Penalties as of that Due Date and the denominator of which is 7.25%.
Class I-X-2 Notional Amount: For any Distribution Date and the Class
I-X-2 Certificates, the product of (x) the aggregate Stated Principal Balance,
as of the second preceding Due Date after giving effect to Scheduled Payments
for that Due Date, whether or not received, or for the initial Distribution
Date, as of the Cut-off Date, of the Premium Rate Mortgage Loans with respect
to Group I that have Prepayment Penalties; and (y) a fraction, the numerator
of which is the weighted average of the Stripped Interest Rates for the
Premium Rate Mortgage Loans in Loan Group I that have Prepayment Penalties as
of that Due Date and the denominator of which is 7.25%.
Class II-A-2 Notional Amount: For any Distribution Date, the Class
Principal Balance of the Class II-A-1 Certificates immediately before that
Distribution Date.
Class II-A-3 Accretion Termination Date: The earlier to occur of (i)
the Distribution Date on which the Class Principal Balance of the Class II-A-1
Certificates has been reduced to zero and (ii) the Credit Support Depletion
Date.
Class II-A-3 Accrual Amount: On each Distribution Date on or before
the Class II-A-3 Accretion Termination Date, an amount equal to the accrued
interest that would otherwise be distributable in respect of the Class II-A-3
Certificates on that Distribution Date. On any Distribution Date which is also
the Class II-A-3 Accretion Termination Date, any Class II-A-3 Accrual Amount
not required to reduce the Class II-A-1 Certificates to zero will be payable,
as interest, to the holders of the Class II-A-3 Certificates; provided,
however, that if the Class II-A-3 Accretion Termination Date is also the
Credit Support Depletion Date, the entire Class II-A-3 Accrual Amount for that
date will be payable as interest to the holders of the Class II-A-3
Certificates.
Class II-P Fraction: With respect to each Class II-P Mortgage Loan,
a fraction, the numerator of which is 8.25% minus the Net Mortgage Rate on
that Class II-P Mortgage Loan and the denominator of which is 8.25%.
Class II-P Mortgage Loans: The Group II Mortgage Loans having Net
Mortgage Rates less than 8.25% per annum.
Class II-P Principal Distribution Amount: For each Distribution
Date, an amount equal to the Class II-P Fraction of the sum of (i) scheduled
principal due (whether or not received) on the related Due Date and (ii)
unscheduled collections of principal received (including Net Liquidation
Proceeds allocable to principal) and constituting a part of the Available
Distribution Amount for Loan Group II for that Distribution Date, in each
case, on or in respect of a Class II-P Mortgage Loan for that Distribution
Date.
Class II-X Notional Amount: For any Distribution Date and the Class
II-X Certificates, the product of (x) the aggregate Stated Principal Balance,
as of the second preceding Due Date after giving effect to Scheduled Payments
for that due date, whether or not received, or with respect to the initial
Distribution Date, as of the Cut-off Date, of the Premium Rate Mortgage Loans
in Loan Group II that do not have Prepayment Penalties and (y) a fraction, the
numerator of which is the weighted average of the Stripped Interest Rates for
the Premium Rate Mortgage Loans in Loan Group II that do not have Prepayment
Penalties as of that Due Date and the denominator of which is 8.25%.
Class III-A-1 Policy: The irrevocable Certificate Guaranty Insurance
Policy, No.34816, including any endorsements thereto, issued by MBIA with
respect to the Class III-A-1 Certificates, in the form attached hereto as
Exhibit Q.
Class III-A-1 Policy Payments Account: As defined in Section
4.03(c).
Class III-A-2 Adjusted Percentage: For any Distribution Date
occurring (i) before April 2006, 0% and (ii) after April 2006, the Class
III-A-2 Percentage for that Distribution Date.
Class III-A-2 Liquidation Amount: For any Distribution Date, the
aggregate, for each Group III Mortgage Loan that became a Liquidated Mortgage
Loan during the calendar month preceding the month of that Distribution date,
of the lesser of (i) the Class III-A-2 Adjusted Percentage of the Stated
Principal Balance of that mortgage loan (exclusive of the Class III-P Fraction
of that balance, for any Class III-P Mortgage Loan) and (ii) the Class III-A-2
Adjusted Percentage of the Liquidation Principal for that Mortgage Loan.
Class III-A-2 Percentage: For any distribution date, will equal the
lesser of (a) 100% and (b) the Class Principal Balance of the Class III-A-2
Certificates divided by the aggregate Stated Principal Balance of the Group
III Mortgage Loans (less the Class Principal Balance of the Class III-P
Certificates), in each case immediately prior to any allocations of losses or
distributions on that Distribution Date.
Class III-A-2 Prepayment Percentage: For any Distribution Date, the
product of (a) the Class III-A-2 Percentage and (b) the StepDown Percentage.
Class III-A-2 Priority Amount: For any Distribution Date, the sum of
(i) the Class III-A-2 Adjusted Percentage of the Principal Payment Amount
(exclusive of the portion attributable to the Class III-P Principal
Distribution Amount), (ii) the Class III-A-2 Prepayment Percentage of the
Principal Prepayment Amount (exclusive of the portion attributable to the
Class III-P Principal Distribution Amount) and (iii) the Class III-A-2
Liquidation Amount.
Class III-P Fraction: With respect to each Class III-P Mortgage
Loan, a fraction, the numerator of which is 7.54% minus the Net Mortgage Rate
on that Class III-P Mortgage Loan and the denominator of which is 7.54%.
Class III-P Mortgage Loans: The Group III Mortgage Loans having Net
Mortgage Rates less than 7.54% per annum.
Class III-P Principal Distribution Amount: For each Distribution
Date, an amount equal to the Class III-P Fraction of the sum of (i) scheduled
principal due (whether or not received) on the related Due Date and (ii)
unscheduled collections of principal received (including Net Liquidation
Proceeds allocable to principal) and constituting a part of the Available
Distribution Amount for Loan Group III for that Distribution Date, in each
case, on or in respect of a Class III-P Mortgage Loan for that Distribution
Date.
Class III-X Notional Amount: For any Distribution Date and the Class
III-X Certificates, the product of (x) the aggregate Stated Principal Balance,
as of the second preceding Due Date after giving effect to Scheduled Payments
for that due date, whether or not received, or for the Initial Distribution
Date, as of the Cut-off Date, of the Premium Rate Mortgage Loans in Group III
that do not have Prepayment Penalties; and (y) a fraction, the numerator of
which is the weighted average of the Stripped Interest Rates for the Premium
Rate Mortgage Loans in Loan Group III that do not have Prepayment Penalties;
as of that Due Date and the denominator of which is 7.54%.
Class Interest Shortfall: As to any Distribution Date and Class of
Group I Certificates, Group II Certificates and Group III Certificates, the
amount by which one month's interest accrued during the related Accrual Period
at the applicable Pass-Through Rate for such Class on the related Class
Principal Balance or Class Notional Amount, as applicable, exceeds the amount
of interest actually distributed to such Class on such Distribution Date.
Class Notional Amount: Any of the Class I-A-9 Notional Amount, Class
II-A-2 Notional Amount, Class I-X-1 Notional Amount, Class I-X-2 Notional
Amount, Class II-X Notional Amount or Class III-X Notional Amount, as
applicable.
Class P Certificates: As specified in the Preliminary Statement.
Class P Deferred Amounts: As of any date of determination, the
amount required to be paid to the holders of the Class P Certificates pursuant
to clause (A)(d)(i) of Section 4.01.
Class P Fraction: Either of the Class II-P Fraction or Class III-P
Fraction, as applicable.
Class P Mortgage Loan: Either of the Class II-P Mortgage Loans or
Class III-P Mortgage Loans, as applicable.
Class Principal Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Principal Balances of
all Certificates of such Class as of such date.
Class P Principal Distribution Amount: Either of the Class II-P
Principal Distribution Amount or the Class III-P Principal Distribution
Amount, as applicable.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest-bearing Group I Certificates, Group II Certificates and Group III
Certificates, the amount by which the aggregate Class Interest Shortfalls for
such Class on prior Distribution Dates exceeds the amount distributed on such
Class on prior Distribution Dates.
Class X Certificates: As specified in the Preliminary Statement.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
which initially shall be DTC.
Closing Date: March 30, 2001.
Code: The Internal Revenue Code of 1986, as amended.
Collection Account: The accounts established and maintained by a
Servicer in accordance with Section 3.05.
Collection Period: With respect to each Distribution Date, the
period commencing on the second day of the month preceding the month of the
Distribution Date and ending on the first day of the month of the Distribution
Date.
Compensating Interest: For any Distribution Date and the WMMSC
Serviced Loans, the lesser of (i) the sum of (a) one twelfth (1/12) of 0.04%
of the aggregate Stated Principal Balance of the WMMSC Serviced Loans as of
the Due Date in the month of such Distribution Date, (b) Payoff Earnings in
respect of the WMMSC Serviced Loans for such Distribution Date and (c)
aggregate Payoff Interest in respect of the WMMSC Serviced Loans for such
Distribution Date and (ii) the aggregate Prepayment Interest Shortfall
allocable to Payoffs for the WMMSC Serviced Loans.
For any Distribution Date and the GreenPoint Serviced Loans, the
lesser of (i) 50% of the aggregate Servicing Fee payable to GreenPoint in
respect of the GreenPoint Serviced Loans for such Distribution Date and (ii)
the aggregate Prepayment Interest Shortfall with respect to the GreenPoint
Serviced Loans.
For any Distribution Date and the MLS Serviced Loans, the lesser of
(i) the aggregate Servicing Fee payable to MLS in respect of the MLS Serviced
Loans for such Distribution Date and (ii) the aggregate Prepayment Interest
Shortfall with respect to the MLS Serviced Loans.
For any Distribution Date and the Calmco Serviced Loans, the lesser
of (i) the sum of (a) one twelfth (1/12) of 0.04% of the aggregate Stated
Principal Balance of the Calmco Serviced Loans as of the Due Date in the month
of such Distribution Date, (b) Payoff Earnings in respect of the Calmco
Serviced Loans for such Distribution Date and (c) aggregate Payoff Interest in
respect of the Calmco Serviced Loans for such Distribution Date and (ii) the
aggregate Prepayment Interest Shortfall allocable to Payoffs for the Calmco
Serviced Loans.
Corporate Trust Office: The designated office of the Trustee at
which at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Global Corporate Trust Services, except for
purposes of Section 6.06, such term shall mean the office or agency of the
Trustee in the Borough of Manhattan, the City of New York, which office at the
date hereof is located at 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
Corresponding Classes of Certificates: With respect to each
Subsidiary REMIC Regular Interest, any Class of Certificates appearing
opposite such Subsidiary REMIC Regular Interest in the Preliminary Statement.
Credit Support Depletion Date: The first Distribution Date on which
the aggregate Class Principal Balances of the Subordinate Certificates has
been or will be reduced to zero.
Curtailment: Any payment of principal on a Mortgage Loan, made by or
on behalf of the related Mortgagor, other than a Scheduled Payment, a prepaid
Scheduled Payment or a Payoff, which is applied to reduce the outstanding
Stated Principal Balance of the Mortgage Loan.
Custodial Agreement: An agreement, dated as of the date hereof,
among a custodian, the Trustee and the Depositor pursuant to which the Trustee
appoints such custodian to hold any of the documents or instruments referred
to in Section 2.01 of this Agreement as agent for the Trustee.
Custodian: A custodian which is appointed pursuant to a Custodial
Agreement. Any Custodian so appointed shall act as agent on behalf of the
Trustee, and shall be compensated by the Trustee. 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: March 1, 2001.
Cut-off Date Pool Principal Balance: $380,825,741.04.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction in its scheduled monthly payment by a court of competent
jurisdiction in a proceeding under the United States Bankruptcy Code, except a
reduction constituting a Deficient Valuation or any reduction that results in
a permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction in a proceeding under the United States
Bankruptcy Code in an amount less than the then outstanding indebtedness under
the Mortgage Loan, or that results in a permanent forgiveness of principal.
Definitive Certificate: As defined in Section 6.07.
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Rate: For any month will be, generally, the 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
Loan Group 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 Principal Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if
neither of the foregoing, the Percentage Interest appearing on the face
thereof.
Depositor: Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
Depository Agreement: The Letter of Representation dated as of March
30, 2001 by and among DTC, the Depositor and the Trustee.
Determination Date: With respect to each Distribution Date, the 10th
day of the calendar month in which such Distribution Date occurs or, if such
10th day is not a Business Day, the Business Day immediately succeeding such
Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class AR Certificate by such Person may cause the
REMIC or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class AR Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
Distribution Date: The 25th day of any month, or if such 25th day is
not a Business Day, the Business Day immediately following such 25th day,
commencing in April 2001.
DLJ Loans: The Mortgage Loans identified as such on the Mortgage
Loan Schedule for which DLJMC is the applicable Seller.
DLJMC: DLJ Mortgage Capital, Inc., a Delaware corporation, and its
successors and assigns.
DTC: The Depository Trust Company.
Due Date: With respect to each Mortgage Loan and any Distribution
Date, the date on which Scheduled Payments on such Mortgage Loan are due which
is either the first day of the month of such Distribution Date, or if
Scheduled Payments on such Mortgage Loan are due on a day other than the first
day of the month, the date in the calendar month immediately preceding the
Distribution Date on which such Scheduled Payments are due, exclusive of any
days of grace.
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:
1. direct obligations of, and obligations fully guaranteed by, the
United States of America, or any agency or instrumentality of the
United States of America the obligations of which are backed by the
full faith and credit of the United States of America; or
obligations fully guaranteed by, the United States of America; the
FHLMC, FNMA, the Federal Home Loan Banks or any agency or
instrumentality of the United States of America rated AA or higher
by the Rating Agencies;
2. federal funds, demand and time deposits in, certificates of deposits
of, or bankers' acceptances issued by, any depository institution or
trust company incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision
and examination by federal and/or state banking authorities, so long
as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt obligations of such
holding company) are rated in one of two of the highest ratings by
each of the Rating Agencies, and the long-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the long-term debt obligations of
such holding company) are rated in one of two of the highest
ratings, by each of the Rating Agencies;
3. repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered
into with a depository institution or trust company (acting as a
principal) rated A or higher by the Rating Agencies; provided,
however, that collateral transferred pursuant to such repurchase
obligation must be of the type described in clause (i) above and
must (A) be valued daily at current market price plus accrued
interest, (B) pursuant to such valuation, be equal, at all times, to
105% of the cash transferred by the Trustee in exchange for such
collateral, and (C) be delivered to the Trustee or, if the Trustee
is supplying the collateral, an agent for the Trustee, in such a
manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
4. securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of
America or any state thereof which has a long-term unsecured debt
rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
5. commercial paper having an original maturity of less than 365 days
and issued by an institution having a short-term unsecured debt
rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
6. a guaranteed investment contract approved by each of the Rating
Agencies and issued by an insurance company or other corporation
having a long-term unsecured debt rating in the highest available
rating category of each of the Rating Agencies at the time of such
investment;
7. money market funds (which may be 12b-1 funds as contemplated under
the rules promulgated by the Securities and Exchange Commission
under the Investment Company Act of 1940) having ratings in the
highest available rating category of Moody's and one of the two
highest available rating categories of S&P at the time of such
investment (any such money market funds which provide for demand
withdrawals being conclusively deemed to satisfy any maturity
requirements for Eligible Investments set forth herein) including
money market funds of a Servicer or the Trustee and any such funds
that are managed by a Servicer or the Trustee or their respective
Affiliates or for a Servicer or the Trustee or any Affiliate of
either acts as advisor, as long as such money market funds satisfy
the criteria of this subparagraph (vii); and
8. such other investments the investment in which will not, as
evidenced by a letter from each of the Rating Agencies, result in
the downgrading or withdrawal of the Ratings of the Certificates.
provided, however, that no such instrument shall be an Eligible
Investment if such instrument evidences either (i) a right to receive only
interest payments with respect to the obligations underlying such instrument,
or (ii) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with
respect to such instrument provide a yield to maturity of greater than 120% of
the yield to maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The separate account or accounts created and
maintained by a Servicer pursuant to Section 3.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, mortgage insurance premiums, fire and hazard
insurance premiums, and any other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to the Mortgage, applicable law or any
other related document.
Event of Default: As defined in Section 8.01 hereof.
Excess Losses: Special Hazard Losses in excess of the Special Hazard
Loss Coverage Amount; Bankruptcy Losses in excess of the Bankruptcy Loss
Coverage Amount and Fraud Losses in excess of the Fraud Loss Coverage Amount.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Servicing Fee Rate, Trustee Fee Rate and the GEMICO PMI Fee Rate, as
applicable.
Expense Fees: As to each Mortgage Loan, the sum of the related
Servicing Fee, the Trustee Fee and the GEMICO PMI Fee, as applicable.
Extraordinary Event: Any of the following conditions with respect to
a Mortgaged Property or Mortgage Loan causing or resulting in a loss which
causes the liquidation of such Mortgage Loan: (a) nuclear reaction or nuclear
radiation or radioactive contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate or remote
or be in whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss"; (b) hostile or
warlike action in time of peace or war, including action in hindering,
combating or defending against an actual, impending or expected attack: (i) by
any government or sovereign power, de jure or de facto, or by any authority
maintaining or using military, naval or air forces; or (ii) by military, naval
or air forces; or (iii) by an agent of any such government, power, authority
or forces; (c) any weapon of war employing atomic fission or radioactive force
whether in time of peace or war; or (d) insurrection, rebellion, revolution,
civil war, usurped power or action taken by governmental authority in
hindering, combating or defending against such an occurrence, seizure or
destruction under quarantine or customs regulations, confiscation by order of
any government or public authority; or risks of contraband or illegal
transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by
or resulting from an Extraordinary Event.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fiscal Agent: As defined in the Class III-A-1 Policy.
Fitch: Fitch, Inc., or any successor thereto.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $3,808,257,
subject in each case to reduction from time to time by the amount of Fraud
Losses allocated to the Certificates. On each anniversary of the Cut-off Date,
the Fraud Loss Coverage Amount will be reduced as follows: (a) prior to the
fifth anniversary of the Cut-off Date, the Fraud Loss Coverage Amount will be
reduced to an amount equal to the lesser of (i) 1% of the aggregate Stated
Principal Balance of the Mortgage Loans and (ii) the excess of the Fraud Loss
Coverage Amount as of the preceding anniversary of the Cut-off Date (or, in
the case of the first such anniversary, as of the Cut-off Date) over the
cumulative amount of Fraud Losses on the Mortgage Loans allocated to the
Certificates since such preceding anniversary or the Cut-off Date, as the case
may be, and (b) on the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
applicable Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Mortgage Loans as to which a
loss is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Mortgage
Insurance Policy because of such fraud, dishonesty or misrepresentation.
GEMICO PMI Fee: As to each GEMICO PMI Mortgage Loan and any
Distribution Date, an amount equal to one month's interest at the GEMICO PMI
Fee Rate on the Stated Principal Balance of such GEMICO PMI Mortgage Loan as
of the Due Date in the month of such Distribution Date (prior to giving effect
to any Scheduled Payment due on such GEMICO PMI Mortgage Loan on such Due
Date).
GEMICO PMI Fee Rate: With respect to each GEMICO PMI Mortgage Loan,
the per annum rate equal to 0.25%.
GEMICO PMI Mortgage Loan: Those Mortgage Loans identified on the
Mortgage Loan Schedule as to which the GEMICO PMI Policy provides coverage.
GEMICO PMI Policy: The mortgage guaranty insurance policy issued by
General Electric Mortgage Insurance Corporation, attached hereto as Exhibit P.
GreenPoint: GreenPoint Mortgage Funding, Inc., and its successors
and assigns.
GreenPoint Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which GreenPoint is the applicable Seller.
GreenPoint Mortgage Loan Purchase Agreement: That certain mortgage
loan purchase agreement dated as of March 1, 2001, between DLJMC, as
purchaser, and GreenPoint, as seller, of the GreenPoint Loans.
GreenPoint Serviced Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which GreenPoint is the applicable Servicer.
Group: When used with respect to the Mortgage Loans, any of Loan
Group I, Loan Group II or Loan Group III or with respect to the Certificates,
the Group I Certificates, the Group II Certificates or the Group III
Certificates.
Group I Certificates: The Class I-A-1, Class I-A-2, Class I-A-3,
Class I-A-4, Class I-A-5, Class I-A-6, Class I-A-7, Class I-A-8, Class I-A-9,
Class I-A-10, Class I-A-11, Class I-A-12, Class I-X-1, Class I-X-2 and Class
AR Certificates.
Group I Senior Liquidation Amount: For any Distribution Date, the
aggregate, for each Group I Mortgage Loan that became a Liquidated Mortgage
Loan during the calendar month preceding the month of such Distribution Date,
of the lesser of (i) the Group I Senior Percentage of the Stated Principal
Balance of that Mortgage Loan and (ii) the related Senior Prepayment
Percentage of the Liquidation Principal with respect to that Mortgage Loan.
Group I Senior Percentage: For any Distribution Date, a fraction,
expressed as a percentage, whose numerator is the Class Principal Balance of
the Group I Certificates and whose denominator is the aggregate Stated
Principal Balance of the Group I Mortgage Loans, determined, in each case,
immediately prior to any allocations of losses or distributions on that
Distribution Date; provided, however, that in no event will the Group I Senior
Percentage exceed 100%.
Group I Senior Principal Distribution Amount: As to any Distribution
Date, the sum of (i) the Group I Senior Percentage of the Principal Payment
Amount for Loan Group I, (ii) the related Senior Prepayment Percentage of the
Principal Prepayment Amount for Loan Group I, and (iii) the Group I Senior
Liquidation Amount.
Group I Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group I Senior Percentage.
Group II Certificates: The Class II-A-1, Class II-A-2, Class II-A-3,
Class II-A-4, Class II-P and Class II-X Certificates.
Group II Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group II which became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group II Senior Percentage of the Stated Principal Balance of such Mortgage
Loan (exclusive of the Class II-P Fraction of that balance, with respect to
any Class II-P Mortgage Loan) and (ii) the Senior Prepayment Percentage of the
Liquidation Principal with respect to such Mortgage Loan.
Group II Senior Percentage: For any Distribution Date, a fraction,
expressed as a percentage, whose numerator is the Class Principal Balance of
the Group II Certificates (other than the Class II-P Certificates) and whose
denominator is the aggregate Stated Principal Balance of the Group II Mortgage
Loans less the Class II-P Fraction of the Class II-P Mortgage Loans,
determined, in each case, immediately prior to any allocations of losses or
distributions on that distribution date; provided, however, that in no event
will the Group II Senior Percentage exceed 100%.
Group II Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group II Senior Percentage of the
Principal Payment Amount for Loan Group II (exclusive of the portion
attributable to the Class II-P Principal Distribution Amount), (ii) the
related Senior Prepayment Percentage of the Principal Prepayment Amount for
Loan Group II (exclusive of the portion attributable to the Class II-P
Principal Distribution Amount), and (iii) the Group II Senior Liquidation
Amount.
Group II Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group II Senior Percentage.
Group III Certificates: The Class III-A-1, Class III-A-2, Class
III-P and Class III-X Certificates.
Group III Senior Liquidation Amount: For any Distribution Date, the
aggregate, for each Mortgage Loan in Loan Group III that became a Liquidated
Mortgage Loan during the related Prepayment Period, of the lesser of (i) the
Group III Senior Percentage of the Stated Principal Balance of that Mortgage
Loan (exclusive of the Class III-P Fraction of that balance, with respect to
any Class III-P Mortgage Loan) and (ii) the related Senior Prepayment
Percentage of the Liquidation Principal with respect to that Mortgage Loan.
Group III Senior Percentage: For any Distribution Date, a fraction,
expressed as a percentage, whose numerator is the aggregate Class Principal
Balance of the Group III Certificates (other than the Class III-P
Certificates) and whose denominator is the aggregate Stated Principal Balance
of the Group III Mortgage Loans less the Class III-P Fraction of the Class
III-P Mortgage Loans, determined, in each case, immediately prior to any
allocations of losses or distributions on that Distribution Date; provided,
however, that in no event will the Group III Senior Percentage exceed 100%.
Group III Senior Principal Distribution Amount: As to any
Distribution Date, the sum of (i) the Group III Senior Percentage of the
Principal Payment Amount for Loan Group III (exclusive of the portion
attributable to the Class III-P Principal Distribution Amount), (ii) the
related Senior Prepayment Percentage of the Principal Prepayment Amount for
Loan Group III (exclusive of the portion attributable to the Class III-P
Principal Distribution Amount), and (iii) the Group III Senior Liquidation
Amount.
Group III Subordinate Percentage: For any Distribution Date, the
excess of 100% over the Group III Senior Percentage.
Indirect Participants: Entities, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly.
Initial Bankruptcy Loss Coverage Amount: $161,970.23.
Initial Class Principal Balance: As set forth in the Preliminary
Statement.
Insolvency Proceeding: As defined in Section 4.03(h).
Insurance Agreement: That certain insurance agreement, dated as of
the Cut-off Date, among MBIA, the Depositor, DLJMC and the Trustee.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any Primary Insurance Policy, the GEMICO PMI Policy, any standard
hazard insurance policy, flood insurance policy or title insurance policy,
including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds of any primary mortgage guaranty
insurance policies, including, without limitation, the GEMICO Policy, and any
other Insurance Policies with respect to the Mortgage Loans, to the extent
such proceeds are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with a Servicer's normal
servicing procedures.
Insured Payment: As defined in the Class III-A-1 Policy.
Interest Determination Date: With respect to the LIBOR Certificates
and for each Accrual Period, the second LIBOR Business Day preceding the
commencement of such Accrual Period.
Interest Distribution Amount: With respect to any Distribution Date
and interest-bearing Class of Group I Certificates, Group II Certificates and
Group III Certificates, the sum of (i) one month's interest accrued during the
related Accrual Period at the applicable Pass-Through Rate for such Class on
the related Class Principal Balance or Class Notional Amount, as applicable,
subject to reduction pursuant to Section 4.01(B), and (ii) any Class Unpaid
Interest Amounts for such Class and Distribution Date.
Interest Rate: With respect to each Subsidiary REMIC Interest, the
applicable rate set forth or calculated in the manner described in the
Preliminary Statement.
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 determined without regard to the
Class III-A-1 Policy) maintained by WMMSC in the trust department of the
Investment Depository pursuant to Section 3.05.
Investment Depository: The Chase Manhattan Bank, New York, New York
or another bank or trust company designated from time to time by WMMSC. The
Investment Depository shall at all times be an Eligible Institution.
Late Payment Rate: as defined in the Insurance Agreement.
LIBOR: With respect to each Distribution Date, the interbank offered
rate for one-month United States dollar deposits in the London market as
quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the second
LIBOR Business Day prior to the first day of the related Accrual Period.
Telerate Page 3750 means the display designated as page 3750 on the Bridge
Telerate, or any other page as may replace page 3750 on that service for the
purpose of displaying London interbank offered rates of major banks. If the
rate does not appear on the page, or any other page as may replace that page
on that service, or if the service is no longer offered, or any other service
for displaying LIBOR or comparable rates as may be selected by the Trustee
after consultation with DLJMC, the rate will be the reference bank rate. The
reference bank rate will be determined on the basis of the rates at which
deposits in U.S. Dollars are offered by the reference banks, which shall be
three major banks that are engaged in transactions in the London interbank
market, selected by the trustee after consultation with DLJMC, as of 11:00
a.m., London time, on the day that is two LIBOR Business Days prior to the
immediately preceding Distribution Date to prime banks in the London interbank
market for a period of one month in amounts approximately equal to the
aggregate Class Principal Balances and Class Notional Amounts of the Class
I-A-9, Class I-A-10, Class II-A-1 and Class II-A-2 Certificates. The trustee
will request the principal London office of each of the reference banks to
provide a quotation of its rate. If at least two quotations are provided, the
rate will be the arithmetic mean of the quotations. If on the related date
fewer than two quotations are provided as requested, the rate will be the
arithmetic mean of the rates quoted by one or more major banks in New York
City, selected by the trustee after consultation with DLJMC, as of 11:00 a.m.,
New York City time, on such date for loans in U.S. Dollars to leading European
banks for a period of one month in amounts approximately equal to the
aggregate Class Principal Balances and Class Notional Amounts of the Class
I-A-9, Class I-A-10, Class II-A-1 and Class II-A-2 Certificates. If no
quotations can be obtained, the rate will be LIBOR for the prior 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.
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which a Servicer has determined (in accordance with this Agreement) that it
has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of the
related REO Property.
Liquidation Principal: As to any Distribution Date and a Loan Group,
the principal portion of Net Liquidation Proceeds received with respect to
each Mortgage Loan in that Loan Group which became a Liquidated Mortgage Loan
(but not in excess of the principal balance thereof) during the preceding
calendar month.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property related to a Mortgage Loan and any other proceeds
received in connection with an REO Property.
Loan Group: Either Loan Group I, Loan Group II, or Loan Group III,
as applicable.
Loan Group I: The pool of adjustable rate Mortgage Loans identified
in the related Mortgage Loan Schedule as having been assigned to Group I.
Loan Group II: The pool of adjustable rate Mortgage Loans identified
in the related Mortgage Loan Schedule as having been assigned to Group II.
Loan Group III: The pool of adjustable rate Mortgage Loans
identified in the related Mortgage Loan Schedule as having been assigned to
Group III.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the Appraised Value of the Mortgaged Property or, in the case of a
Qualified Substitute Mortgage Loan, is the appraised value of the Mortgaged
Property based upon an appraisal made within 180 days prior to the date of
substitution of such Qualified Substitute Mortgage Loan for a Deleted Mortgage
Loan.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Master REMIC: As described in the Preliminary Statement.
MBIA: MBIA Insurance Corporation, a subsidiary of MBIA Inc.,
organized and created under the laws of the State of New York, or any
successor thereto.
MBIA Contact Persons: Collectively, the officers designated by the
Servicer to provide information to MBIA pursuant to Section 4.03(i).
MBIA Default: As defined in Section 4.03(l).
MBIA Premium: With respect to any Distribution Date, an amount equal
to 1/12th of the product of (a) the Class Principal Balance of the Class
III-A-1 Certificates as of such Distribution Date (prior to giving effect to
any distributions thereon on such Distribution Date) and (b) the Premium
Percentage.
MBIA Reimbursement Amount: The sum of (i) all amounts paid by MBIA
under the Class III-A-1 Policy which have not been previously reimbursed, (ii)
all unpaid MBIA Premiums, (iii) all amounts due to MBIA under the Insurance
Agreement and (iv) interest on the foregoing at the Late Payment Rate.
MLS: Midwest Loan Services, Inc., and is successors and assigns.
MLS Serviced Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which MLS is the applicable Servicer.
Moody's: Xxxxx'x Investors Service, Inc. or any successor thereto.
Mortgage: With respect to a Mortgage Loan, the mortgage, deed of
trust or other instrument creating a first lien on a fee simple or leasehold
estate in real property securing a Mortgage Note.
Mortgage File: For each Mortgage Loan, the Trustee Mortgage File and
the Servicer Mortgage File.
Mortgage 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 list of Mortgage Loans (as from time to
time amended by the applicable Seller to reflect the addition of Qualified
Substitute Mortgage Loans and the purchase of Mortgage Loans pursuant to
Section 2.02 or 2.03) transferred to the Trustee as part of the Trust Fund and
from time to time subject to this Agreement, attached hereto as Schedule I,
setting forth the following information with respect to each Mortgage Loan and
applicable Servicer by Loan Group:
1. the Mortgage Loan identifying number;
2. the Mortgagor's name;
3. the street address of the Mortgaged Property including the state and
zip code;
4. a code indicating the type of Mortgaged Property and the occupancy
status.
5. the original months to maturity or the remaining months to maturity
from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule;
6. the Loan-to-Value Ratio at origination;
7. the Mortgage Rate as of the Cut-off Date;
8. the stated maturity date;
9. the amount of the Scheduled Payment as of the Cut-off Date;
10. the original principal amount of the Mortgage Loan;
11. the principal balance of the Mortgage Loan as of the close of
business on the Cut-off Date, after deduction of payments of
principal due on or before the Cut-off Date whether or not
collected;
12. a code indicating the purpose of the Mortgage Loan (i.e., purchase,
rate and term refinance, equity take-out refinance);
13. whether such Mortgage Loan has a Prepayment Penalty;
14. whether such Mortgage Loan is a GEMICO PMI Mortgage Loan;
15. the Expense Fee Rate as of the Cut-off Date;
16. the Servicing Fee Rate (which may be disclosed on the Mortgage Loan
Schedule in two parts identified as the servicing fee and master
servicing fee);
17. whether such Mortgage Loan is a DLJ Loan, a WMMSC Loan or a
GreenPoint Loan; and
18. whether such Mortgage Loan is a WMMSC Serviced Mortgage Loan, a
GreenPoint Serviced Loan, a MLS Serviced Loan or a Calmco Serviced
Loan;
With respect to the Mortgage Loans in the aggregate, each Mortgage Loan
Schedule shall set forth the following information, as of the Cut-off
Date:
(i) the number of Mortgage Loans;
(ii) the current aggregate principal balance of the Mortgage Loans
as of the close of business on the Cut-off Date, after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; and
(iii) the weighted average Mortgage Rate of the Mortgage Loans.
Notwithstanding the foregoing, the definition of Mortgage Loan Schedule
shall not include items 4, 6, 10, 12, 13, 14 or 15 above or the
weighted average Mortgage Rate of the Mortgage Loans shall not apply to
WMMSC or the WMMSC Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note.
Mortgaged Property: The underlying real property securing a Mortgage
Loan.
Mortgagor: The obligor on a Mortgage Note.
MR Interest: The sole class of "residual interest" in the Master
REMIC.
Net Interest Shortfall: For any Distribution Date and Group, the sum
of (a) the amount of interest which would otherwise have been received for a
Mortgage Loan in that Group that was the subject of (x) a Relief Act
Reduction, (y) a Special Hazard Loss, Fraud Loss or Bankruptcy Loss, after the
exhaustion of the Bankruptcy Loss Coverage Amount, Fraud Loss Coverage Amount
and Special Hazard Loss Coverage Amount, as applicable or (z) an Extraordinary
Loss; and (b) any related Net Prepayment Interest Shortfalls.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan, the related Liquidation Proceeds; net of (1) unreimbursed reasonable
out-of-pocket expenses and (2) unreimbursed Expense Fees, Servicing Advances
and Advances.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate for such Mortgage Loan less the
related Expense Fee Rate.
Net Prepayment Interest Shortfalls: As to any Distribution Date and
Loan Group, the amount by which the aggregate of Prepayment Interest
Shortfalls during the related Prepayment Period exceeds the Compensating
Interest for such Distribution Date.
1933 Act: The Securities Act of 1933, as amended.
Nonrecoverable Advance: Any portion of an Advance or Servicing
Advance previously made or proposed to be made by a Servicer that, in the good
faith judgment of a Servicer, will not be ultimately recoverable by a Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, the President, an Executive Vice
President, Senior Vice President, a Vice President, or other authorized
officer, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor, the Sellers, the Servicers, a
Sub-Servicer or the Trustee, as the case may be, and delivered to the
Depositor, the Sellers, the Servicers or the Trustee, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Servicer, reasonably acceptable to the Trustee. With
respect to the definition of Eligible Account in this Article I and Sections
2.05 and 7.04 hereof and any opinion dealing with the qualification of the
REMIC or compliance with the REMIC Provisions, such counsel must (i) in fact
be independent of the Depositor and the Servicer, (ii) not have any direct
financial interest in the Depositor or the Servicer or in any affiliate of
either of them and (iii) not be connected with the Depositor or the Servicer
as an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions.
Optional Termination: The purchase of the Mortgage Loans pursuant to
Section 10.01.
Optional Termination Date: The date fixed by MLS for the purchase of
the Mortgage Loans pursuant to Section 10.01.
OTS: The Office of Thrift Supervision.
Outsourcer: As defined in Section 3.02.
Participant: A broker, dealer, bank, other financial institution or
other Person for whom DTC effects book-entry transfers and pledges of
securities deposited with DTC.
Pass-Through Entity: (a) a regulated investment company described in
Section 851 of the Code, a real estate investment trust described in Section
856 of the Code, a common trust fund or an organization described in Section
1381(a) of the Code, (b) any partnership, trust or estate or (c) any person
holding a Class A Certificate as nominee for another person.
Pass-Through Rate: For any interest-bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement. Interest on the Certificates other than the LIBOR
Certificates will be computed on the basis of a 360-day year comprised of
twelve 30-day months. Interest on the LIBOR Certificates will be computed on
the basis of a 360-day year and the actual number of days elapsed in the
related Accrual Period.
Payoff: Any payment of principal on a Mortgage Loan equal to the
entire outstanding Stated Principal Balance of such Mortgage Loan, if received
in advance of the last scheduled Due Date for such Mortgage Loan and
accompanied by an amount of interest equal to accrued unpaid interest on the
Mortgage Loan to the date of such payment-in-full.
Payoff Earnings: For any Distribution Date with respect to which a
Payoff was received by Servicer during the related Prepayment Period, the
aggregate of the interest earned by such Servicer from investment of each such
Payoff from the date of receipt of such Payoff until the Business Day
immediately preceding the related Distribution Date (net of investment
losses).
Payoff Interest: For any Distribution Date with respect to a WMMSC
Serviced Loan or Calmco Serviced Loan, as applicable, for which a Payoff was
received on or after the first calendar day of the month of such Distribution
Date and before the 15th calendar day of such month, an amount of interest
thereon at the applicable Net Mortgage Rate from the first day of the month of
distribution through the day of receipt thereof; to the extent (together with
Payoff Earnings and the aggregate Servicing Fee payable to WMMSC, or Calmco,
as applicable) not required to be distributed as Compensating Interest on such
Distribution Date, Payoff Interest shall be payable to WMMSC or Calmco, as
applicable, as additional servicing compensation.
Percentage Interest: As to any Certificate, either the percentage
set forth on the face thereof or equal to the percentage obtained by dividing
the Denomination of such Certificate by the aggregate of the Denominations of
all Certificates of the same Class.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Physical Certificates: As set forth in the Preliminary Statement.
Preference Amount: As defined in the Class III-A-1 Policy.
Preference Claim: As defined in Section 4.03(h).
Premium Percentage: The amount set forth as such in the Insurance
Agreement.
Premium Rate Mortgage Loans: With respect to Loan Group I, the
Mortgage Loans having Net Mortgage Rates in excess of 7.25% with respect to
Loan Group II, the Mortgage Loans having Net Mortgage Rates in excess of
8.25%. With respect to Loan Group III, the Mortgage Loans having Net Mortgage
Rates in excess of 7.54%.
Prepayment Interest Shortfall: As to any Mortgage Loan, Distribution
Date and Principal Prepayment (other than a Principal Prepayment on a WMMSC
Serviced Loan or Calmco Serviced Loan received during the period from and
including the 1st day to and including the 14th day of the month of such
Distribution Date) received during the related Prepayment Period, the
difference between (i) one full month's interest at the applicable Mortgage
Rate (giving effect to any applicable Relief Act Reduction, Debt Service
Reduction and Deficient Valuation), as reduced by the Servicing Fee Rate, on
the outstanding principal balance of such Mortgage Loan immediately prior to
such prepayment and (ii) the amount of interest actually received with respect
to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Penalty: With respect to any Mortgage Loan, any penalty
required to be paid if the Mortgagor prepays such Mortgage Loan as provided in
the related Mortgage Note or Mortgage.
Prepayment Period: With respect to each Distribution Date and each
Payoff or Curtailment with respect to a MLS Serviced Loan and a GreenPoint
Serviced Loan, the related "Prepayment Period" will be the calendar month
preceding the month in which the related Distribution Date occurs. With
respect to each Distribution Date and each Payoff with respect to a WMMSC
Serviced Mortgage Loan or a Calmco Serviced Mortgage Loan, the related
"Prepayment Period" will commence on the 15th day of the month preceding the
month in which the related Distribution Date occurs (or, in the case of the
first Distribution Date, commencing on the Cut-off Date) and will end on the
14th day of the month in which such Distribution Date occurs. With respect to
each Distribution Date and each Curtailment, the related "Prepayment Period"
will be the calendar month preceding the month in which the related
Distribution Date occurs.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Principal Payment Amount: For any Distribution Date and Loan Group,
the sum of (i) the principal portion of the Scheduled Payments on the Mortgage
Loans in such Loan Group due on the related Due Date, (ii) the principal
portion of repurchase proceeds received with respect to any Mortgage Loan in
such Loan Group which was repurchased as permitted or required by this
Agreement during the Calendar month preceding the month of the distribution
date and (iii) any other unscheduled payments of principal which were received
on the Mortgage Loans in such Loan Group during the related Prepayment Period,
other than Principal Prepayments or Liquidation Principal.
Principal Prepayment: Any payment of principal on a Mortgage Loan
which constitutes a Payoff or Curtailment.
Principal Prepayment Amount: For any Distribution Date and Loan
Group, the sum of all Principal Prepayments which were received during the
related Prepayment Period.
Principal Transfer Amount: For any Distribution Date and each
Undercollateralized Group, the excess, if any, of the aggregate Class
Principal Balance of the Class A Certificates related to such
Undercollateralized Group over the aggregate Stated Principal Balance of the
Mortgage Loans in such group.
Private Certificates: As set forth in the Preliminary Statement.
Pro Rata Allocation: With respect to Excess Losses or Extraordinary
Losses, the allocation of such losses to all Classes of Certificates (other
than the Class P Certificates and the Notional Amount Certificates), pro rata,
according to their respective Class Principal Balances in reduction thereof.
Prospectus: The Prospectus, dated December 29, 2000, relating to the
offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the 1933 Act with respect to the offer and sale of the offered
certificates.
Prospectus Supplement: The Prospectus Supplement, dated March 29,
2001, relating to the offering of the Offered Certificates in the form in
which it was or will be filed with the Securities and Exchange Commission
pursuant to Rule 424(b) under the 1933 Act with respect to the offer and sale
of the offered certificates.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by a Seller pursuant to Section 2.02 or 2.03 or purchased at the
option of a Servicer pursuant to Section 3.11(g), the sum of (i) 100% of the
unpaid principal balance of the Mortgage Loan on the date of such purchase,
(ii) accrued and unpaid interest on the Mortgage Loan at the applicable
Mortgage Rate (reduced by the related Servicing Fee Rate, if the purchaser is
also the Servicer thereof) from the date through which interest was last paid
by the Mortgagor to the Due Date in the month in which the Purchase Price is
to be distributed to Certificateholders and (iii) the amount of any
unreimbursed Servicing Advances made by the Servicer with respect to such
Mortgage Loan. With respect to any Mortgage Loan required or allowed to be
purchased, the Servicer or the related Seller, as applicable, shall deliver to
the Trustee an Officer's Certificate as to the calculation of the Purchase
Price.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each state having jurisdiction over such insurer in connection
with the insurance policy issued by such insurer, duly authorized and licensed
in such states to transact a mortgage guaranty insurance business in such
states and to write the insurance provided by the insurance policy issued by
it, approved as a FNMA- or FHLMC-approved mortgage insurer or having a claims
paying ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by a
Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit K (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution
(or, in the case of a substitution of more than one mortgage loan for a
Deleted Mortgage Loan, an aggregate principal balance), not in excess of, and
not more than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (iv)
have a remaining term to maturity no greater than (and not more than one year
less than that of) the Deleted Mortgage Loan; and (v) comply with each
representation and warranty set forth in Section 2.03(b).
Rating Agencies: Xxxxx'x, S&P and Fitch, or any successors thereto.
Ratings: As of any date of determination, the ratings, if any, of
the Certificates as assigned by the Rating Agencies (determined without regard
to the Class III-A-1 Policy).
Realized Loss: The amount determined by the related Servicer and
evidenced by an Officers' Certificate delivered to the Trustee, in connection
with any Mortgage Loan equal to: (i) for any Liquidated Mortgage Loan, the
excess of its principal balance plus interest at a rate equal to the
applicable Net Mortgage Rate from the due date as to which interest was last
paid up to the first Due Date after the liquidation over any Net Liquidation
Proceeds received in connection with the liquidation, after application of all
withdrawals permitted to be made by that Servicer from the Collection Account
for the Mortgage Loan; (ii) for any Mortgage Loan that has become the subject
of a Deficient Valuation, the excess of the principal balance of the Mortgage
Loan over the principal amount as reduced in connection with the proceedings
resulting in the Deficient Valuation; (iii) for any Mortgage Loan that has
become the subject of a Debt Service Reduction, the present value of all
monthly Debt Service Reductions on the Mortgage Loan, assuming that the
mortgagor pays each Scheduled Payment on the applicable Due Date and that no
Principal Prepayments are received on the Mortgage Loan, discounted monthly at
the applicable Mortgage Rate; or (iv) the amount of any reduction by that
Servicer to the principal balance of the Mortgage Loan pursuant to any
modification permitted by this Agreement.
Record Date: With respect to any Distribution Date and the
Certificates other than the LIBOR Certificates held in Book-Entry Form, the
close of business on the last Business Day of the month preceding the month in
which the applicable Distribution Date occurs. With respect to the LIBOR
Certificates that are not Physical Certificates and any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date; provided, however, that following the date on which Definitive
Certificates for a Class of LIBOR Certificates are available pursuant to
Section 5.02, the Record Date shall be the close of business on the last
Business Day of the calendar month immediately preceding the month of such
Distribution Date.
Reference Bank Rate: As to any Accrual Period relating to the LIBOR
Certificates as follows: the arithmetic mean (rounded upwards, if necessary,
to the nearest one sixteenth of a percent) of the offered rates for United
States dollar deposits for one month which are offered by the Reference Banks
as of 11:00 A.M., London time, on the Interest Determination Date prior to the
first day of such Accrual Period to prime banks in the London interbank market
for a period of one month in amounts approximately equal to the aggregate
Class Principal Balance of the LIBOR Certificates; provided that at least two
such Reference Banks provide such rate. If fewer than two offered rates
appear, the Reference Bank Rate will be the arithmetic mean of the rates
quoted by one or more major banks in New York City, selected by the Trustee
after consultation with Calmco, as of 11:00 A.M., New York City time, on such
date for loans in U.S. Dollars to leading European banks for a period of one
month in amounts approximately equal to the aggregate Class Principal Balance
of the LIBOR Certificates. If no such quotations can be obtained, the
Reference Bank Rate shall be the Reference Bank Rate applicable to the
preceding Accrual Period.
Reference Banks: Three major banks that are engaged in the London
interbank market, selected by the Trustee after consultation with Calmco.
Registration Statement: That certain registration statement on Form
S-3, as amended (Registration No. 333-49820), relating to the offering by the
Depositor from time to time of its Mortgage-Backed Pass-Through Certificates
(Issuable in Series) as heretofore declared effective by the Securities and
Exchange Commission.
Regular Certificates: All of the Certificates other than the Class
AR Certificates.
Reimbursement Amount: The meaning set forth in Section
4.01(A)(d)(ix) hereof.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit", within the
meaning of Section 860D of the Code. Reference herein to REMIC refers to the
Master REMIC and the Subsidiary REMIC, as the context requires.
REMIC Election: An election, for federal income tax purposes, to
treat certain assets as a REMIC.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement in respect of such Mortgage Loan or the related Mortgaged
Property.
Responsible Officer: When used with respect to the Trustee, shall
mean any officer within the corporate trust department of the Trustee,
including any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
Rule 144A: Rule 144A under the 1933 Act, as in effect from time to
time.
Scheduled Final Distribution Date: The Distribution Date in April
2031.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan pursuant to the terms of the related Mortgage Note Loan.
Seller: GreenPoint and WMMSC, as applicable.
Senior Certificates: As specified in the Preliminary Statement.
Senior Liquidation Amount: The Group I Senior Liquidation Amount,
Group II Senior Liquidation Amount or the Group III Senior Liquidation Amount,
as applicable.
Senior Percentage: The Group I Senior Percentage, the Group II
Senior Percentage or the Group III Senior Percentage as applicable.
Senior Prepayment Percentage: For each Loan Group and any
Distribution Date before April 2006, 100%. During the next four years, this
percentage will be calculated as follows:
(i) for each Loan Group and any Distribution Date occurring in or
between April 2006 and March 2007, the Senior Percentage for that Loan
Group and Distribution Date plus 70% of the Subordinate Percentage for
that Loan Group and Distribution Date;
(ii) for each Loan Group and any Distribution Date occurring in or
between April 2007 and March 2008, the Senior Percentage for that Loan
Group and Distribution Date plus 60% of the Subordinate Percentage for
that Loan Group and Distribution Date;
(iii) for each Loan Group and any Distribution Date occurring in or
between April 2008 and March 2009, the Senior Percentage for that Loan
Group and Distribution Date plus 40% of the Subordinate Percentage for
that Loan Group and Distribution Date;
(iv) for each Loan Group and any Distribution Date occurring in or
between April 2009 and March 2010, the Senior Percentage for that Loan
Group and Distribution Date plus 20% of the Subordinate Percentage for
that Loan Group and Distribution Date; and
(v) for each Loan Group and any Distribution Date thereafter, the
Senior Percentage for that Loan Group and that Distribution Date.
Notwithstanding the foregoing, if the Senior Percentage for a Loan
Group and Distribution Date exceeds the initial Senior Percentage for that
Loan Group as of the Closing Date, then the Senior Prepayment Percentage for
all three Loan Groups and that Distribution Date will equal 100%. Moreover, on
any Distribution Date, if (a) the balance of Mortgage Loans 60 or more days
delinquent on any Distribution Date exceeds 4.00% and (b) the aggregate
Realized Losses through that Distribution Date, prior to the sixth, seventh,
eighth, ninth and thirtieth anniversaries of the first Distribution Date, 30%,
35%, 40%, 45% and 50%, respectively, of the original balance of the
Subordinate Certificates, then the Senior Prepayment Percentage for all Loan
Groups for that Distribution Date shall equal 100%. Finally, if on any
Distribution Date the allocation to the Senior Certificates in the percentage
required would reduce the sum of the Class Principal Balances of those
Certificates below zero, the Senior Prepayment Percentage for that Loan Group
and Distribution Date will be limited to the percentage necessary to reduce
that sum to zero.
Senior Principal Distribution Amount: The Group I Senior Principal
Distribution Amount, the Group II Senior Principal Distribution Amount or the
Group III Senior Principal Distribution Amount, as applicable.
Servicers: WMMSC, GreenPoint, MLS and Calmco, any successor in
interest or any successor servicer appointed as provided herein.
Servicer Employee: As defined in Section 3.18.
Servicer Mortgage File: All documents pertaining to a Mortgage Loan
not required to be included in the Trustee Mortgage File and held by the
Servicer or any Sub-Servicer.
Servicing Advance: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by a 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 a Servicer pursuant to Section 3.11 and any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of any REO Property (including default management and similar
services, appraisal services and real estate broker services); (iv) any
expenses incurred by a Servicer in connection with obtaining an environmental
inspection or review pursuant to the second paragraph of Section 3.11(a) and
(v) compliance with the obligations under Section 3.09.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount equal to one month's interest at the Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
of such Distribution Date (prior to giving effect to any Scheduled Payments
due on such Mortgage Loan on such Due Date), subject to reduction as provided
in Section 3.14.
Servicing Fee Rate: As to each Mortgage Loan, the per annum rate set
forth on the related Mortgage Loan Schedule, which may be disclosed on the
Mortgage Loan Schedule in two parts identified as the servicing fee and the
master servicing fee.
Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage
Loans whose name and specimen signature appear on a list of servicing officers
furnished to the Trustee and MBIA by a Servicer on the Closing Date pursuant
to this Agreement, as such list may from time to time be amended and delivered
to the Trustee and MBIA.
Special Hazard Loss: A Realized Loss (or portion thereof) with
respect to a Mortgage Loan arising from any direct physical loss or damage to
a Mortgaged Property which is not covered by a standard hazard maintenance
policy with extended coverage or by a flood insurance policy, if applicable
(or which would not have been covered by such a policy had such a policy been
maintained), which is caused by or results from any cause except: (i) wear and
tear, deterioration, rust or corrosion, mold, wet or dry rot, inherent vice or
latent defect, animals, birds, vermin, insects; (ii) settling, subsidence,
cracking, shrinkage, bulging or expansion of pavements, foundations, walls,
floors, roofs or ceilings; (iii) errors in design, faulty workmanship or
faulty materials, unless the collapse of the property or part thereof ensues
and then only for the ensuing loss; (iv) nuclear or chemical reaction or
nuclear radiation or radioactive or chemical contamination, all whether
controlled or uncontrolled, and whether such loss be direct or indirect,
proximate or remote or be in whole or in part caused by, contributed to or
aggravated by a peril insured against in the Special Hazard Insurance Policy;
(v) hostile or warlike action in time of peace or war, including action in
hindering, combating or defending against an actual, impending or expected
attack (a) by any government of sovereign power, de jure or de facto, or by
any authority maintaining or using military, naval or air forces, (b) by
military, naval or air forces, or (c) by an agent of any such government,
power, authority or forces; (vi) any weapon of war employing atomic fission or
radioactive force whether in time of peace or war; or (vii) insurrection,
rebellion, revolution, civil war, usurped power or action taken by
governmental authority in hindering, combating or defending against such
occurrence, seizure or destruction under quarantine or customs regulations,
confiscation by order of any government or public authority, or risks of
contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: As of the Closing Date,
$3,808,257, subject in each case to reduction from time to time, to be an
amount equal on any distribution date to the lesser of (a) the greatest of (i)
1% of the aggregate of the principal balances of the Mortgage Loans, (ii)
twice the principal balance of the largest Mortgage Loan and (iii) the
aggregate principal balances of the Mortgage Loans secured by Mortgaged
Properties located in the single California postal zip code area having the
highest aggregate principal balance of any such zip code area and (b) the
Special Hazard Loss Coverage Amount as of the closing date less the amount, if
any, of losses attributable to Special Hazard Mortgage Loans incurred since
the closing date. All principal balances for the purpose of this definition
will be calculated as of the first day of the month preceding such
distribution date after giving effect to scheduled installments of principal
and interest on the mortgage loans then due, whether or not paid.
Special Hazard Loss Mortgage Loan: A Mortgage Loan with respect to
which there has been a Special Hazard Loss.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and any date of
determination, the principal balance of that Mortgage Loan as of the Cut-off
Date, after application of all scheduled principal payments due on or before
the Cut-off Date, whether or not received, reduced by all amounts allocable to
principal that have been distributed to Certificateholders with respect to
that Mortgage Loan on or before that date of determination, and as further
reduced to the extent that any Realized Loss on that Mortgage Loan has been
allocated to one or more classes of Certificates on or before that date of
determination.
Stepdown Percentage: For any distribution date, the percentage
indicated below:
DISTRIBUTION DATE OCCURRING IN STEPDOWN PERCENTAGE
April 2001 through March 2006 0%
April 2006 through March 2007 30%
April 2007 through March 2008 40%
April 2008 through March 2009 60%
April 2009 through March 2010 80%
April 2010 and after 100%
Stripped Interest Rate: For each Premium Rate Mortgage Loan in each
Loan group, the excess of the Net Mortgage Rate for that mortgage loan over
7.25% per annum with respect to a group I Premium Rate Mortgage Loan, 8.25%
per annum with respect to a group II Premium Rate Mortgage Loan and 7.54% per
annum with respect to a group III Premium Rate Mortgage Loan.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Component Balance: For any of Loan Group I, Loan Group
II or Loan Group III as of any date of determination, the then outstanding
aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group
(less the applicable Class P Fraction of any applicable Class P Mortgage Loan)
minus the sum of the then outstanding aggregate Class Principal Balance of the
related Class A Certificates.
Subordinate Liquidation Amount: For any Distribution Date, the
excess, if any, of the aggregate Liquidation Principal of all Mortgage Loans
which became Liquidated Mortgage Loans during the calendar month preceding the
month of that Distribution Date over the sum of the Group I Senior Liquidation
Amount, the Group II Senior Liquidation Amount and the Group III Senior
Liquidation Amount for such Distribution Date.
Subordinate Percentage: As to any Distribution Date, the aggregate
Class Principal Balance of the Subordinate Certificates divided by the then
outstanding Stated Principal Balance of the Group I, Group II and Group III
Mortgage Loans.
Subordinate Prepayment Percentage: For each Loan Group and any
Distribution Date, the excess of 100% over the Senior Prepayment Percentage
for that Loan Group; provided, however, that (i) if the aggregate Class
Principal Balance of the Group I Certificates has been reduced to zero, then
the Subordinate Prepayment Percentage for Loan Group I will equal 100%, (ii)
if the aggregate Class Principal Balance of the Group II Certificates has been
reduced to zero, then the Subordinate Prepayment Percentage for Loan Group II
will equal 100% and (iii) if the aggregate Class Principal Balance of the
Group III Certificates has been reduced to zero, then the Subordinate
Prepayment Percentage for Loan Group III will equal 100%.
Subordinate Principal Distribution Amount: For any Distribution
Date, the excess of (A) the sum of (i) the Group I Subordinate Percentage of
the Principal Payment Amount for Loan Group I, (ii) the Group II Subordinate
Percentage of the Principal Payment Amount for Loan Group II (exclusive of the
portion thereof attributable to the Class II-P Principal Distribution Amount),
(iii) the Group III Subordinate Percentage of the Principal Payment Amount for
Loan Group III (exclusive of the portion thereof attributable to the Class
III-P Principal Distribution Amount), (iv) the Subordinate Principal
Prepayments Distribution Amount (without regard to the proviso in its
definition), and (v) the Subordinate Liquidation Amount over (B) the sum of
(x) the amounts required to be distributed to the Class P Certificates
pursuant to clause (i) of Section 4.01(A)(d) on that Distribution Date, (y) if
one or more of the aggregate Class Principal Balance of the Group I
Certificates, the aggregate Class Principal Balance of the Group II
Certificates (other than the Class II-P Certificates) or the aggregate Class
Principal Balance of the Group III Certificates (other than the Class III-P
Certificates) has been reduced to zero, principal paid from the Available
Distribution Amount of the Loan Group related to such paid in full classes to
the remaining paid in full classes, as described in Section 4.06(a), and (z)
the amounts paid from the Available Distribution Amount for the
Overcollateralized Group to the Senior Certificates of the Undercollateralized
Group or Groups, as described Section 4.06(b).
Subordinate Principal Prepayments Distribution Amount: For any
Distribution Date, the sum of (i) the Subordinate Prepayment Percentage of the
Principal Prepayment Amount for Loan Group I, (ii) the Subordinate Prepayment
Percentage of the Principal Prepayment Amount for Loan Group II (exclusive of
the portion attributable to the Class II-P Principal Distribution Amount); and
(iii) the Subordinate Prepayment Percentage of the Principal Prepayment Amount
for Loan Group III (exclusive of the portion attributable to the Class III-P
Principal Distribution Amount); provided, however, that if the amount
specified in clause (B) of the definition of "Subordinate Principal
Distribution Amount" is greater than the sum of the amounts specified in
clauses (A)(i), (A)(ii), (A)(iii) and (A)(v) of that definition, then the
Subordinate Principal Prepayments Distribution Amount will be reduced by the
amount of that excess.
Subordination Level: On any specified date is, with respect to any
Class of Subordinate Certificates, the percentage obtained by dividing the sum
of the Class Principal Balances of all Classes of Subordinate Certificates
that are subordinate in right of payment to that Class by the sum of the
aggregate Class Principal Balances of all Classes of Certificates as of that
date before giving effect to distributions or allocations of Realized Losses
on that date.
Subservicer: Any entity which is servicing 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 pursuant to which the Servicer delegates any of its servicing
responsibilities with respect to any of the Mortgage Loans.
Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC Regular
Interests.
Subsidiary REMIC Regular Interest: Any one of the "regular
interests" in either Subsidiary REMIC described in the Preliminary Statement.
Substitution Adjustment Amount: As defined in Section 2.03.
Subordinate Certificates: As specified in the Preliminary Statement.
Substitution Adjustment Amount: As defined in Section 2.03.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)-1T. Initially, the Tax Matters Person
shall be the Trustee.
Telerate Page 3750: The display designated as page 3750 on Bridge
Telerate Service (or such other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks).
Transferee Affidavit and Agreement: As defined in Section
6.02(g)(i)(B).
Trust Fund: The corpus of the trust created by this Agreement
consisting of (a) the Mortgage Loans listed in the Mortgage Loan Schedule,
including all interest and principal received or receivable by the Depositor
on or with respect to the Mortgage Loans after the Cut-off Date, but not
including payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date, together with the Mortgage Files relating
to the Mortgage Loans, (b) REO Property, (c) the Collection Account and the
Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement, (d) any insurance policies with
respect to the Mortgage Loans, including the GEMICO PMI Policy and the Class
III-A-1 Policy, and (e) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
Trustee: Bank One, National Association, a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and
any successor thereto, as provided herein.
Trustee Fee: The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, in an amount equal to one-twelfth
of the Trustee Fee Rate multiplied by the Stated Principal Balance of the
Mortgage Loans immediately prior to such Distribution Date.
Trustee Fee Rate: 0.0048% per annum.
Trustee Mortgage File: The mortgage documents listed in Section 2.01
hereof pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Trustee Mortgage File pursuant to this Agreement.
Undercollateralized Group: As defined in Section 4.06.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58,
65 Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
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,
94% of all Voting Rights shall be allocated among the Class A, Class P and
Class B Certificates. The portion of such 94% Voting Rights allocated to each
of the Class A, Class P and Class B Certificates shall be based on the
fraction, expressed as a percentage, the numerator of which is the aggregate
Class Principal Balance then outstanding and the denominator of which is the
Class Principal Balance of all Classes then outstanding. The Class I-A-9,
Class II-A-2 and Class X Certificates shall each be allocated 1% of the Voting
Interest. Voting Interests shall be allocated among the Certificates within
each such Class in proportion to their respective Denominations; provided,
that MBIA shall be assigned the Voting Rights of the Class III-A-1
Certificates in the absence of any MBIA Default. The Class AR shall have no
voting rights.
WMMSC: Washington Mutual Mortgage Securities Corp., and its
successors and assigns.
WMMSC Loans: The Mortgage Loans identified as such in the Mortgage
Loan Schedule, for which WMMSC is the applicable Seller.
WMMSC Mortgage Loan Purchase Agreement: That certain mortgage loan
purchase agreement dated as of March 1, 2001, between DLJMC, as purchaser, and
WMMSC, as seller, of the WMMSC Loans.
WMMSC Serviced Loans: The Mortgage Loans, identified as such in the
Mortgage Loan Schedule, for which WMMSC is the applicable Servicer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund.
(a) The Depositor hereby sells, transfers, assigns, delivers, sets
over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, the Depositor's right, title and
interest in and to (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date, which Mortgage Loans the
Depositor shall cause to be delivered to the Trustee on or prior to the
Closing Date, together with the Trustee Mortgage Files relating to the
Mortgage Loans, (b) REO Property, (c) the Collection Account and the
Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement, (d) any insurance policy with respect
to the Mortgage Loans, (e) the Depositor's rights under the Assignment and
Assumption Agreement and (f) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property. In
addition, on or prior to the Closing Date, the Depositor shall cause MBIA to
deliver the Class III-A-1 Policy to the Trustee and GEMICO to deliver the
GEMICO PMI Policy to the Trustee.
(b) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to the
Trustee for the benefit of the Certificateholders, the documents and
instruments with respect to each Mortgage Loan as assigned:
(i) (A) the original Mortgage Note bearing all intervening
endorsements and including any riders to the Mortgage Note, endorsed
"Pay to the order of ________________, without recourse" and signed
in the name of the last named endorsee by an authorized officer or
(B) with respect to any Lost Mortgage Note, a lost note affidavit
and indemnity from the related Seller stating that the original
Mortgage Note was lost or destroyed, (together with a copy of such
Mortgage Note, if available) and indemnifying the Trust Fund against
any loss, cost or liability resulting from the failure to deliver
the original Mortgage Note;
(ii) the original of any guarantee executed in connection with
the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon,
or copies certified by the related recording office or if the
original Mortgage has not yet been returned from the recording
office, a copy certified by or on behalf of the related Seller
indicating that such Mortgage has been delivered for recording. The
return directions for the original Mortgage should indicate, when
recorded, mail to the related Seller;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, (or, if an original of any of
these documents has not been returned from the recording office, a
copy thereof certified by or on behalf of the applicable Seller, the
original to be delivered to such Seller forthwith after return from
such recording office) with evidence of recording thereon, if any;
(v) the original Assignment of Mortgage as appropriate, in
recordable form, for each Mortgage Loan assigned in blank;
(vi) the originals of any intervening recorded Assignments of
Mortgage, showing a complete chain of assignment from origination to
the related Seller, including warehousing assignments, with evidence
of recording thereon (or, if an original intervening Assignment of
Mortgage has not been returned from the recording office, a copy
thereof certified by or on behalf of the applicable Seller, the
original to be delivered to the Trustee forthwith after return from
such recording office); and
(vii) the original mortgage title insurance policy, or copy of
title commitment (or in appropriate jurisdictions, attorney's
opinion of title and abstract of title).
In the event a Seller delivers to the Trustee certified copies of
any document or instrument set forth in this Section 2.01(b) because of a
delay caused by the public recording office in returning any recorded
document, such Seller shall deliver to the Trustee, within 60 days of the
Closing Date, an Officer's Certificate which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the
Trustee due solely to a delay caused by the public recording office, and (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation.
In the event that in connection with any Mortgage Loan the Depositor
cannot deliver (a) the original recorded Mortgage, (b) all interim recorded
assignments or (c) the lender's title policy (together with all riders
thereto) satisfying the requirements set forth above, concurrently with the
execution and delivery hereof because such document or documents have not been
returned from the applicable public recording office in the case of clause (a)
or (b) above, or because the title policy has not been delivered to the
applicable 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 and in the case of
(c) above, such original title policy (together with all riders thereto) upon
receipt from the applicable title insurer.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, the Trustee
shall (i) affix the Trustee's name to each Assignment of Mortgage, as the
assignee thereof, (ii) cause such assignment to be in proper form for
recording in the appropriate public office for real property records within
thirty (30) days after receipt thereof and (iii) cause to be delivered for
recording in the appropriate public office for real property records the
assignments of the Mortgages to the Trustee, except that, with respect to any
assignment of a Mortgage as to which the Trustee has not received the
information required to prepare such assignment in recordable form, the
Trustee's obligation to do so and to deliver the same for such recording shall
be as soon as practicable after receipt of such information and in any event
within thirty (30) days after the receipt thereof, and the Trustee need not
cause to be recorded any assignment which relates to a Mortgage Loan in any
jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered by the applicable Seller (at such Seller's expense) to the Trustee,
acceptable to the Rating Agencies, the recordation of such assignment is not
necessary to protect the Trustee's and the Certificateholders' interest in the
related Mortgage Loan.
If any original Mortgage Note referred to in Section 2.01(b)(i)
above cannot be located, the obligations of the Depositor to deliver such
documents shall be deemed to be satisfied upon delivery to the Trustee of a
photocopy of such Mortgage Note, if available, with a lost note affidavit and
indemnity. If any of the original Mortgage Notes for which a lost note
affidavit and indemnity was delivered to the Trustee is subsequently located,
such original Mortgage Note shall be delivered to the Trustee within three
Business Days.
(c) The Trustee is authorized to appoint any bank or trust company
approved by the Depositor as Custodian of the documents or instruments
referred to in this Section 2.01, and to enter into a Custodial Agreement for
such purpose and any documents delivered thereunder shall be delivered to the
Custodian and any Officer's Certificates delivered with respect thereto shall
be delivered to the Trustee and the Custodian.
(d) It is the express intent of the parties to this Agreement that
the conveyance of the Mortgage Loans by the Depositor to the Trustee as
provided in this Section 2.01 be, and be construed as, a sale of the Mortgage
Loans by the Depositor to the Trustee. It is, further, not the intention of
the parties to this Agreement that such conveyance be deemed a pledge of the
Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties to this Agreement, the Mortgage Loans are held to be the
property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans then (a) this
Agreement shall also be deemed to be a security agreement within the meaning
of Articles 8 and 9 of the New York Uniform Commercial Code; (b) the
conveyance provided for in this Section 2.01 shall be deemed to be a grant by
the Depositor to the Trustee for the benefit of the Certificateholders of a
security interest in all of the Depositor's right, title and interest in and
to the Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, whether in the form of cash, instruments, securities or other
property; (c) the possession by the Trustee or any Custodian of such items of
property and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "in possession by
the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the New York Uniform Commercial Code; and (d)
notifications to persons holding such property, and acknowledgments, receipts
or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Trustee for
the benefit of the Certificateholders for the purpose of perfecting such
security interest under applicable law (except that nothing in this clause (d)
shall cause any person to be deemed to be an agent of the Trustee for any
purpose other than for perfection of such security interests unless, and then
only to the extent, expressly appointed and authorized by the Trustee in
writing). The Depositor and the Trustee, upon directions from the Depositor,
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement.
SECTION 2.02 Acceptance by the Trustee.
(a) The Trustee acknowledges receipt of the documents identified in
the Initial Certification in the form annexed hereto as Exhibit I and declares
that it holds and will hold such documents and the other documents delivered
to it constituting the Mortgage Files, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive use
and benefit of all present and future Certificateholders.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, each Seller and Servicer an Initial Certification in the form
annexed hereto as Exhibit I. Based on its review and examination, and only as
to the documents identified in such Initial Certification, the Trustee
acknowledges that such documents appear regular on their face and relate to
such Mortgage Loan. The Trustee shall be under no duty or obligation to
inspect, review or examine said documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
Not later than 90 days after the Closing Date, the Trustee shall
deliver to the Depositor, each Seller and Servicer a Final Certification in
the form annexed hereto as Exhibit J, with any applicable exceptions noted
thereon.
If, in the course of such review, the Trustee finds any document
constituting a part of a Mortgage File which does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification; provided, however, that the Trustee shall not make any
determination as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or is sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates.
The related Seller shall promptly correct or cure such defect within
90 days from the date it was so notified of such defect and, if such Seller
does not correct or cure such defect within such period, such Seller shall
either (A) substitute for the related Mortgage Loan a Qualified Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (B) purchase such
Mortgage Loan from the Trustee within 90 days from the date such Seller was
notified of such defect in writing at the Purchase Price of such Mortgage
Loan; or such longer period not to exceed 720 days from the Closing Date if
the substitution or repurchase of a Mortgage Loan pursuant to this provision
is required by reason of a delay in delivery of any documents by the
appropriate recording office; provided, however, that a Seller shall have no
liability for recording any Assignment of Mortgage in favor of the Trustee or
for the Trustee's failure to record such Assignment of Mortgage, and provided,
further, that no Seller shall be obligated to repurchase or cure any Mortgage
Loan solely as a result of the Trustee's failure to record such Assignment of
Mortgage. The Trustee shall deliver written notice to each Rating Agency
within 270 days from the Closing Date indicating each Mortgage Loan (i) which
has not been returned by the appropriate recording office or (ii) as to which
there is a dispute as to location or status of such Mortgage Loan. Such notice
shall be delivered every 90 days thereafter until the related Mortgage Loan is
returned to the Trustee. Any such substitution pursuant to (A) above or
purchase pursuant to (B) above shall not be effected prior to the delivery to
the Trustee of the Opinion of Counsel required by Section 2.05 hereof, if any,
and any substitution pursuant to (A) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit K. No substitution is permitted to be made in any calendar
month after the Determination Date for such month. The Purchase Price for any
such Mortgage Loan shall be deposited by the applicable Seller in the
Certificate Account on or prior to the Business Day immediately preceding such
Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form of
Exhibit K hereto, the Trustee shall release the related Mortgage File to such
Seller and shall execute and deliver at such entity's request such instruments
of transfer or assignment prepared by such entity, in each case without
recourse, as shall be necessary to vest in such entity, or a designee, the
Trustee's interest in any Mortgage Loan released pursuant hereto.
(b) It is understood and agreed that the obligation of each Seller
to cure, substitute for or to repurchase any Mortgage Loan which does not meet
the requirements of Section 2.01 shall constitute the sole remedy respecting
such defect available to the Trustee, the Depositor and any Certificateholder
against such Seller.
SECTION 2.03 Representations and Warranties of the Sellers and
Servicers.
(a) Each of DLJMC, in its capacity as Seller, GreenPoint, in its
capacity as Servicer and Seller, WMMSC, in its capacity as Servicer and
Seller, MLS, in its capacity as Servicer, and Calmco, in its capacity as
Servicer, hereby makes the representations and warranties applicable to it set
forth in Schedule IIA, IIB, IIC, IID or IIE, as applicable hereto, and by this
reference incorporated herein, to the Depositor, the Trustee and MBIA, as of
the Closing Date, or if so specified therein, as of the Cut-off Date or such
other date as may be specified.
(b) Each of DLJMC, GreenPoint and WMMSC, in their capacities as
Sellers, hereby makes the representations and warranties set forth in Schedule
IIIA, IIIB or IIIC, as applicable hereto applicable to the DLJ Loans,
GreenPoint Loans and the WMMSC Loans, respectively, and by this reference
incorporated herein, to the Depositor, the Trustee and MBIA, as of the Closing
Date, or if so specified therein, as of the Cut-off Date or such other date as
may be specified.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Each Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made by it pursuant to Section
2.03(b) which materially and adversely affects the interests of the
Certificateholders (without regard to the Class III-A-1 Certificate Insurance
Policy) in any Mortgage Loan sold by such Seller to the Trust, it shall cure
such breach in all material respects, and if such breach is not so cured,
shall, (i) if such 90-day period expires prior to the second anniversary of
the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from
the Trust Fund and substitute in its place a Qualified Substitute Mortgage
Loan, in the manner and subject to the conditions set forth in this Section;
or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the
Trustee at the Purchase Price in the manner set forth below; provided,
however, that any such substitution pursuant to (i) above shall not be
effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05 hereof, if any, and any such substitution pursuant to
(i) above shall not be effected prior to the additional delivery to the
Trustee of a Request for Release substantially in the form of Exhibit K
relating to the Deleted Mortgage Loan and the Mortgage File for any such
Qualified Substitute Mortgage Loan. The related Seller shall promptly
reimburse the Trustee 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 or warranty described in this Section which
is made to the best of a Seller's knowledge, if it is discovered by either the
Depositor, any Seller, any Servicer or the Trustee that the substance of such
representation or warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan or the interests of
the Certificateholders therein, notwithstanding such Seller's lack of
knowledge with respect to the substance of such representation or warranty,
such inaccuracy shall be deemed a breach of the applicable representation or
warranty.
With respect to any Qualified Substitute Mortgage Loan or Loans, the
applicable Seller shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related Assignment of
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 applicable
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 such
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The applicable Seller shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Qualified Substitute
Mortgage Loan or Loans and such Seller shall deliver the amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, the Qualified Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the applicable 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
applicable Seller and shall execute and deliver at such Seller's direction
such instruments of transfer or assignment prepared by such Seller, in each
case without recourse, as shall be necessary to vest title in such Seller, or
its designee, the Trustee's interest in any Deleted Mortgage Loan substituted
for pursuant to this Section 2.03.
For any month in which a Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the 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 related Seller on
or before the Business Day immediately preceding the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be repurchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Certificate Account on
or before the Business Day immediately preceding the Distribution Date in the
month following the month during which such Seller became obligated hereunder
to repurchase or replace such Mortgage Loan and upon such deposit of the
Purchase Price, the delivery of the Opinion of Counsel if required by Section
2.05 and receipt of a Request for Release in the form of Exhibit K hereto, the
Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment prepared
by such Person, in each case without recourse, 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 or Section 2.03 shall be made more than
90 days after the Closing Date unless the applicable Seller delivers to the
Trustee an Opinion of Counsel, which Opinion of Counsel shall not be at the
expense of either the Trustee or the Trust Fund, addressed to the Trustee, to
the effect that such substitution will not (i) result in the imposition of the
tax on "prohibited transactions" on the Trust Fund or contributions after the
"startup date", as defined in Sections 860F(a)(2) and 860G(d) of the Code,
respectively, or (ii) cause the REMIC hereunder to fail to qualify as a REMIC
at any time that any Certificates are outstanding.
SECTION 2.06 Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
together with the assignment to it of all other assets included in the Trust
Fund, receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trustee, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has
executed the Certificates and caused them to be authenticated and delivered to
or upon the order of the Depositor in authorized denominations which evidence
ownership of the Trust Fund. The rights of the Holders of such Certificates to
receive distributions from the Trust Fund and all ownership interests of the
Holders of the Certificates in such distributions shall be as set forth in
this Agreement.
SECTION 2.07 REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trustee to treat
the Trust Fund as two separate REMICs under the Code and, if necessary, under
applicable state law. Each such election will be made on Form 1066 or other
appropriate federal tax or information return (including Form 8811) or any
appropriate state return (x) for the taxable year ending on the last day of
the calendar year in which the Certificates are issued and (y) for the taxable
year ending on the last day of the calendar year in which Certificates are
first sold to a third party. The Closing Date is hereby designated as the
"startup day" of each REMIC within the meaning of Section 860G(a)(9) of the
Code. The "regular interests" (within the meaning of Section 860G of the Code)
in the Master REMIC shall consist of the Regular Certificates and the Class AR
Certificates shall represent the beneficial ownership of the "residual
interest" in the subsidiary REMIC. The Depositor and the Trustee shall not
permit the creation of any "interests" (within the meaning of Section 860G of
the Code) in either REMIC other than the Certificates.
(b) The Trustee on behalf of the Holders of the Class AR
Certificates, shall act as agent for the Class AR Certificateholder as the
"tax matters person" (within the meaning of the REMIC Provisions) for each
REMIC, in the manner provided under Treasury regulations section 1.860F-4(d)
and temporary Treasury regulations section 301.6231(a)(7)-1T. By its
acceptance of a Class AR Certificate, each Holder thereof shall have agreed to
such appointment and shall have consented to the appointment of the Trustee as
its agent to act on behalf of each REMIC pursuant to the specific duties
outlined herein.
(c) A Holder of the Class AR Certificates, by the purchase of such
Certificates, shall be deemed to have agreed to timely pay, upon demand by the
Trustee, the amount of any minimum California state franchise taxes due with
respect to each REMIC under Sections 23151(a) and 23153(a) of the California
Revenue and Taxation Code. Notwithstanding the foregoing, the Trustee shall be
authorized to retain the amount of such tax from amounts otherwise
distributable to such Holder in the event such Holder does not promptly pay
such amount upon demand by the Trustee. In the event that any other federal,
state or local tax is imposed, including without limitation taxes imposed on a
"prohibited transaction" of a REMIC as defined in Section 860F of the Code,
such tax shall be charged against amounts otherwise available for distribution
to the applicable Holder of a Class AR Certificate and then against amounts
otherwise available for distribution to the Holders of Regular Certificates in
accordance with the provisions set forth in Section 4.01. The Trustee shall
promptly deposit in the Certificate Account any amount of "prohibited
transaction" tax that results from a breach of the Trustee's duties under this
Agreement. The Servicer shall promptly deposit in the Certificate Account any
amount of "prohibited transaction" tax that results from a breach of the
Servicer's duties under this Agreement.
(d) The Trustee shall act as attorney-in-fact and as agent on behalf
of the tax matters person of each REMIC and in such capacity the Trustee
shall: (i) prepare, sign and file, or cause to be prepared, signed and filed,
federal and state tax returns using a calendar year as the taxable year for
each REMIC when and as required by the REMIC Provisions and other applicable
federal income tax laws as the direct representative of each such REMIC in
compliance with the Code and shall provide copies of such returns as required
by the Code; (ii) make an election, on behalf of each REMIC, to be treated as
a REMIC on the federal tax return of such REMIC for its first taxable year, in
accordance with the REMIC Provisions; and (iii) prepare and forward, or cause
to be prepared and forwarded, to the Certificateholders and to any
governmental taxing authority all information reports as and when required to
be provided to them in accordance with the REMIC Provisions. The expenses of
preparing and filing such returns shall be borne by the Trustee. The Depositor
and Servicer shall provide on a prompt and timely basis to the Trustee or its
designee such information with respect to each REMIC as is in their possession
and reasonably required or requested by the Trustee to enable it to perform
its obligations under this subsection.
In its capacity as attorney-in-fact and as agent on behalf of the
tax matters person, the Trustee shall also: (A) act on behalf of each REMIC in
relation to any tax matter or controversy involving the Trust Fund, (B)
represent the Trust Fund in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority with respect
thereto and (C) cause to be paid solely from the sources provided herein the
amount of any taxes imposed on each REMIC when and as the same shall be due
and payable (but such obligation shall not prevent the 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).
(e) The Trustee shall provide (i) to any transferor of a Class AR
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class AR Certificate to any Person who is not a
permitted transferee, (ii) to the Trustee and the Trustee shall forward to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of each REMIC.
(f) The Trustee, the Depositor and the Holder of the Class AR
Certificates shall take any action or cause the Trust Fund to take any action
necessary to create or maintain the status of each REMIC as a REMIC under the
REMIC Provisions and shall assist each other as necessary to create or
maintain such status. Neither the Trustee nor the Holder of the Class AR
Certificates shall take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause the Trust Fund to take) any action that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of each REMIC as a REMIC or (ii) result in the imposition
of a tax upon a REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code) (either such event, an
"Adverse REMIC Event") unless the Trustee has received an Opinion of Counsel
(at the expense of the party seeking to take such action) to the effect that
the contemplated action will not endanger such status or result in the
imposition of such a tax.
The Trustee shall not take or fail to take any action (whether or
not authorized hereunder) as to which a Servicer or Depositor has advised it
in writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event could occur with respect to such action. In addition,
prior to taking any action with respect to a REMIC or their assets, or causing
any REMIC created hereunder to take any action, which is not expressly
permitted under the terms of this Agreement, the Trustee will consult with the
Servicers and Depositor or their designees, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect
to any REMIC created hereunder and the Trustee shall not take any such action
or cause that REMIC to take any such action as to which any Servicer or
Depositor has advised it in writing that an Adverse REMIC Event could occur.
In addition, prior to taking any action with respect to any REMIC
created hereunder or the assets therein, or causing any REMIC created
hereunder to take any action, which is not expressly permitted under the terms
of this Agreement, the Holder of the Class AR Certificates will consult with
the Trustee or its designee, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to any REMIC created
hereunder, and no such Person shall take any action or cause the Trust Fund to
take any such action as to which the Trustee has advised it in writing that an
Adverse REMIC Event could occur. The Trustee may consult with counsel to make
such written advice, and the cost of same shall be borne by the party seeking
to take action not permitted by this Agreement.
At all times as may be required by the Code, the Trustee will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of the REMICs as
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of a REMIC, as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of such REMIC, as defined in Section
860G(c) of the Code, on any contributions to a REMIC after the Startup Day
therefor pursuant to Section 860G(d) of the Code, or any other tax is imposed
by the Code or any applicable provisions of state or local tax laws, such tax
shall be charged (i) to a Servicer, if such tax arises out of or results from
a breach by such Servicer of any of its obligations under this Agreement or if
such Servicer has in its sole discretion determined to indemnify the Trust
Fund against such tax, (ii) to the Trustee, if such tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Article II, or (iii) otherwise against amounts on deposit in the Collection
Account as provided by Section 3.09 and on the Distribution Date(s) following
such reimbursement the aggregate of such taxes shall be allocated in reduction
of the Interest Distribution Amount on each Class entitled thereto in the same
manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each REMIC on a calendar year and on an
accrual basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, no Servicer nor the Trustee shall
accept any contributions of assets to any REMIC created hereunder unless
(subject to 2.06(f)) such Servicer and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in a REMIC will
not cause that REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding, or subject that REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(j) No Servicer nor the Trustee shall (subject to Section 2.06(f))
enter into any arrangement by which a REMIC will receive a fee or other
compensation for services nor permit such REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(k) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for each REMIC.
(l) Neither the Trustee nor any Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed
in lieu of foreclosure, (ii) the bankruptcy of any REMIC created hereunder,
(iii) the termination of any REMIC created hereunder pursuant to Article X of
this Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or
III of this Agreement) nor acquire any assets for a REMIC, nor sell or dispose
of any investments in the Collection Account or the Certificate Account for
gain nor accept any contributions to a REMIC after the Closing Date (a) unless
it has received an Opinion of Counsel that such sale, disposition,
substitution or acquisition will not affect adversely the status of any REMIC
created hereunder as a REMIC or (b) unless such Servicer has determined in its
sole discretion to indemnify the Trust Fund against such tax.
(m) In order to enable the Trustee to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided to the
Trustee, within ten days after the Closing Date, all information or data that
the Trustee determines to be relevant for tax purposes to the valuations and
offering prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flows of the Certificates and
the Mortgage Loans and the Trustee shall be entitled to rely upon any and all
such information and data in the performance of its duties set forth herein.
Thereafter, each Servicer shall provide, promptly upon request therefor, any
such additional information or data that the Trustee may from time to time
reasonably request in order to enable the Trustee to perform its duties as set
forth herein and the Trustee shall be entitled to rely upon any and all such
information and data in the performance of its duties set forth herein. The
Depositor shall indemnify the Trustee and hold its harmless for any loss,
liability, damage, claim or expense of the Trustee arising from any failure of
the Depositor to provide, or to cause to be provided, accurate information or
data to the Trustee on a timely basis. Each Servicer shall indemnify the
Trustee and hold it harmless for any loss, liability, damage, claim or expense
of the Trustee arising from any failure of such Servicer to provide, or to
cause to be provided, accurate information or data required to be provided by
such Servicer to the Trustee on a timely basis. The indemnification provisions
hereunder shall survive the termination of this Agreement and shall extend to
any co-trustee appointed pursuant to this Agreement.
SECTION 2.08 Covenants of each Servicer.
Each Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) Such Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of the insurer
under each Primary Insurance Policy; and
(b) No written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by such Servicer
pursuant to this Agreement will contain any untrue statement of a material
fact.
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
WMMSC, Calmco, GreenPoint and MLS hereunder to service and administer the
Mortgage Loans shall be limited to the WMMSC Serviced Loans, the Calmco
Serviced Loans, the GreenPoint Serviced Loans and the MLS Serviced Loans,
respectively; and with respect to the duties and obligations of each Servicer,
references herein to related "Mortgage Loans" shall be limited to the WMMSC
Serviced Loans (and the related proceeds thereof and related REO Properties),
in the case of WMMSC, the Calmco Serviced Loans (and the related proceeds
thereof and related REO Properties) in the case of Calmco, the GreenPoint
Serviced Loans (and the related proceeds thereof and related REO Properties)
in the case of GreenPoint and the MLS Serviced Loans (and the related proceeds
thereof and related REO Properties) in the case of MLS; and in no event shall
any Servicer have any responsibility or liability with respect to any of the
other Mortgage Loans. In connection with such servicing and administration,
each Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02 hereof, to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof (i) to execute and deliver, on behalf
of the Certificateholders and the Trustee, customary consents or waivers and
other instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds, and (iv) to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided that a Servicer shall not take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee or the Certificateholders under this Agreement. Each
Servicer shall represent and protect the interests of the Trust Fund in the
same manner as it protects its own interests in mortgage loans in its own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan,
and shall not make or permit any modification, waiver or amendment of any
Mortgage Loan which would cause any REMIC created hereunder to fail to qualify
as a REMIC or result in the imposition of any tax under Section 860F(a) or
Section 860G(d) of the Code. Without limiting the generality of the foregoing,
each Servicer, in its own name or in the name of the Depositor and the
Trustee, is hereby authorized and empowered by the Depositor and the Trustee,
when such Servicer believes it appropriate in its reasonable judgment, to
execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans, and with respect
to the Mortgaged Properties held for the benefit of the Certificateholders.
Each Servicer shall prepare and deliver to the Depositor and/or the Trustee
such documents requiring execution and delivery by either or both of them as
are necessary or appropriate to enable such Servicer to service and administer
the Mortgage Loans to the extent that such Servicer is not permitted to
execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee shall execute such
documents and deliver them to such Servicer.
In accordance with the standards of the preceding paragraph and
unless determined in good faith to be a Nonrecoverable Advance, each Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall 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 may so permit.
Each Servicer hereby acknowledges that, to the extent such Servicer
has previously serviced some or all of the Mortgage Loans pursuant to another
servicing agreement, the provisions contained in this Agreement shall
supersede the provisions contained in such other servicing agreement from and
after the Closing Date.
SECTION 3.02 Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Mortgage Loans may be subserviced by a Subservicer on behalf
of the related Servicer in accordance with the servicing provisions of this
Agreement, provided that the Subservicer is a FNMA-approved lender or a FHLMC
seller/servicer in good standing. A Servicer may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by such Servicer of 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 the related
Servicer from any of its obligations hereunder and such Servicer shall remain
responsible hereunder for all acts and omissions of such Outsourcer as fully
as if such acts and omissions were those of such Servicer, and such Servicer
shall pay all fees and expenses of the Outsourcer from such Servicer's own
funds.
(b) At the cost and expense of a Servicer, without any right of
reimbursement from the Depositor, the Trustee, or the applicable Collection
Account, such Servicer shall be entitled to terminate the rights and
responsibilities of its Subservicer and arrange for any servicing
responsibilities to be performed by a successor Subservicer meeting the
requirements set forth in Section 3.02(a), provided, however, that nothing
contained herein shall be deemed to prevent or prohibit such Servicer, at such
Servicer's option, from electing to service the related Mortgage Loans itself.
In the event that a Servicer's responsibilities and duties under this
Agreement are terminated pursuant to Section 8.01, and if requested to do so
by the Trustee, such Servicer shall at its own cost and expense terminate the
rights and responsibilities of its Subservicer as soon as is reasonably
possible. Each Servicer shall pay all fees, expenses or penalties necessary in
order to terminate the rights and responsibilities of its Subservicer from
such Servicer's own funds without any right of reimbursement from the
Depositor, Trustee, or the applicable Collection Account.
(c) Notwithstanding any of the provisions of this Agreement
relating to agreements or arrangements between a Servicer and its Subservicer,
a Servicer and its Outsourcer, or any reference herein to actions taken
through the Subservicer, the Outsourcer, or otherwise, no Servicer shall be
relieved of its obligations to the Depositor, Trustee or Certificateholders
and shall be obligated to the same extent and under the same terms and
conditions as if it alone were servicing and administering the related
Mortgage Loans. Each Servicer shall be entitled to enter into an agreement
with its Subservicer and Outsourcer for indemnification of such Servicer or
Outsourcer, as applicable, by such Subservicer and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification.
For purposes of this Agreement, a Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the related
Mortgage Loans that are received by a related Subservicer regardless of
whether such payments are remitted by the Subservicer to such Servicer.
Any Subservicing Agreement and any other transactions or services
relating to the Mortgage Loans involving a Subservicer shall be deemed to be
between the Subservicer, and the related Servicer alone, and the Depositor,
the Trustee and the other Servicers shall have no obligations, duties or
liabilities with respect to a Subservicer including no obligation, duty or
liability of the Depositor, Trustee or other Servicers to pay a Subservicer's
fees and expenses.
SECTION 3.03 [Reserved]
SECTION 3.04 Trustee to Act as Servicer.
In the event that any Servicer shall for any reason no longer be a
Servicer hereunder (including by reason of an Event of Default), the Trustee
or its successor shall thereupon assume all of the rights and obligations of
such Servicer hereunder arising thereafter (except that the Trustee shall not
be (i) liable for losses of such Servicer pursuant to Section 3.05(e) 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, (iii) obligated to effectuate repurchases or substitutions of Mortgage
Loans hereunder including, but not limited to, repurchases or substitutions of
Mortgage Loans pursuant to Section 2.02 or 2.03 hereof or (iv) deemed to have
made any representations and warranties of such Servicer hereunder). Any such
assumption shall be subject to Section 8.02 hereof.
Each Servicer shall, upon request of the Trustee, but at the expense
of such Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement or substitute Subservicing Agreement
and the Mortgage Loans then being serviced thereunder and hereunder by such
Servicer and an accounting of amounts collected or held by it and otherwise
use its best efforts to effect the orderly and efficient transfer of the
substitute Subservicing Agreement to the assuming party.
SECTION 3.05 Collection of Mortgage Loans; Collection Accounts;
Certificate Account.
(a) Continuously from the date hereof until the principal and
interest on all Mortgage Loans have been paid in full or such Mortgage Loans
have become Liquidated Mortgage Loans, each Servicer shall proceed in
accordance with 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 the terms and provisions of any related
Primary Insurance Policy and shall take special care with respect to Mortgage
Loans for which a Servicer collects escrow payments in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loans and the Mortgaged Properties, to
the end that the installments payable by the Mortgagors will be sufficient to
pay such charges as and when they become due and payable. Consistent with the
foregoing, each Servicer may in its discretion (i) waive any late payment
charge or any prepayment charge or penalty interest in connection with the
prepayment of a Mortgage Loan and (ii) extend the due dates for payments due
on a Mortgage Note for a period not greater than 180 days; provided, however,
that such Servicer cannot extend the maturity of any such Mortgage Loan past
the date on which the final payment is due on the latest maturing Mortgage
Loan as of the Cut-off Date. In the event of any such arrangement, the related
Servicer shall make Advances on the related Mortgage Loan in accordance with
the provisions of Section 5.01 during the scheduled period in accordance with
the amortization schedule of such Mortgage Loan without modification thereof
by reason of such arrangements. No Servicer shall be required to institute or
join in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law.
(b) Each Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
Collection Accounts, in the form of time deposit or demand accounts, titled
"[Servicer's name], in trust for the Holders of Credit Suisse First Boston
Mortgage Securities Corp., Mortgage-Backed Pass-Through Certificates, Series
2001-9" or, if established and maintained by a Subservicer on behalf of a
Servicer, "[Subservicer's name], in trust for [Servicer's name]" or
"[Subservicer's name], as agent, trustee and/or bailee of principal and
interest custodial account for [Servicer's name], its successors and assigns,
for various owners of interest in [Servicer's name] mortgage-backed pools".
Each Collection Account shall be an Eligible Account acceptable to the
Depositor and Trustee. Notwithstanding the foregoing, one of the Collection
Accounts established by WMMSC shall be an Investment Account. Funds deposited
in a Collection Account may be drawn on by the applicable Servicer in
accordance with Section 3.08.
(c) Each Servicer shall deposit in the applicable Collection Account
on a daily basis, unless otherwise indicated, and retain therein, the
following collections remitted by Subservicers or payments received by such
Servicer and payments made by such Servicer subsequent to the Cut-off Date,
other than payments of principal and interest due on or before the Cut-off
Date:
(i) all payments on account of principal on the related Mortgage
Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the related Mortgage
Loans adjusted to the per annum rate equal to the Mortgage Rate reduced
by the related Servicing Fee Rate;
(iii) all Liquidation Proceeds on the related Mortgage Loans;
(iv) all Insurance Proceeds on the related Mortgage Loans including
amounts required to be deposited pursuant to Section 3.09 (other than
proceeds to be held in the Escrow Account and applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor in
accordance with Section 3.09);
(v) all Advances made by such Servicer pursuant to Section 5.01;
(vi) no later than the withdrawal from the Collection Account
pursuant to Section 3.08(a)(viii) each month, the applicable amount of
Compensating Interest for such Servicer for the related Prepayment
Period. The aggregate of such deposits shall be made from such Servicer's
own funds, without reimbursement therefor, up to a maximum amount per
month equal to the Compensating Interest, if any, for the Mortgage Loans
serviced by that Servicer and Distribution Date;
(vii) any amounts required to be deposited by such Servicer in
respect of net monthly income from REO Property pursuant to Section 3.11;
and
(viii) any other amounts required to be deposited hereunder.
The foregoing requirements for deposit into each Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, Ancillary Income need not be deposited by such
Servicer into such Collection Account. In addition, notwithstanding the
provisions of this Section 3.05, each Servicer may deduct from amounts
received by it, prior to deposit to the applicable Collection Account, any
portion of any Scheduled Payment representing the applicable Servicing Fee. In
the event that a Servicer shall remit any amount not required to be remitted,
it may at any time withdraw or direct the institution maintaining the related
Collection Account to withdraw such amount from such Collection Account, any
provision herein to the contrary notwithstanding. Such withdrawal or direction
may be accomplished by delivering written notice thereof to the Trustee or
such other institution maintaining such Collection Account which describes the
amounts deposited in error in such Collection Account. Each Servicer shall
maintain adequate records with respect to all withdrawals made by it pursuant
to this Section. All funds deposited in a Collection Account shall be held in
trust for the Certificateholders until withdrawn in accordance with Section
3.08(a).
(d) On or prior to the Closing Date, the Trustee shall establish and
maintain, on behalf of the Certificateholders, the Certificate Account. The
Trustee shall, promptly upon receipt, deposit in the Certificate Account and
retain therein the following:
(i) the aggregate amount remitted by all Servicers to the Trustee
pursuant to Section 3.08(a)(viii);
(ii) any amount deposited by the Trustee pursuant to Section 3.05(e)
in connection with any losses on Eligible Investments; and
(iii)any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
In the event that a Servicer shall remit to the Trustee any amount
not required to be remitted, it may at any time direct the Trustee to withdraw
such amount from the Certificate Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in
the Certificate Account. All funds deposited in the Certificate Account shall
be held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section
3.08(b). In no event shall the Trustee incur liability for withdrawals from
the Certificate Account at the direction of a Servicer.
(e) Each institution at which a Collection Account or the
Certificate Account is maintained shall either hold such funds on deposit
uninvested or shall invest the funds therein as directed in writing by the
related Servicer or the Trustee, respectively, in Eligible Investments, which
shall mature not later than (i) in the case of a Collection Account, the
Business Day immediately preceding the related Distribution Date and (ii) in
the case of the Certificate Account, the Business Day immediately preceding
the related Distribution Date and, in each case, shall not be sold or disposed
of prior to its maturity. All income and gain net of any losses realized from
any such balances or investment of funds on deposit in a Collection Account
shall be for the benefit of the related Servicer as servicing compensation and
shall be remitted to it monthly as provided herein. The amount of any realized
losses in a Collection Account incurred in any such account in respect of any
such investments shall promptly be deposited by the related Servicer in the
related Collection Account. The Trustee in its fiduciary capacity shall not be
liable for the amount of any loss incurred in respect of any investment or
lack of investment of funds held in a Collection Account and made in
accordance with this Section 3.05. All income and gain net of any losses
realized from any such investment of funds on deposit in the Certificate
Account shall be for the benefit of the Trustee as compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses
in the Certificate Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Trustee in the Certificate
Account.
(f) Each Servicer shall give notice to the Trustee, each related
Seller, each Rating Agency, MBIA, and the Depositor of any proposed change of
the location of the related Collection Account prior to any change thereof.
The Trustee shall give notice to each Servicer, each Seller, each Rating
Agency, MBIA and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof.
SECTION 3.06 Establishment of and Deposits to Escrow Accounts;
Permitted Withdrawals from Escrow Accounts; Payments
of Taxes, Insurance and Other Charges.
(a) To the extent required by the related Mortgage Note and not
violative of 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, in the case of Servicers other than
Calmco, "Credit Suisse First Boston Mortgage Securities Corp., Mortgage-Backed
Pass-Through Certificates, Series 2001-9", in the case of Calmco, "Calmco
Servicing L.P., as Servicer for Credit Suisse First Boston Mortgage Securities
Corp. Mortgage-Backed Pass-Through Certificates, Series 2001-9" or, if
established and maintained by a Subservicer on behalf of a Servicer,
"[Subservicer's name], in trust for [Servicer's name]" or "[Subservicer's
name], as agent, trustee and/or bailee of taxes and insurance custodial
account for [Servicer's name], its successors and assigns, for various owners
of interest in [Servicer's name] mortgage-backed pools". The Escrow Accounts
shall be Eligible Accounts. Funds deposited in the Escrow Account may be drawn
on by the related Servicer in accordance with Section 3.06(d).
(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.
(c) Each Servicer shall make withdrawals from the Escrow Account
only to effect such payments as are required under this Agreement, as set
forth in Section 3.06(d). Each Servicer shall be entitled to retain any
interest paid on funds deposited in the related Escrow Account by the
depository institution, other than interest on escrowed funds required by law
to be paid to the Mortgagor. To the extent required by law, the applicable
Servicer shall pay interest on escrowed funds to the Mortgagor notwithstanding
that the Escrow Account may be non-interest bearing or that interest paid
thereon is insufficient for such purposes.
(d) Withdrawals from the Escrow Account or Accounts may be made by
the related Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse such Servicer for any Servicing Advances made by
such Servicer with respect to a related Mortgage Loan, but only from
amounts received on the related Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the related Collection Account to reduce the
principal balance of the related Mortgage Loan in accordance with the
terms of the related Mortgage and Mortgage Note;
(v) for application to restore or repair of the related Mortgaged
Property in accordance with the procedures outlined in Section 3.09(e);
(vi) to pay to such Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in such Escrow
Account; and
(vii) to clear and terminate such Escrow Account on the termination
of this Agreement.
(e) With respect to each Mortgage Loan, the applicable Servicer
shall maintain accurate records reflecting the status of ground rents and
taxes and any other item which may become a lien senior to the lien of the
related Mortgage and the status of Primary Insurance Policy premiums, GEMICO
PMI Fees and fire and hazard insurance coverage and shall obtain, from time to
time, all bills for the payment of such charges (including renewal premiums)
and shall effect or cause to be effected payment thereof prior to the
applicable penalty or termination date.
SECTION 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans; Inspections.
(a) Each Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage
Loans and all accounts, insurance information and other matters relating to
this Agreement, such access being afforded without charge, but only upon
reasonable written request and during normal business hours at the office
designated by such Servicer.
(b) Each Servicer shall inspect the related Mortgaged Properties as
often as deemed necessary by such Servicer in such Servicer's sole discretion,
to assure itself that the value of such Mortgaged Property is being preserved.
In addition, if any Mortgage Loan is more than 60 days delinquent, the
applicable Servicer shall conduct subsequent inspections in accordance with
Accepted Servicing Practices or as may be required by the primary mortgage
guaranty insurer. Each Servicer shall keep a written or electronic report of
each such inspection.
SECTION 3.08 Permitted Withdrawals from the Collection Accounts and
Certificate Account.
(a) Each Servicer may from time to time make withdrawals from the
related Collection Account for the following purposes:
(i) to pay to such Servicer (to the extent not previously retained
by such Servicer) the servicing compensation to which it is entitled
pursuant to Section 3.14, and to pay to such Servicer, as additional
servicing compensation, earnings on or investment income with respect to
funds in or credited to such Collection Account;
(ii) to reimburse such Servicer for unreimbursed Advances made by
it, such right of reimbursement pursuant to this subclause (ii) being
limited to amounts received on the Mortgage Loan(s) in respect of which
any such Advance was made (including without limitation, late recoveries
of payments, Liquidation Proceeds and Insurance Proceeds to the extent
received by such Servicer);
(iii) to reimburse such Servicer for any Nonrecoverable Advance
previously made;
(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 and (B) for unpaid Servicing Fees as provided
in Section 3.11 hereof;
(v) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02, 2.03 or 3.11, all amounts received thereon after the date
of such purchase;
(vi) to make any payments required to be made pursuant to Section
2.07(g);
(vii) to withdraw any amount deposited in such Collection Account
and not required to be deposited therein;
(viii) on or prior to the Business Day immediately preceding each
Distribution Date, to withdraw an amount equal to the portion of each
Available Distribution Amount applicable to the Mortgage Loans serviced
by such Servicer for such Distribution Date and remit such amount to the
Trustee for deposit in the Certificate Account; and
(ix) to clear and terminate such Collection Account upon termination
of this Agreement pursuant to Section 10.01 hereof.
Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Collection Account pursuant to such subclauses
(i), (ii), (iv) and (v). Prior to making any withdrawal from a Collection
Account pursuant to subclause (iii), 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.
(b) The Trustee shall withdraw funds from the Certificate Account
for distributions to Certificateholders, MBIA and GEMICO, in the manner
specified in this Agreement (and to withhold from the amounts so withdrawn,
the amount of any taxes that it is authorized to withhold pursuant to Section
2.07). In addition, the Trustee may from time to time make withdrawals from
the Certificate Account for the following purposes:
(i) to pay to itself the Trustee Fee and any investment income
earned for the related Distribution Date;
(ii) to withdraw and return to the applicable Servicer for deposit
to the applicable Collection Account any amount deposited in the
Certificate Account and not required to be deposited therein; and
(iii)to clear and terminate the Certificate Account upon termination
of the Agreement pursuant to Section 10.01 hereof.
SECTION 3.09 Maintenance of Hazard Insurance; Mortgage Impairment
Insurance and Primary Insurance Policy; Claims;
Restoration of Mortgaged Property.
(a) Each Servicer shall cause to be maintained for each Mortgage
Loan hazard insurance such that all buildings upon the Mortgaged Property are
insured by a generally acceptable insurer rated either: "V" or better in the
current Best's Key Rating Guide ("Best's") or acceptable to FNMA or FHLMC
against loss by fire, hazards of extended coverage and such other hazards as
are customary in the area where the Mortgaged Property is located, in an
amount which is at least equal to the lesser of (i) the replacement value of
the improvements securing such Mortgage Loan and (ii) the greater of (A) the
outstanding principal balance of the Mortgage Loan and (B) an amount such that
the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the
Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), the related Servicer shall cause a
flood insurance policy to be maintained with respect to such Mortgage Loan.
Such policy shall meet the requirements of the current guidelines of the
Federal Insurance Administration and be in an amount representing coverage
equal to the lesser of (i) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement cost basis (or
the unpaid principal balance of the mortgage if replacement cost coverage is
not available for the type of building insured) and (ii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973,
as amended.
If a Mortgage is secured by a unit in a condominium project, the
related Servicer shall verify that the coverage required of the owner's
association, including hazard, flood, liability, and fidelity coverage, is
being maintained in accordance with the requirements of the Servicer for
mortgage loans that it services on its own account.
Each Servicer shall cause to be maintained on each Mortgaged
Property such other additional special hazard insurance as may be required
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance, or pursuant to the
requirements of any Primary Insurance Policy insurer, or as may be required to
conform with Accepted Servicing Practices to the extent permitted by the
Mortgage Note, the Mortgage or applicable law provided that the Servicer shall
not be required to bear the cost of such insurance.
All policies required hereunder shall name the related Servicer as
loss payee and shall be endorsed with standard or union mortgagee clauses,
without contribution, which shall provide for prior written notice of any
cancellation, reduction in amount or material change in coverage.
A Servicer shall not interfere with the Mortgagor's freedom of
choice at the origination of such Mortgage Loan in selecting either his
insurance carrier or agent, provided, however, that such Servicer shall not
accept any such insurance policies from insurance companies unless such
companies are rated: B:III or better in Best's or acceptable to FNMA or FHLMC
and are licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The related Servicer shall determine that such policies
provide sufficient risk coverage and amounts, that they insure the property
owner, and that they properly describe the property address.
Pursuant to Section 3.05, any amounts collected by a Servicer under
any such policies (other than amounts to be deposited in the related Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with such Servicer's normal servicing
procedures) shall be deposited in the related Collection Account (subject to
withdrawal pursuant to Section 3.08(a)).
Any cost incurred by a Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added
to the principal balance of the Mortgage Loan, notwithstanding that the terms
of the Mortgage Loan so permit. Such costs shall constitute a Servicing
Advance and will be reimbursable to the Servicer to the extent permitted by
Section 3.08 hereof. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) In the event that a Servicer shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the related Mortgage Loans, then, to the extent
such policy provides coverage in an amount equal to the amount required
pursuant to Section 3.09(a) and otherwise complies with all other requirements
of Section 3.09(a), it shall conclusively be deemed to have satisfied its
obligations as set forth in Section 3.09(a). Any amounts collected by a
Servicer under any such policy relating to a Mortgage Loan shall be deposited
in the related Collection Account subject to withdrawal pursuant to Section
3.08(a). Such policy may contain a deductible clause, in which case, in the
event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 3.09(a), and there shall have been a
loss which would have been covered by such policy, the related Servicer shall
deposit in the related Collection Account at the time of such loss the amount
not otherwise payable under the blanket policy because of such deductible
clause, such amount to be deposited from such Servicer's funds, without
reimbursement therefor. Upon request of the Trustee, a Servicer shall cause to
be delivered to the Trustee a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Trustee. In connection with its activities as Servicer of the related Mortgage
Loans, such Servicer agrees to present, on behalf of itself, the Depositor,
and the Trustee for the benefit of the Certificateholders, claims under any
such blanket policy.
(c) With respect to each Mortgage Loan with a Loan-to-Value Ratio in
excess of 80% which the applicable Seller represented to be covered by a
Primary Insurance Policy as of the Cut-off Date, the related Servicer shall,
without any cost to the Depositor or the Trustee, maintain or cause the
Mortgagor to maintain in full force and effect a Primary Insurance Policy
insuring that portion of the Mortgage Loan in excess of 75% of value, and
shall pay or shall cause the Mortgagor to pay, the premium thereon on a timely
basis, until the loan-to-value ratio of such Mortgage Loan is reduced to 80%,
based on either (i) a current appraisal of the Mortgaged Property or (ii) the
appraisal of the Mortgaged Property obtained at the time the Mortgage Loan was
originated. In the event that such Primary Insurance Policy shall be
terminated, the related Servicer shall obtain from another Qualified Insurer a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated Primary Insurance Policy. If the insurer shall
cease to be a Qualified Insurer, the related Servicer shall determine whether
recoveries under the Primary Insurance Policy are jeopardized for reasons
related to the financial condition of such insurer, it being understood that
such Servicer shall in no event have any responsibility or liability for any
failure to recover under the Primary Insurance Policy for such reason. If the
related Servicer determines that recoveries are so jeopardized, it shall
notify the Mortgagor, if required, and obtain from another Qualified Insurer a
replacement insurance policy. The related Servicer shall not take any action
which would result in noncoverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of such Servicer would have been
covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 3.10, each
Servicer shall promptly notify the insurer under the related Primary Insurance
Policy, if any, of such assumption or substitution of liability in accordance
with the terms of such Primary Insurance Policy and shall take all actions
which may be required by such insurer as a condition to the continuation of
coverage under such Primary Insurance Policy provided that such required
actions are in compliance with all applicable law. If such Primary Insurance
Policy is terminated as a result of such assumption or substitution of
liability, the related Servicer shall obtain a replacement Primary Insurance
Policy as provided above; provided that under applicable law and the terms of
the related Mortgage Note and Mortgage the cost of such policy may be charged
to the successor Mortgagor.
With respect to the GEMICO PMI Mortgage Loans, the GEMICO PMI Policy
shall be maintained by the Trustee for the life of such Mortgage Loans, unless
otherwise prohibited by law. The applicable Servicer shall submit all claims
required to be made under the GEMICO PMI Policy in a timely fashion and shall
otherwise comply with the terms of the GEMICO PMI Policy. Each Servicer shall
deposit all amounts received under the GEMICO PMI Policy into the Collection
Account. The GEMICO PMI Fee shall be paid by the Trustee from amounts
withdrawn from the Certificate Account in accordance with Section 4.01. The
Trustee shall maintain the GEMICO PMI Policy.
With respect to Mortgage Loans which are not GEMICO PMI Mortgage
Loans, the applicable Servicer agrees to effect timely payment of the premiums
on each Primary Insurance Policy, and such payments shall constitute Servicing
Advances reimbursable to such Servicer pursuant to Section 3.08.
(d) In connection with its activities as servicer, each Servicer
agrees to prepare and present, on behalf of itself, the Depositor, the Trustee
and the Certificateholders, claims to the insurer under any Primary Insurance
Policy in a timely fashion in accordance with the terms of such Primary
Insurance Policy and, in this regard, to take such reasonable action as shall
be necessary to permit recovery under any Primary Insurance Policy respecting
defaulted Mortgage Loans. Pursuant to Section 3.05, any amounts collected by a
Servicer under any Primary Insurance Policy shall be deposited in the related
Collection Account, subject to withdrawal pursuant to Section 3.08.
(e) A Servicer need not obtain the approval of the Trustee prior to
releasing any Insurance Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. At a minimum, each Servicer
shall comply with the following conditions in connection with any such release
of Insurance Proceeds:
(i) such Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required
approvals with respect thereto;
(ii) such Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens; and
(iii) pending repairs or restoration, such Servicer shall place the
Insurance Proceeds in the related Escrow Account.
(f) If the Trustee is named as an additional loss payee, the related
Servicer is hereby empowered to endorse any loss draft issued in respect of
such a claim in the name of the Trustee.
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) Each Servicer shall use its best efforts to enforce any
"due-on-sale" provision contained in any related Mortgage or Mortgage Note and
to deny assumption by the person to whom the Mortgaged Property has been or is
about to be sold whether by absolute conveyance or by contract of sale, and
whether or not the Mortgagor remains liable on the Mortgage and the Mortgage
Note. When the Mortgaged Property has been conveyed by the Mortgagor, the
related Servicer shall, to the extent it has knowledge of such conveyance,
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that such Servicer
shall not exercise such rights if prohibited by law from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related Primary Insurance Policy, if any.
(b) If a Servicer reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, such Servicer shall enter into (i)
an assumption and modification agreement with the person to whom such property
has been conveyed, pursuant to which such person becomes liable under the
Mortgage Note and the original Mortgagor remains liable thereon or (ii) in the
event such Servicer is unable under applicable law to require that the
original Mortgagor remain liable under the Mortgage Note, a substitution of
liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of
the Mortgaged Property is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, a Servicer shall not be
deemed to be in default under this Section by reason of any transfer or
assumption which such Servicer reasonably believes it is restricted by law
from preventing, for any reason whatsoever. In connection with any such
assumption, no material term of the Mortgage Note, including without
limitation, the Mortgage Rate borne by the related Mortgage Note, the term of
the Mortgage Loan or the outstanding principal amount of the Mortgage Loan
shall be changed.
(c) To the extent that any Mortgage Loan is assumable, the related
Servicer shall inquire diligently into the creditworthiness of the proposed
transferee, and shall use the underwriting criteria for approving the credit
of the proposed transferee which are used by FNMA with respect to underwriting
mortgage loans of the same type as the Mortgage Loans. If the credit of the
proposed transferee does not meet such underwriting criteria, the related
Servicer diligently shall, to the extent permitted by the Mortgage or the
Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
(d) Subject to each Servicer's duty to enforce any due-on-sale
clause to the extent set forth in this Section 3.10, in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and such
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, such Servicer
shall prepare and deliver or cause to be prepared and delivered to the Trustee
for signature and shall direct, in writing, the Trustee to execute the
assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such Person. In connection with any such assumption, no material
term of the Mortgage Note may be changed. Together with each such
substitution, assumption or other agreement or instrument delivered to the
Trustee for execution by it, the related Servicer shall deliver an Officer's
Certificate signed by a Servicing Officer stating that the requirements of
this subsection have been met in connection therewith. The related Servicer
shall notify the Trustee that any such substitution or assumption agreement
has been completed by forwarding to the Trustee the original of such
substitution or assumption agreement, which in the case of the original shall
be added to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. Any fee collected by a
Servicer for entering into an assumption or substitution of liability
agreement will be retained by such Servicer as additional servicing
compensation.
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.
(a) Each Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
related Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
In connection with such foreclosure or other conversion, each Servicer shall
take such action as (i) such Servicer would take under similar circumstances
with respect to a similar mortgage loan held for its own account for
investment, (ii) shall be consistent with Accepted Servicing Practices, (iii)
such Servicer shall determine consistently with Accepted Servicing Practices
to be in the best interest of the Trustee and Certificateholders, and (iv) is
consistent with the requirements of the insurer under any Required Insurance
Policy; provided, however, that such Servicer shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration of
any property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the related Mortgage
Loan after reimbursement to itself of such expenses and (ii) that such
expenses will be recoverable to it through Liquidation Proceeds (respecting
which it shall have priority for purposes of withdrawals from the related
Collection Account). The related Servicer shall be responsible for all other
costs and expenses incurred by it in any such proceedings; provided, however,
that it shall be entitled to reimbursement thereof from the Liquidation
Proceeds with respect to the related Mortgaged Property, as provided in the
definition of Liquidation Proceeds and as provided in Section 3.08(a)(iv)(A).
Notwithstanding anything to the contrary contained in this
Agreement, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the related Servicer has reasonable cause to believe
that a Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, or if the Trustee otherwise requests, an environmental inspection or
review of such Mortgaged Property conducted by a qualified inspector shall be
arranged for by such Servicer. Upon completion of the inspection, the related
Servicer shall promptly provide the Trustee with a written report of
environmental inspection.
In the event the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
the related Servicer shall not proceed with foreclosure or acceptance of a
deed in lieu of foreclosure if the estimated costs of the environmental clean
up, as estimated in the environmental inspection report, together with the
Servicing Advances and Advances made by such Servicer and the estimated costs
of foreclosure or acceptance of a deed in lieu of foreclosure exceeds the
estimated value of the Mortgaged Property. If however, the aggregate of such
clean up and foreclosure costs, Advances and Servicing Advances are less than
or equal to the estimated value of the Mortgaged Property, then the related
Servicer may, in its reasonable judgment and in accordance with Accepted
Servicing Practices, choose to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure and such Servicer shall be reimbursed for all
reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as
applicable, from the related Liquidation Proceeds, or if the Liquidation
Proceeds are insufficient to fully reimburse such Servicer, such Servicer
shall be entitled to be reimbursed from amounts in the related Collection
Account pursuant to Section 3.08(a) hereof. In the event the related Servicer
does not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure pursuant to the first sentence of this paragraph, such Servicer
shall be reimbursed for all Advances and Servicing Advances made with respect
to the related Mortgaged Property from the related Collection Account pursuant
to Section 3.08(a) hereof, and such Servicer shall have no further obligation
to service such Mortgage Loan under the provisions of this Agreement.
(b) With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. 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. Upon request, the related Servicer shall furnish
to the Trustee on or before each Distribution Date a statement with respect to
any REO Property covering the operation of such REO Property for the previous
calendar month and such Servicer's efforts in connection with the sale of such
REO Property and any rental of such REO Property incidental to the sale
thereof for the previous calendar month. That statement shall be accompanied
by such other information as the Trustee shall reasonably request and which is
necessary to enable the Trustee to comply with the reporting requirements of
the REMIC Provisions. The net monthly rental income, if any, from such REO
Property shall be deposited in the related Collection Account no later than
the close of business on each Determination Date. The related Servicer shall
perform the tax reporting and withholding required by Sections 1445 and 6050J
of the Code with respect to foreclosures and abandonments, the tax reporting
required by Section 6050H of the Code with respect to the receipt of mortgage
interest from individuals and any tax reporting required by Section 6050P of
the Code with respect to the cancellation of indebtedness by certain financial
entities, by preparing such tax and information returns as may be required, in
the form required, and delivering the same to the Trustee for filing.
To the extent consistent with Accepted Servicing Practices, the
related Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in an amount which is equal to the
outstanding principal balance of the related Mortgage Loan (as reduced by any
amount applied as a reduction of principal at the time of acquisition of the
REO Property), liability insurance and, to the extent required and available
under the Flood Disaster Protection Act of 1973, as amended, flood insurance
in the amount required above.
(c) In the event that the Trust Fund acquires any Mortgaged Property
as aforesaid or otherwise in connection with a default or imminent default on
a Mortgage Loan, the related Servicer shall dispose of such Mortgaged Property
prior to three years after the end of the calendar year of its acquisition by
the Trust Fund unless (i) the Trustee shall have been supplied with an Opinion
of Counsel to the effect that the holding by the Trust Fund of such Mortgaged
Property subsequent to such three-year period will not result in the
imposition of taxes on "prohibited transactions" of 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
obligors is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of
a deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the related Servicer will cause compliance with the provisions
of Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto)
necessary to assure that no withholding tax obligation arises with respect to
the proceeds of such foreclosure except to the extent, if any, that proceeds
of such foreclosure are required to be remitted to the obligors on such
Mortgage Loan.
(d) The decision of a Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by such Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding. The income earned from the management of any REO Properties, net
of reimbursement to such Servicer for 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 Mortgage Notes and shall be deposited
into the related Collection Account. To the extent the net income received
during any calendar month is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Rate on the
related Mortgage Loan for such calendar month, such excess shall be considered
to be a partial prepayment of principal of the related Mortgage Loan.
(e) The proceeds from any liquidation of a Mortgage Loan, as well as
any income from an REO Property, will be applied in the following order of
priority: first, to reimburse the related Servicer for any related
unreimbursed Servicing Advances and Servicing Fees; second, to reimburse such
Servicer for any unreimbursed Advances; third, to reimburse the related
Collection Account for any Nonrecoverable Advances (or portions thereof) that
were previously withdrawn by such Servicer pursuant to Section 3.08(a)(iii)
that related to such Mortgage Loan; fourth, to accrued and unpaid interest (to
the extent no Advance has been made for such amount or any such Advance has
been reimbursed) on the Mortgage Loan or related REO Property, at the per
annum rate equal to the related Mortgage Rate reduced by the related Servicing
Fee Rate and the GEMICO PMI Fee Rate, if applicable, to the Due Date occurring
in the month in which such amounts are required to be distributed; and fifth,
as a recovery of principal of the Mortgage Loan. Excess Proceeds, if any, from
the liquidation of a Liquidated Mortgage Loan will be retained by the related
Servicer as additional servicing compensation pursuant to Section 3.14.
(f) Each Servicer of the Mortgage Loans may (but is not obligated
to) enter into a special servicing agreement with an unaffiliated holder of a
100% Percentage Interest of the most junior class of Subordinate Certificates,
subject to each Rating Agency's acknowledgment that the Ratings of the
Certificates in effect immediately prior to the entering into such agreement
(determined without regard to the Class III-A-1 Policy) would not be
qualified, downgraded or withdrawn and the Certificates would not be placed on
credit review status (except for possible upgrading) as a result of such
agreement. Any such agreement may contain provisions whereby such Holder may
(i) instruct the related Servicer to commence or delay foreclosure proceedings
with respect to delinquent Mortgage Loans and will contain provisions for the
deposit of cash with such Servicer by the holder that would be available for
distribution to Certificateholders if Liquidation Proceeds are less than they
otherwise may have been had such Servicer acted in accordance with its normal
procedures, (ii) purchase delinquent Mortgage Loans from the Trust Fund
immediately prior to the commencement of foreclosure proceedings at a price
equal to the aggregate outstanding Principal Balance of such Mortgage Loans
plus accrued interest thereon at the applicable Mortgage Rate through the last
day of the month in which such Mortgage Loan is purchased, and/or (iii) assume
all of the servicing rights and obligations with respect to delinquent
Mortgage Loans so long as such Holder (A) meets the requirements for a
Subservicer set forth in Section 3.02(a), and (B) will service such Mortgage
Loans in accordance with this Agreement.
(g) Each Servicer, at its option, may (but is not obligated to)
purchase from the Trust Fund, (a) any Mortgage Loan that is delinquent in
payment 90 or more days or (b) any related Mortgage Loan with respect to which
there has been initiated legal action or other proceedings for the foreclosure
of the related Mortgaged Property either judicially or non-judicially. Any
such purchase shall be made by such entity with its own funds at a price equal
to the Purchase Price for such Mortgage Loan.
SECTION 3.12 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by a
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, such Servicer will immediately notify the Trustee
by delivering, or causing to be delivered a "Request for Release"
substantially in the form of Exhibit K. Upon receipt of such request, the
Trustee shall within three Business Days release the related Mortgage File to
the related Servicer, and the Trustee shall within three Business Days of such
Servicer's direction execute and deliver to such Servicer the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage in each case provided by
such Servicer, together with the Mortgage Note with written evidence of
cancellation thereon. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor. From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose, collection under
any policy of flood insurance, any fidelity bond or errors or omissions
policy, or for the purposes of effecting a partial release of any Mortgaged
Property from the lien of the Mortgage or the making of any corrections to the
Mortgage Note or the Mortgage or any of the other documents included in the
Mortgage File, the Trustee shall, within three Business Days of delivery to
the Trustee of a Request for Release in the form of Exhibit K signed by a
Servicing Officer, release the Mortgage File to the related Servicer. Subject
to the further limitations set forth below, the related Servicer shall cause
the Mortgage File or documents so released to be returned to the Trustee 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 a Request
for Release in the form of Exhibit K, signed by a Servicing Officer.
If a Servicer at any time seeks to initiate a foreclosure proceeding
in respect of any Mortgaged Property as authorized by this Agreement, such
Servicer shall deliver or cause to be delivered to the Trustee, for signature,
as appropriate, any court pleadings, requests for trustee's sale or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law or
in equity.
SECTION 3.13 Documents, Records and Funds in Possession of a
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, each
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the related Servicer from time to time required to be delivered
to the Trustee pursuant to the terms hereof and shall account fully to the
Trustee for any funds received by such Servicer or which otherwise are
collected by such Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, a Servicer in respect of any Mortgage Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds, including but not limited to, any funds on deposit in a
Collection Account, shall be held by the related Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. Each Servicer
also agrees that it shall not create, incur or subject any Mortgage File or
any funds that are deposited in the related Collection Account, Certificate
Account or any related Escrow Account, or any funds that otherwise are or may
become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that
such Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to such Servicer under
this Agreement.
SECTION 3.14 Servicing Fee.
(a) As compensation for its services hereunder, each Servicer shall
be entitled to withdraw from the applicable Collection Account or to retain
from interest payments on the related Mortgage Loans the amount of its
Servicing Fee for each Mortgage Loan serviced by it, less any amounts in
respect of its Servicing Fee payable by such Servicer pursuant to Section
3.05(c)(vi). The Servicing Fee is limited to, and payable solely from, the
interest portion of such Scheduled Payments collected by the related Servicer
or as otherwise provided in Section 3.08(a).
(b) Additional servicing compensation in the form of Ancillary
Income shall be retained by the related Servicer. Each Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including the payment of any expenses incurred in
connection with any Subservicing Agreement entered into pursuant to Section
3.02 and the payment of any premiums for insurance required pursuant to
Section 3.18) and shall not be entitled to reimbursement thereof except as
specifically provided for in this Agreement.
SECTION 3.15 Access to Certain Documentation.
Each Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinate
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the related
Mortgage Loans required by applicable regulations of the OTS and the FDIC.
Such access shall be afforded without charge, but only upon reasonable and
prior written request and during normal business hours at the offices
designated by such Servicer. Nothing in this Section shall limit the
obligation of any Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of such
Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section. Nothing in this
Section 3.15 shall require any Servicer to collect, create, collate or
otherwise generate any information that it does not generate in its usual
course of business.
SECTION 3.16 Annual Statement as to Compliance.
Each Servicer shall deliver to the Depositor, the Rating Agencies,
MBIA and the Trustee on or before 120 days after the end of such Servicer's
fiscal year, commencing in its 2001 fiscal year, an Officer's Certificate
stating, as to the signer thereof, that (i) a review of the activities of such
Servicer during the preceding calendar year and of the performance of such
Servicer under this Agreement has been made under such officer's supervision,
and (ii) to the best of such officer's knowledge, based on such review, such
Servicer has fulfilled all its obligations under this Agreement throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof and the action being taken by such Servicer to cure such
default.
SECTION 3.17 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 120 days after the end of each Servicer's fiscal year,
commencing in its 2001 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, any Seller or any
affiliate thereof) which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Trustee, MBIA and the
Depositor to the effect that (i) with respect to each Servicer other than
WMMSC, such firm has examined certain documents and records relating to the
servicing of mortgage loans which such Servicer is servicing, including the
related Mortgage Loans, and that, on the basis of such examination, conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs, nothing has come to their
attention which would indicate that such servicing has not been conducted in
compliance with Accepted Servicing Practices, except for (a) such exceptions
as such firm shall believe to be immaterial, and (b) such other exceptions as
shall be set forth in such statement and (ii) with respect to WMMSC as
servicer of the WMMSC Serviced Loans, in connection with the firm's
examination of the financial statements as of the previous December 31 of
WMMSC's parent corporation (which shall include a limited examination of
WMMSC's financial statements), nothing came to their attention that indicated
that WMMSC was not in compliance with the terms of this Agreement, except for
(a) such exceptions as such firm believes to be immaterial, and (b) such other
exceptions as are set forth in such statement. In rendering such statement,
such firm may rely, as to matters relating to direct servicing of mortgage
loans by Subservicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Guide for HUD Approved Title II Approved
Mortgagees and Loan Correspondent Programs (rendered within one year of such
statement) of independent public accountants with respect to the related
Subservicer. Copies of such statement shall be provided by the Trustee to any
Certificateholder upon request at the related Servicer's expense, provided
such statement is delivered by such Servicer to the Trustee.
SECTION 3.18 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
Each Servicer shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the related Mortgage Loans ("Servicer Employees"). Any such
Fidelity Bond and Errors and Omissions Insurance Policy shall be in the form
of the Mortgage Banker's Blanket Bond and shall protect and insure the related
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Servicer Employees. Such Fidelity
Bond and Errors and Omissions Insurance Policy also shall protect and insure
each Servicer against losses in connection with the release or satisfaction of
a related Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.18 requiring such
Fidelity Bond and Errors and Omissions Insurance Policy shall diminish or
relieve a Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by FNMA. Upon the
request of the Trustee, the related Servicer shall cause to be delivered to
the Trustee a certificate of insurance of the insurer and the surety including
a statement from the surety and the insurer that such fidelity bond and
insurance policy shall in no event be terminated or materially modified
without 30 days' prior written notice to the Trustee.
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Priorities of Distribution.
(A) On each Distribution Date, distributions will be made first with
respect to each Loan Group, to GEMICO, in the amount of the GEMICO Premium on
the Mortgage Loans covered under the GEMICO PMI Policy in that Loan Group and,
with respect to Group III, to the Certificate Insurer, the MBIA Premium, and
thereafter in the following order and priority:
(a) with respect to Certificate Group I, before the Credit Support
Depletion Date, to the extent of the Available Distribution
Amount relating to Loan Group I for that Distribution Date:
(i) first, to the Group I Certificates (other than the Class
I-A-12 Certificates), pro rata, an amount allocable to
interest equal to the Interest Distribution Amount for
such Distribution Date, any shortfall being allocated pro
rata among such Classes in proportion to the amount of the
Interest Distribution Amount that would have been
distributed in the absence of such shortfall; provided,
however, that on or before the Class I-A-11 Accretion
Terminate Date, the amount of interest that would
otherwise be distributable to the Class I-A-11
Certificates pursuant to this clause (a)(i) will instead
be distributed as principal to the Class I-A-10
Certificates until the Class Principal Balance of the
Class I-A-10 Certificates has been reduced to zero; and
(ii) second, to the Group I Certificates (other than the Class
I-A-9, Class I-X-1 and the Class I-X-2 Certificates), as
principal, an amount up to the Group I Senior Principal
Distribution Amount for that Distribution Date,
concurrently, as follows:
(0) 0.0000000000% to the Class I-A-12 Certificates, until
their Class Principal Balance has been reduced to
zero;
(0) 00.0000000000% to the Class I-A-10 Certificates and
the Class I-A-11 Certificates, sequentially, in that
order, until the Class Principal Balance of the each
such Class has been reduced to zero;
(0) 00.0000000000%, sequentially, as follows: (A) first,
to the Class I-A-4 Certificates, the Class I-A-4
Priority Amount, until the Class I-A-4 Class
Principal Balance has been reduced to zero and (B)
second, to the Class AR, Class I-A-1, Class I-A-2,
Class I-A-3, Class I-A-5, Class I-A-6, Class I-A-7,
Class I-A-8 and Class I-A-4 Certificates,
sequentially, in that order, until the Class
Principal Balance of each such Class has been reduced
to zero;
(b) with respect to the Group II Certificates, before the Credit
Support Depletion Date, to the extent of the Available
Distribution Amount relating to Loan Group II for that
Distribution Date:
(i) first, to the Class II-P Certificates, the Class II-P
Principal Distribution Amount;
(ii) second, to the Group II Certificates (other than the Class
II-A-4 and Class II-P Certificates), pro rata, an amount
allocable to interest equal to the Interest Distribution
Amount for such Distribution Date, any shortfall being
allocated pro rata among such Classes in proportion to the
amount of the Interest Distribution Amount that would have
been distributed in the absence of such shortfall;
provided, however, that on or before the Class II-A-3
Accretion Termination Date, the amount allocable to
interest that would otherwise be distributable to the
Class II-A-3 Certificates pursuant to this clause (b)(ii)
will instead be distributed as principal to the Class
II-A-1 Certificates until the Class Principal Balance of
the Class II-A-1 Certificates has been reduced to zero;
(iii) third, to the Group II Certificates (other than the Class
II-P, Class II-A-2 and Class II-X Certificates), as
principal, the Group II Senior Principal Distribution
Amount concurrently, as follows:
(0) 0.0000000000% to the Class II-A-4 Certificates until
their Class Principal Balance has been reduced to
zero;
(0) 00.0000000000% to the Class II-A-5 Certificates until
their Class Principal Balance has been reduced to
zero; and
(0) 00.0000000000% to the Class II-A-1 and Class II-A-3
Certificates, sequentially, until their Class
Principal Balances have been reduced to zero;
(c) with respect to Group III Certificates, before the Credit
Support Depletion Date, to the extent of the Available
Distribution Amount relating to Loan Group III for that
Distribution Date:
(i) first, to the Class III-P Certificates, the Class III-P
Principal Distribution Amount;
(ii) second, to the Group III Certificates (other than the
Class III-P Certificates), pro rata, an amount allocable
to interest equal to the Interest Distribution Amount for
such Distribution Date, any shortfall being allocated pro
rata among such Classes in proportion to the amount of the
Interest Distribution Amount that would have been
distributed in the absence of such shortfall; and
(iii) third, to the Group III certificates (other than the
Class III-P and Class III-X Certificates), as principal,
the Group III Senior Principal Distribution Amount,
sequentially, in the following order of priority:
(1) first, to the Class III-A-2 Certificates, the Class
III-A-2 Priority Amount, until their Class Principal
Balance has been reduced to zero;
(2) second, to the Class III-A-1 Certificates, until
their Class Principal Balance has been reduced to
zero; and
(3) third, to the Class III-A-2 Certificates, any
remaining portion of the Group III Senior Principal
Distribution Amount, until their Class Principal
Balance has been reduced to zero;
(d) with respect to the Class P, Class B and Class AR Certificates
and the Certificate Insurer, before the Credit Support
Depletion Date, to the extent of the Available Distribution
Amount for Group I, Group II and Group III remaining after the
payments described in paragraphs (a) through (c) above, subject
to paragraphs 4.01(B) and (C) below, and further subject to any
payments to the Group I, Group II and Group III Certificates as
described Section 4.06:
(i) first, to the Class II-P and Class III-P Certificates, to
the extent of amounts otherwise available to pay the
Subordinate Principal Distribution Amount (without regard
to clause (B)(x) of that definition) on that Distribution
Date, the sum of (a) principal in an amount equal to the
Class II-P or Class III-P Fraction of any loss on a Class
II-P or Class III-P Mortgage Loan, respectively, incurred
in the previous calendar month (other than a loss that has
been allocated by Pro Rata Allocation) and (b) the sum of
the amounts, if any, by which the amount described in
clause (a) above on each prior Distribution Date exceeded
the amount actually distributed on those prior
Distribution Dates and not subsequently distributed;
provided, however, that any amounts distributed in respect
of losses pursuant to this paragraph (d)(i) will not cause
a further reduction in the Class Principal Balance on the
Class P Certificates; provided, further, that if the
amount otherwise available to pay the Subordinate
Principal Distribution Amount (without regard to (B)(x) of
that definition for any Distribution Date is insufficient
to cover such outstanding principal losses as provided
above, then that amount will be allocated pro rata to the
Class II-P and Class III-P Certificates based on the
amount these certificates are entitled to received
pursuant to this paragraph (d)(i);
(ii) second, to the Class B-1 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for
such Class for such Distribution Date;
(iii) third, to the Class B-1 Certificates, their pro rata
share of the Subordinate Principal Distribution Amount;
(iv) fourth, to the Class B-2 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for
such Class for such Distribution Date;
(v) fifth, to the Class B-2 Certificates, their pro rata share
of the Subordinate Principal Distribution Amount;
(vi) sixth, to the Class B-3 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for
such Class for such Distribution Date;
(vii) seventh, to the Class B-3 Certificates, their pro rata
share of the Subordinate Principal Distribution Amount;
(viii) eighth, to the Junior Subordinate Certificates, interest
and principal in the same manner as for the Senior
Subordinate Certificates, first to the Class B-4
Certificates, then to the Class B-5 Certificates and then
to the Class B-6 Certificates;
(ix) ninth, to the Certificate Insurer, an amount (the
"Reimbursement Amount") equal to the sum of (a) all
amounts previously paid by the Certificate Insurer under
the Class III-A-1 Certificate Insurance Policy which have
not been previously reimbursed and any other amounts due
to the Certificate Insurer pursuant to the Insurance
Agreement and (b) interest on the foregoing at Late
Payment Rate set forth in the Insurance Agreement;
(x) tenth, to the Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates, in that order, up to
an amount of unreimbursed realized losses previously
allocated to that Class, if any; provided, however, that
any amounts distributed pursuant to this paragraph (d)(x)
will not cause a further reduction in the Class Principal
Balances of any of the Class B Certificates; and
(xi) eleventh, to the Class AR Certificates.
(e) On each Distribution Date on or after the Credit Support
Depletion Date, distributions of the Available Distribution
Amount for Loan Group I will be made with respect to the Group
I Certificates as follows:
(i) first, to the Group I Certificates (other than the Class
I-A-12), pro rata, an amount allocable to interest equal
to the Interest Distribution Amount for such Distribution
Date, any shortfall being allocated pro rata among such
Classes in proportion to the amount of the Interest
Distribution Amount that would have been distributed in
the absence of such shortfall;
(ii) second, to the Group I Certificates (other than the Class
I-A-9, Class I-X-1 and Class I-X-2 Certificates), pro
rata, as principal, the Group I Senior Principal
Distribution Amount; and
(iii) third, after any payments to the Group II and Group III
Certificates as described in Section 4.06, to the Class AR
Certificates.
(f) On each Distribution Date on or after the Credit Support
Depletion Date, distributions of the Available Distribution
Amount for Loan Group II will be made with respect to the Group
II Certificates and the Class AR Certificates as follows:
(i) first, to the Class II-P Certificates, the Class II-P
Principal Distribution Amount;
(ii) second, to the Group II Certificates (other than the Class
II-A-4 and Class II-P Certificates), pro rata, an amount
allocable to interest equal to the Interest Distribution
Amount for such Distribution Date, any shortfall being
allocated pro rata among such Classes in proportion to the
amount of the Interest Distribution Amount that would have
been distributed in the absence of such shortfall;
(iii) third, to the Class II-A-1, Class II-A-3, Class II-A-4
and Class II-A-5 Certificates, pro rata, as principal, the
Group II Senior Principal Distribution Amount; and
(iv) fourth, after any payments to the Group I and Group III
Certificates as described in Section 4.06, to the Class AR
Certificates.
(g) On each Distribution Date on or after the Credit Support
Depletion Date, distributions of the Available Distribution
Amount for Loan Group III will be made with respect to the
group III certificates and the Class AR Certificates as
follows:
(i) first, to the Class III-P Certificates, the Class III-P
Principal Distribution Amount;
(ii) second, to the Group III Certificates (other than the
Class III-P Certificates), pro rata, an amount allocable
to interest equal to the Interest Distribution Amount for
such Distribution Date, any shortfall being allocated pro
rata among such Classes in proportion to the amount of the
Interest Distribution Amount that would have been
distributed in the absence of such shortfall;
(iii) third, to the Class III-A-1 and Class III-A-2
Certificates, pro rata, as principal, the Group III Senior
Principal Distribution Amount; and
(iv) fourth, after any payments to the Group I and Group II
Certificates as described in Section 4.06, to the Class AR
Certificates.
(B) On each Distribution Date, the amount referred to in clause (i)
of the definition of Interest Distribution Amount for such
Distribution Date for each Class of Group I Certificates, Group II
Certificates and Group III Certificates shall be reduced by the
Trustee by, (i) the related Class' pro rata share (based on the
applicable Interest Distribution Amount for each such Class before
reduction pursuant to this Section 4.01(B)(i)) of Net Prepayment
Interest Shortfalls for Mortgage Loans in Loan Group I, Loan Group
II and Loan Group III; and (ii) the Class' Pro Rata Allocation of
(A) with respect to each Mortgage Loan in such Loan Groups that
became a Special Hazard Mortgage Loan during the related Prepayment
Period, the excess of one month's interest at the related Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan
as of the Due Date in such month over the amount of Liquidation
Proceeds applied as interest on such Mortgage Loan with respect to
such month, (B) after the Bankruptcy Coverage Termination Date, with
respect to each Mortgage Loan in such Loan Groups that became
subject to a Bankruptcy Loss during the related Prepayment Period,
the interest portion of the related Debt Service Reduction or
Deficient Valuation, (C) each Relief Act Reduction for any Mortgage
Loan in such Loan Groups incurred during the related Prepayment
Period, (D) each Extraordinary Loss for any Mortgage Loan during the
related Collection Period and (E) after the Fraud Loss Coverage
Termination Date, with respect to each Mortgage Loan in such Loan
Groups that became a Fraud Loan during the related Prepayment Period
the excess of one month's interest at the related Net Mortgage Rate
on the Stated Principal Balance of such Mortgage Loan as of the Due
Date in such month over the amount of Liquidation Proceeds applied
as interest on such Mortgage Loan with respect to such month.
(C) With respect to each Class of Subordinate Certificates, if on
any Distribution Date the related Subordination Level of such Class
is less than such percentage as of the Closing Date, no distribution
of Subordinate Principal Prepayment Distribution Amounts will be
made to any Class or Classes of Subordinate Certificates junior to
such Class (the "Restricted Classes") and the amount otherwise
distributable to the Restricted Classes in respect of such
Subordinate Principal Prepayment Distribution Amounts will be
allocated among the remaining Classes of Subordinate Certificates,
pro rata, based upon their respective Class Principal Balances.
SECTION 4.02 Allocation of Losses.
(a) Realized Losses, other than the Class P Fraction of the Realized
Loss, if applicable, and other than any Excess Loss or Extraordinary Loss on
the Mortgage Loans in each of Loan Group I, Loan Group II and Loan Group III
with respect to any Distribution Date shall be allocated by the Trustee to the
Classes of Certificates as follows:
(i) first, 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, and among the certificates of a Class in proportion to
their respective Percentage Interests; and
(ii) second, to the Class A Certificates related to that Loan Group,
pro rata, based on their respective Class Principal Balances, and among
the certificates of a Class in proportion to their respective Percentage
Interests.
(b) On each Distribution Date, Excess Losses and Extraordinary
Losses, other than the Class P Fraction of the Excess Loss, if applicable,
will be allocated pro rata among the Classes of Senior Certificates, other
than the Class X and Class P Certificates, and the Subordinate Certificates,
based on their respective Class Principal Balances, and among the Certificates
of a Class in proportion to their respective Percentage Interests. For
purposes of allocating any Excess Loss or Extraordinary Loss to any Accrual
Class on any Distribution Date, the applicable Class Principal Balance will be
equal to the lesser of its Class Principal Balance as of the Closing Date and
its Class Principal Balance as of that Distribution Date.
(c) With respect to any Realized Loss, including any Excess Loss and
Extraordinary Loss, on a Class P Mortgage Loan, the applicable Class P
Fraction of such loss will be allocated to the related Class P Certificates,
until the respective Class Principal Balance thereof is reduced to zero.
On each Distribution Date, if the aggregate Class Principal Balance
of all outstanding Classes of Certificates exceeds the aggregate Stated
Principal Balance of the Mortgage Loans (after giving effect to distributions
of principal and the allocation of all losses to the Certificates on that
Distribution Date), that excess will be deemed a principal loss and will be
allocated by reducing the Class Principal Balance of the Class of Subordinate
Certificates then outstanding with the lowest relative payment priority, until
the respective Class Principal Balance thereof is reduced to zero, and among
the Certificates of that Class in proportion to their respective Percentage
Interests.
Excess Losses and Extraordinary Losses will be allocated to all
Classes of Certificates (other than the Class P Certificates and the Notional
Amount Certificates), pro rata, according to, and in reduction of, their
respective Class Principal Balances (except if the loss is recognized with
respect to a Class P Mortgage Loan, in which case the applicable Class P
Fraction of such loss will be allocated to the relevant Class P Certificates
and the remainder will be allocated as described above); provided, however,
that in the case of the Accrual Certificates, on any Distribution Date, these
allocations will be made in accordance with the lesser of their respective
Class Principal Balances as of the Closing Date and their respective Class
Principal Balances as of that Distribution Date.
SECTION 4.03 Policy Matters.
(a) If, on the second Business Day before any Distribution Date, the
Trustee determines that the funds that will be available for such Distribution
Date distributable to the Holders of the Class III-A-1 Certificates pursuant
to Section 4.01 will be insufficient to pay the Insured Payment on such
Distribution Date, the Trustee shall determine the amount of any such
deficiency and shall give notice to MBIA and the Fiscal Agent, if any, by
telephone or telecopy of the amount of such deficiency, confirmed in writing
by notice substantially in the form of Exhibit A to the Class III-A-1 Policy
by 12:00 noon, New York City time, on such second Business Day. The Trustee's
responsibility for delivering the notice to MBIA, as provided in the preceding
sentence is limited to the availability, timeliness and accuracy of the
information provided by each Servicer.
(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 a Class
III-A-1 Certificate has been voided in whole or in part as a preference
payment under applicable bankruptcy law, the Trustee shall (i) promptly notify
MBIA and the Fiscal Agent, if any, and (ii) comply with the provisions of the
Class III-A-1 Policy to obtain payment by MBIA of such voided payment. In
addition, the Trustee shall mail notice to all Holders of the Class III-A-1
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 Class III-A-1 Policy a copy of which shall be made available
to such Holders by the Trustee. The Trustee shall furnish to MBIA and the
Fiscal Agent, if any, its records listing the payments on the affected Class
III-A-1 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 hereof, and for the purposes
hereof, the Trustee shall establish a separate special purpose trust account
in the name of the Trustee for the benefit of Holders of the Class III-A-1
Certificates (the "Class III-A-1 Policy Payments Account") over which the
Trustee shall have exclusive control and sole right of withdrawal. The Class
III-A-1 Policy Payments Account shall be an Eligible Account. The Trustee
shall deposit any amount paid under the Class III-A-1 Policy into the Class
III-A-1 Policy Payments Account and distribute such amount only for the
purposes of making the payments to Holders of the Class III-A-1 Certificates
in respect of the Insured Payment for which the related claim was made under
the Class III-A-1 Policy. Such amounts shall be allocated by the Trustee to
Holders of Class III-A-1 Certificates affected by such shortfalls in the same
manner as principal and interest payments are to be allocated with respect to
such Certificates pursuant to Section 4.01. It shall not be necessary for such
payments to be made by checks or wire transfers separated from the checks or
wire transfers used to make regular payments hereunder with funds withdrawn
from the Certificate Account. However, any payments made on the Class III-A-1
Certificates from funds in the Class III-A-1 Policy Payments Account shall be
noted as provided in subsection (e) below. Funds held in the Class III-A-1
Policy Payments Account shall not be invested by the Trustee.
(d) Any funds received from MBIA for deposit into the Class III-A-1
Policy Payments Account pursuant to the Class III-A-1 Policy in respect of a
Distribution Date or otherwise as a result of any claim under the Class
III-A-1 Policy shall be applied by the Trustee directly to the payment in full
(i) of the Insured Payment due on such Distribution Date on the Class III-A-1
Certificates, or (ii) of other amounts payable under the Class III-A-1 Policy.
Funds received by the Trustee as a result of any claim under the Class III-A-1
Policy shall be used solely for payment to the Holders of the Class III-A-1
Certificates and may not be applied for any other purpose, including, without
limitation, satisfaction of any costs, expenses or liabilities of the Trustee,
any Servicer or the Trust Fund. Any funds (other than funds deposited therein
in respect of a Preference Amount payable under the Class III-A-1 Policy)
remaining in the Class III-A-1 Policy Payments Account on the first Business
Day after each Distribution Date shall be remitted promptly to MBIA pursuant
to the written instruction of MBIA.
(e) The Trustee shall keep complete and accurate records in respect
of (i) all funds remitted to it by MBIA and deposited into the Class III-A-1
Policy Payments Account and (ii) the allocation of such funds to payments of
interest on and principal in respect of any Class III-A-1 Certificates. MBIA
shall have the right to inspect such records at reasonable times during normal
business hours upon three Business Days' prior notice to the Trustee.
(f) The Trustee acknowledges, and each Holder of a Class III-A-1
Certificate by its acceptance of the Class III-A-1 Certificate agrees, that,
without the need for any further action on the part of MBIA or the Trustee, to
the extent MBIA makes payments, directly or indirectly, on account of
principal of or interest on any Class III-A-1 Certificates, MBIA will be fully
subrogated to the rights of the Holders of such Class III-A-1 Certificates to
receive such principal and interest from the Trust Fund. The Holders of the
Class III-A-1 Certificates, by acceptance of the Class III-A-1 Certificates,
assign their rights as Holders of the Class III-A-1 Certificates to the extent
of MBIA's interest with respect to amounts paid under the Class III-A-1
Policy. Anything herein to the contrary notwithstanding, solely for purposes
of determining MBIA's rights, as applicable, as subrogee for payments
distributable pursuant to Section 4.01, any payment with respect to
distributions to the Class III-A-1 Certificates which is made with funds
received pursuant to the terms of the Class III-A-1 Policy, shall not be
considered payment of the Class III-A-1 Certificates from the Trust Fund and
shall not result in the distribution or the provision for the distribution in
reduction of the Class Principal Balance of the Class III-A-1 Certificates
except to the extent such payment has been reimbursed to MBIA pursuant to the
terms hereof.
(g) Upon a Responsible Officer of the Trustee becoming aware of the
occurrence of an Event of Default, the Trustee shall promptly notify MBIA of
such Event of Default.
(h) The Trustee shall promptly notify MBIA 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 United States 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 (a
"Preference Claim") of any distribution made with respect to the Class III-A-1
Certificates as to which it has actual knowledge. Each Holder of a Class
III-A-1 Certificate, by its purchase of Class III-A-1 Certificates, and the
Trustee hereby agrees that MBIA (so long as no MBIA Default exists) 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 any
Preference Claim and (ii) the posting of any surety, supersedeas or
performance bond pending any such appeal. In addition and without limitation
of the foregoing, MBIA shall be subrogated to the rights of the Trustee and
each Holder of a Class III-A-1 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.
(i) Each Servicer shall designate at least one MBIA Contact Person
who shall be available to MBIA to provide reasonable access to information
regarding the Mortgage Loans. The initial MBIA Contact Persons are the
Servicing Officers.
(j) The Trustee shall surrender the Class III-A-1 Policy to MBIA for
cancellation upon the reduction of the Class Principal Balance of the Class
III-A-1 Certificates to zero.
(k) The Trustee shall send to MBIA the reports prepared pursuant to
Sections 3.16 and 3.17 and the statements prepared pursuant to Section 4.04,
as well as any other statements or communications sent to Holders of the Class
A Certificates, in each case at the same time such reports, statements and
communications are otherwise sent.
(l) For so long as there is no continuing default by MBIA under its
obligations under the Class III-A-1 Policy (an "MBIA Default"), each Holder of
a Class III-A-1 Certificate agrees that MBIA shall be treated by the
Depositor, each Seller, each Servicer and the Trustee as if MBIA were the
Holder of all of the Class III-A-1 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
Holders of the Class III-A-1 Certificates hereunder and the holders of the
Class III-A-1 Certificates shall only exercise such rights with the prior
written consent of MBIA.
(m) With respect to this Section 4.03, (i) the terms "Receipt" and
"Received" shall mean actual delivery to MBIA and its Fiscal Agent, 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 and (ii)
"Business Day" means any day other than (A) a Saturday or Sunday or (B) a day
on which MBIA or banking institutions in the City of New York, New York, or
the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law or executive order to be closed. If any notice
or certificate given under the Class III-A-1 Policy 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. MBIA or its Fiscal Agent, if any, shall
promptly so advise the Trustee and the Trustee may submit an amended notice.
(n) All notices, statements, reports, certificates or opinions
required by this Agreement to be sent to the Trustee, the Rating Agencies or
the Class III-A-1 Certificateholders shall also be sent at such time to MBIA
at MBIA Insurance Corporation, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000,
Attention: Insured Portfolio Management - Structured Finance (IPM-SF) (Credit
Suisse First Boston Mortgage Securities Corp., Mortgage-Backed Pass-Through
Certificates, Series 2001-9).
(o) MBIA shall be an express third party beneficiary of this
Agreement for the purpose of enforcing the provisions hereof to the extent of
MBIA's rights explicitly specified herein as if a party hereto.
(p) All references herein to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the Class III-A-1 Policy.
(q) The Trustee and each Servicer shall cooperate with any
reasonable request by MBIA to preserve or enforce the rights granted to MBIA
hereunder.
(r) Any amendment to this Agreement shall require the prior written
consent of MBIA if such amendment could materially adversely affect the
interest of MBIA or of the Class III-A-1 Certificateholders.
SECTION 4.04 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and cause to be made available to each Certificateholder, each Servicer, the
Depositor, MBIA and each Rating Agency, a statement setting forth with respect
to the related distribution:
(i) the amount thereof allocable to principal, indicating the
portion thereof attributable to Scheduled Payments and Principal
Prepayments;
(ii) the amount thereof allocable to interest, indicating the
portion thereof attributable to any Carryforward Interest included in
such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest;
(iv) the Class Principal Balance of each Class of Certificates after
giving effect to the distribution of principal on such Distribution Date;
(v) the Aggregate Loan Balance and Aggregate Loan Group Balance for
each Loan Group, in each case, for the following Distribution Date;
(vi) the amount of the Servicing Fees and GEMICO PMI Fees, if
applicable, with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(ix) the number and aggregate principal amounts of Mortgage Loans in
foreclosure or delinquent (with a notation indicating which Mortgage
Loans, if any, are in foreclosure) (1) 31 to 60 days, (2) 61 to 90 days
and (4) 91 or more days, as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans
with respect to which Prepayment Premiums were collected and the
aggregate amount of such Prepayment Premiums;
(xi) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xii) the aggregate amount of Realized Losses incurred during the
preceding calendar month and aggregate Realized Losses through such
Distribution Date;
(xiii) the weighted average term to maturity of the Mortgage Loans
as of the close of business on the last day of the calendar month
preceding such Distribution Date; and
(xiv) the number and principal amount of claims submitted and claims
paid under the GEMICO PMI Policy during the preceding calendar month and
the number and principal amount of claims submitted and claims paid under
the GEMICO PMI Policy through such Distribution Date.
The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness and accuracy
of the information derived from each Servicer which shall be provided as
required in Section 4.05.
On each Distribution Date, the Trustee shall provide Bloomberg
Financial Markets, L.P. ("Bloomberg") Cusip Level Factors for each Class of
Offered Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Trustee and Bloomberg. In connection with providing
the information specified in this Section 4.04 to Bloomberg, the Trustee and
any director, officer, employee or agent of the Trustee shall be indemnified
and held harmless by DLJMC, to the extent, in the manner and subject to the
limitations provided in Section 9.05. The Trustee will also make the monthly
statements to Certificateholders available each month to each party referred
to in Section 4.04(a) via the Trustee's website. The Trustee's website can be
accessed at xxxx://xxx.xxx.xxxxxxx.xxx or at such other site as the Trustee
may designate from time to time. Persons that are unable to use the above
website are entitled to have a paper copy mailed to them via first class mail
by calling the Trustee at (0-000) 000-0000. The Trustee shall have the right
to change the way the reports referred to in this Section are distributed in
order to make such distribution more convenient and/or more accessible to the
above parties and to the Certificateholders. The Trustee shall provide timely
and adequate notification to all above parties and to the Certificateholders
regarding any such change. The Trustee may fully rely upon and shall have no
liability with respect to information provided by any Servicer.
(b) Upon request, within a reasonable period of time after the end
of each calendar year, the Trustee shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and (a)(vi) of
this Section 4.04 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code as from time to time in effect.
SECTION 4.05 Servicer to Cooperate.
Each Servicer shall provide to the Trustee the information set forth
in Exhibit F in such form as the Trustee shall reasonably request with respect
to each Mortgage Loan serviced by such Servicer no later than twelve noon five
Business Days before the related Distribution Date necessary to enable the
Trustee to perform its distribution, accounting and reporting requirements
hereunder. Notwithstanding the foregoing, nothing in this Section 4.05 shall
require any Servicer to collect, create, collate or otherwise generate any
information that it does not generate in its usual course of business.
SECTION 4.06 Cross-Collateralization; Adjustments to Available Funds
(a) On each Distribution Date prior to the Credit Support Depletion
Date, but after the date on which the aggregate Class Principal Balance of any
Group I, Group II or Group III Certificates has been reduced to zero, the
Trustee shall distribute the principal portion of Available Distribution
Amount on the Mortgage Loans relating to such Loan Group that will have been
paid in full, to the holders of the Class A Certificates of the other
Certificate Groups, pro rata, based on Class Principal Balances, provided,
however, that the Trustee shall not make such distribution on such
Distribution Date if (a) the Subordinate Percentage for such Distribution Date
is greater than or equal to 200% of such Subordinate Percentage as of the
Closing Date and (b) the average outstanding principal balance of the Mortgage
Loans in each Loan Group delinquent 60 days or more over the last six months,
as a percentage of the related Subordinate Component Balance, is less than
50%.
(b) If on any Distribution Date the aggregate Class Principal
Balance of the Class A Certificates in a Certificate Group is greater than the
aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group (the "Undercollateralized Group"), then the following will occur:
(1) the Available Distribution Amount in the other Groups,
that are not Undercollateralized Groups (the
"Overcollateralized Groups") will be reduced, after
distributions of interest to the Class A Certificates of
the Overcollateralized Groups, in an amount equal to one
month's interest on the Principal Transfer Amount of each
Undercollateralized Group at the Pass-Through Rate
applicable to the Undercollateralized Group or
Undercollateralized Groups and that amount will be added
to the Available Distribution Amount of the applicable
Undercollateralized Group; and
(2) the portion of the Available Distribution Amount in
respect of principal on the Mortgage Loans in the
Overcollateralized Groups, after distributions of
principal to the Class A Certificates of the
Overcollateralized Groups, will be distributed to the
Class A Certificates of each Undercollateralized Group
until the Class Principal Balance of the Class A
Certificates of that Undercollateralized Group equals the
aggregate Stated Principal Balance of the Mortgage Loans
in the related group.
(c) If more than one Overcollateralized Group exists on any
Distribution Date, reductions in the Available Distribution Amount of such
groups to make the payments required to be made pursuant to Section 4.06(a) on
such Distribution Date shall be made pro rata, based on the amount of payments
required to be made to the Undercollateralized Group. The applicable
Pass-through Rate for Group I, Group II and Group III is 7.25%, 8.25% and
7.54%, respectively.
ARTICLE V
ADVANCES BY A SERVICER
SECTION 5.01 Advances by a Servicer.
Each Servicer shall deposit in the Collection Account an amount
equal to all Scheduled Payments (with interest at the Mortgage Rate less the
Servicing Fee Rate) which were due on the related Mortgage Loans during the
applicable Collection Period and which were delinquent at the close of
business on the immediately preceding Determination Date; 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 5.01 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 plus one month's interest on the
outstanding principal balance at the applicable Mortgage Rate less the
applicable 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 a Servicer determines, in
its reasonable opinion, that Advances with respect to such Mortgage Loan are
Nonrecoverable Advances. In the event that such Servicer determines that any
such advances are Nonrecoverable Advances, such Servicer shall provide the
Trustee and MBIA 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 Business Day immediately preceding the Distribution Date
immediately following the related Determination Date either (i) deposit in the
Collection Account from its own funds an amount equal to such Advance, (ii)
cause to be made an appropriate entry in the records of the Collection Account
that funds in such account being held for future distribution or withdrawal
have been, as permitted by this Section 5.01, used by such Servicer to make
such Advance or (iii) make Advances in the form of any combination of clauses
(i) and (ii) aggregating the amount of such Advance. Any such funds being held
in a Collection Account for future distribution and so used shall be replaced
by such Servicer from its own funds by deposit in such Collection Account on
or before any future Distribution Date in which such funds would be due.
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.
The Certificates shall be in substantially the forms set forth in
Exhibits A, B, C, D and E hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by a Responsible Officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication executed by the Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
Distributions will be made to the Person in whose name a 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 such
Certificate and the amount required to be distributed to Holders of
Certificates of the Class to which such Certificate belongs on such
Distribution Date.
Distributions will be made by check mailed by first class mail to
the address of the Certificateholders appearing in the Certificate Register.
Any Holder who holds 100% of a class of Certificates or who holds Certificates
with an aggregate initial certificate balance or notional balance of
$1,000,000 or more may elect to have distributions made to such Holder by wire
transfer of immediately available funds to the account of such Holder at a
bank or other entity having appropriate facilities therefor, provided that
such Holder notifies the Trustee in writing at least five Business Days prior
to the related Record Date.
SECTION 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained, a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trustee shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. Upon
surrender for registration of transfer of any Certificate, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in like aggregate interest and of
the same Class.
(b) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of authorized denominations and the same
aggregate interest in the Trust Fund and of the same Class, upon surrender of
the Certificates to be exchanged at the office or agency of the Trustee set
forth in Section 9.11. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing.
(c) No service charge to the Certificateholders shall be made for
any registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
(d) All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(e) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. Except in connection with any transfer of a
Private Certificate by the Depositor to any affiliate, in the event that a
transfer is to be made in reliance upon an exemption from the 1933 Act and
such laws, in order to assure compliance with the 1933 Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit L (the "Transferor Certificate") and (i) deliver a letter in
substantially the form of either Exhibit M-1 (the "Investment Letter") or
Exhibit M-2 (the "Rule 144A Letter") or (ii) there shall be delivered to the
Trustee at the expense of the transferor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the 1933 Act. The Depositor
shall provide to any Holder of a Private Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Certificate without registration thereof under the
1933 Act pursuant to the registration exemption provided by Rule 144A. The
Trustee shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
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, each Seller and each Servicer
against any liability that may result if the transfer is not so exempt or is
not made in accordance with such federal and state laws.
(f) No transfer of an ERISA-Restricted Certificate shall be made to
any employee benefit or other plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Code, to a trustee or other person acting on behalf of any such plan, or to
any other person using "plan assets" to effect such acquisition, unless the
prospective transferee of a Certificate provides the Trustee with (i) in the
case of an ERISA-Restricted Certificate that has been the subject of an
ERISA-Qualifying Underwriting, a certification as set forth in paragraph (d)
of Exhibit M1 or Exhibit M2 or paragraph (15) of Exhibit N; or (ii) an Opinion
of Counsel which establishes to the reasonable satisfaction of the Depositor
and the Trustee that the purchase and holding of an ERISA-Restricted
Certificate by, on behalf of or with "plan assets" of such plan is permissible
under applicable local law, would not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and would
not subject the Depositor or the Trustee to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in this Agreement or any other liability. The Trustee shall
require that such prospective transferee certify to the Trustee in writing the
facts establishing that such transferee is not such a plan and is not acting
on behalf of or using "plan assets" of any such plan to effect such
acquisition.
(g) Additional restrictions on transfers of the Class AR
Certificates to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership interest in a
Class AR Certificate shall be deemed by the acceptance or acquisition of
such ownership interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee or its designee
under clause (iii)(A) below to deliver payments to a Person other than
such Person and to negotiate the terms of any mandatory sale under clause
(iii)(B) below and to execute all instruments of transfer and to do all
other things necessary in connection with any such sale. The rights of
each Person acquiring any ownership interest in a Class AR Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any ownership
interest in a Class AR Certificate shall be other than a
Disqualified Organization and shall promptly notify the Trustee
of any change or impending change in its status as other than a
Disqualified Organization.
(B) In connection with any proposed transfer of any
ownership interest in a Class AR Certificate to a U.S. Person,
the Trustee shall require delivery to it, and shall not
register the transfer of a Class AR Certificate until its
receipt of (1) an affidavit and agreement (a "Transferee
Affidavit and Agreement" attached hereto as Exhibit N) from the
proposed transferee, in form and substance satisfactory to the
Trustee, representing and warranting, among other things, that
it is not a non-U.S. Person, that such transferee is other than
a Disqualified Organization, that it is not acquiring its
ownership interest in a Class AR Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent
for any Person who is not other than a Disqualified
Organization, that for so long as it retains its ownership
interest in a Class AR Certificate, it will endeavor to remain
other than a Disqualified Organization, and that it has
reviewed the provisions of this Section 6.02(g) and agrees to
be bound by them, and (2) a certificate, attached hereto as
Exhibit O, from the Holder wishing to transfer a Class AR
Certificate, in form and substance satisfactory to the Trustee,
representing and warranting, among other things, that no
purpose of the proposed transfer is to allow such Holder to
impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit
and Agreement by a proposed transferee under clause (B) above,
if the Trustee has actual knowledge that the proposed
transferee is not other than a Disqualified Organization, no
transfer of an ownership interest in a Class AR Certificate to
such proposed transferee shall be effected.
(D) Each Person holding or acquiring any ownership
interest in a Class AR Certificate agrees, by holding or
acquiring such ownership interest, to require a Transferee
Affidavit and Agreement from the other Person to whom such
Person attempts to transfer its ownership interest and to
provide a certificate to the Trustee in the form attached
hereto as Exhibit O.
(ii) The Trustee shall register the transfer of any Class AR
Certificate only if it shall have received the Transferee Affidavit and
Agreement, a certificate of the Holder requesting such transfer in the
form attached hereto as Exhibit O and all of such other documents as
shall have been reasonably required by the Trustee as a condition to such
registration.
(iii) (A) If any Disqualified Organization shall become a Holder of
a Class AR Certificate, then the last preceding Holder that was other
than a Disqualified Organization shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such Class AR
Certificate. If any non-U.S. Person shall become a Holder of a Class AR
Certificate, then the last preceding Holder that is a U.S. Person shall
be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of
the transfer to such non-U.S. Person of such Class AR Certificate. If a
transfer of a Class AR Certificate is disregarded pursuant to the
provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Holder that was other than a Disqualified
Organization shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date of
registration of such transfer of such Class AR Certificate. The Trustee
shall be under no liability to any Person for any registration of
transfer of a Class AR Certificate that is in fact not permitted by this
Section 6.02(g) or for making any payments due on such Certificate to the
Holder thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement.
(B) If any purported transferee of a Class AR Certificate
shall become a Holder of a Class AR Certificate in violation of
the restrictions in this Section 6.02(g) and to the extent that
the retroactive restoration of the rights of the Holder of such
Class AR Certificate as described in clause (iii)(A) above
shall be invalid, illegal or unenforceable, then the Depositor
shall have the right, without notice to the Holder or any prior
Holder of such Class AR Certificate, to sell such Class AR
Certificate to a purchaser selected by the Depositor on such
terms as the Depositor may choose. Such purported transferee
shall promptly endorse and deliver a Class AR Certificate in
accordance with the instructions of the Depositor. Such
purchaser may be the Depositor itself or any affiliate of the
Depositor. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Depositor or its
affiliates), expenses and taxes due, if any, shall be remitted
by the Depositor to such purported transferee. The terms and
conditions of any sale under this clause (iii)(B) shall be
determined in the sole discretion of the Depositor, and the
Depositor shall not be liable to any Person having an ownership
interest or a purported ownership interest in a Class AR
Certificate as a result of its exercise of such discretion.
(iv) Each Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, all information
reasonably available to it that is necessary to compute any tax
imposed (A) as a result of the transfer of an ownership interest in
a Class AR Certificate to any Person who is not other than a
Disqualified Organization, including the information regarding
"excess inclusions" of such Residual Certificate required to be
provided to the Internal Revenue Service and certain Persons as
described in Treasury Regulation Section 1.860D-1(b)(5), and (B) as
a result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or
organizations described in Section 1381 of the Code having as among
its record holders at any time any Person who is not other than a
Disqualified Organization. Reasonable compensation for providing
such information may be required by the Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior to
this Section (v) may be modified, added to or eliminated by the
Depositor, provided that there shall have been delivered to the
Trustee the following:
(A) written notification from each Rating Agency to the
effect that the modification, addition to or elimination of
such provisions will not cause such Rating Agency to downgrade
its then-current rating of the Certificates (determined without
regard to the Class III-A-1 Policy); and
(B) a certificate of the Depositor stating that the
Depositor has received an Opinion of Counsel, in form and
substance satisfactory to the Depositor, to the effect that
such modification, addition to or elimination of such
provisions will not cause the Trust Fund to cease to qualify as
a REMIC and will not create a risk that (i) the Trust Fund may
be subject to an entity-level tax caused by the transfer of a
Class AR Certificate to a Person which is not other than a
Disqualified Organization or (2) a Certificateholder or another
Person will be subject to a REMIC-related tax caused by the
transfer of applicable Class AR Certificate to a Person which
is not other than a Disqualified Organization.
(vi) The following legend shall appear on each Class AR
Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A
TRANSFER AFFIDAVIT TO THE Servicer AND THE TRUSTEE THAT (1)
SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY
OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS
SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION
511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED
TO AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF
A DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH
TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT
OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN
REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS AR CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THE CLASS AR CERTIFICATE BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
(h) The Trustee shall have no liability to the Trust Fund arising
from a transfer of any such Certificate in reliance upon a certification,
ruling or Opinion of Counsel described in this Section 6.02; provided,
however, that the Trustee shall not register the transfer of any Class AR
Certificate if it has actual knowledge that the proposed transferee does not
meet the qualifications of a permitted Holder of a Class AR Certificate as set
forth in this Section 6.02.
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to each Servicer and the
Trustee (and with respect to the Class III-A-1 Certificates, MBIA) such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
interest in the Trust Fund. In connection with the issuance of any new
Certificate under this Section 6.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 6.03 shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, each Servicer, the Trustee, MBIA and any agent of any Servicer, the
Trustee or MBIA 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, MBIA nor any agent of a
Servicer, the Trustee or MBIA shall be affected by any notice to the contrary.
SECTION 6.05 Access to List of Certificateholders' Names and
Addresses.
(a) If three or more Certificateholders (i) request in writing from
the Trustee a list of the names and addresses of Certificateholders, (ii)
state that such Certificateholders desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and (iii) provide a copy of the communication which such
Certificateholders propose to transmit, then the Trustee shall, within ten
Business Days after the receipt of such request, afford such
Certificateholders access during normal business hours to a current list of
the Certificateholders. The expense of providing any such information
requested by a Certificateholder shall be borne by the Certificateholders
requesting such information and shall not be borne by the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
(b) Each Servicer, so long as it is a servicer hereunder, the
Sellers and the Depositor shall have unlimited access to a list of the names
and addresses of the Certificateholders which list shall be provided by the
Trustee promptly upon request.
SECTION 6.06 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense
an office or offices or agency or agencies in New York City where Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustee in respect of the Certificates and this
Agreement may be served. The Trustee initially designates the Corporate Trust
Office as its office for such purpose. The Trustee will give prompt written
notice to the Certificateholders and MBIA of any change in the location of any
such office or agency.
SECTION 6.07 Book-Entry Certificates.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder will receive a definitive
certificate representing such Beneficial Holder's interest in the
Certificates, except as provided in Section 6.09. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Beneficial Holders pursuant to Section 6.09:
(a) the provisions of this Section 6.07 shall be in full force and
effect with respect to the Book-Entry Certificates;
(b) the Depositor and the Trustee may deal with the Clearing Agency
for all purposes with respect to the Book-Entry Certificates (including the
making of distributions on such Certificates) as the sole Holder of such
Certificates;
(c) to the extent that the provisions of this Section 6.07 conflict
with any other provisions of this Agreement, the provisions of this Section
6.07 shall control; and
(d) the rights of the Beneficial Holders of the Book-Entry
Certificates shall be exercised only through the Clearing Agency and the
Participants and shall be limited to those established by law and agreements
between such Beneficial Holders and the Clearing Agency and/or the
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.09, the initial
Clearing Agency will make book-entry transfers among the Participants and
receive and transmit distributions of principal and interest on the related
Book-Entry Certificates to such Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Book-Entry Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of such Certificates, such direction or consent may be
given by the Clearing Agency at the direction of Beneficial Holders owning
such Certificates evidencing the requisite percentage of principal amount of
such Certificates. The Clearing Agency may take conflicting actions with
respect to the Book-Entry Certificates to the extent that such actions are
taken on behalf of the Beneficial Holders.
SECTION 6.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of Book-Entry
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to the related Certificateholders pursuant
to Section 6.09, the Trustee shall give all such notices and communications
specified herein to be given to Holders of the Book-Entry Certificates to the
Clearing Agency which shall give such notices and communications to the
related Participants in accordance with its applicable rules, regulations and
procedures.
SECTION 6.09 Definitive Certificates.
If (a) the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities under the Depository Agreement with respect to the
Certificates and the Trustee or the Depositor is unable to locate a qualified
successor, (b) the Depositor, at its option, advises the Trustee in writing
that it elects to terminate the book-entry system with respect to the
Book-Entry Certificates through the Clearing Agency or (c) after the
occurrence of an Event of Default, Holders of Book-Entry Certificates
evidencing not less than 66K% of the aggregate Class Principal Balance of
the Book-Entry Certificates advise the Trustee in writing that the
continuation of a book-entry system with respect to the such Certificates
through the Clearing Agency is no longer in the best interests of the Holders
of such Certificates with respect to the Book-Entry Certificates, the Trustee
shall notify all Holders of such Certificates of the occurrence of any such
event and the availability of Definitive Certificates. Upon surrender to the
Trustee of the such Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the
Trustee shall authenticate and deliver the Definitive Certificates. Neither
the Depositor nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates
all references herein to obligations imposed upon or to be performed by the
Clearing Agency shall be deemed to be imposed upon and performed by the
Trustee, to the extent applicable with respect to such Definitive
Certificates, and the Trustee shall recognize the Holders of Definitive
Certificates as Certificateholders hereunder.
ARTICLE VII
THE DEPOSITOR, THE SELLERS AND THE SERVICERS
SECTION 7.01 Liabilities of the Sellers, the Depositor and the
Servicers.
The Depositor, any Seller and any Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
SECTION 7.02 Merger or Consolidation of the Depositor, the Sellers,
or the Servicers.
Subject to the immediately succeeding paragraph, the Depositor, any
Seller and any Servicer will each do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights and
franchises (charter and statutory) and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor, any Seller or any Servicer may
be merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor, any Seller or any Servicer shall be a
party, or any Person succeeding to the business of the Depositor, any Seller
or any Servicer, shall be the successor of the Depositor, such Seller or such
Servicer, as the case may be, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person to any such Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, FNMA or FHLMC.
Notwithstanding anything else in this Section 7.02 or in Section
7.04 hereof to the contrary, a Servicer may assign its rights and delegate its
duties and obligations under this Agreement (except for the obligation of the
Servicers or Sellers to effectuate repurchases or substitutions of Mortgage
Loans hereunder, including pursuant to Section 2.01, 2.02 or 2.03 hereof,
which shall remain with the related Seller or Servicer hereunder); provided,
however, that such Servicer gives the Depositor and the Trustee notice of such
assignment; and provided further, that such purchaser or transferee accepting
such assignment and delegation shall be an institution that is a FNMA and
FHLMC approved seller/servicer in good standing, which has a net worth of at
least $15,000,000, and which is willing to service the Mortgage Loans and
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, which contains an assumption by such Person of
the rights, powers, duties, responsibilities, obligations and liabilities of
such Servicer, with like effect as if originally named as a party to this
Agreement; and provided further, that each of the Rating Agencies acknowledge
that its rating of the Certificates (determined without regard to the Class
III-A-1 Policy) in effect immediately prior to such assignment will not be
qualified or reduced as a result of such assignment and delegation. In the
case of any such assignment and delegation, such Servicer shall be released
from its obligations under this Agreement (except as provided above), except
that the Servicer shall remain liable for all liabilities and obligations
incurred by it as Servicer hereunder prior to the satisfaction of the
conditions to such assignment and delegation set forth in the preceding
sentence.
SECTION 7.03 Limitation on Liability of the Depositor, the Sellers,
and the Servicers and Others.
Neither the Depositor, any Servicer, any Seller nor any of the
directors, officers, employees or agents of the Depositor, any Servicer or any
Seller shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, any Servicer or any Seller against
any breach of representations or warranties made by it herein or protect the
Depositor, any Servicer or any Seller or any such director, officer, employee
or agent from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor, any Servicer, any Seller and any director, officer, employee or
agent of the Depositor, any Servicer or any Seller may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, any Servicer,
any Seller and any director, officer, employee or agent of the Depositor, any
Servicer or any Seller shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with
any legal action relating to this Agreement or the Certificates, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. None of the
Depositor, any Servicer or any Seller shall be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to their
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Depositor, any Servicer or
any Seller may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties
of the parties hereto and interests of the Trustee and the Certificateholders
hereunder.
SECTION 7.04 Servicer Not to Resign; Transfer of Servicing.
(a) A Servicer shall not resign from the obligations and duties
hereby imposed on it except (i) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates (without regard to the Class III-A-1 Policy), or (ii)
upon determination that its duties hereunder are no longer permissible under
applicable law. Any such determination under clause (ii) permitting the
resignation of a Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee and MBIA. No such resignation shall become
effective until the successor servicer shall have assumed such Servicer's
responsibilities, duties, liabilities and obligations hereunder in accordance
with Section 8.02 hereof.
(b) Notwithstanding the foregoing, DLJ Mortgage Capital, Inc. or its
transferee shall be entitled to request that a Servicer, other than WMMSC,
resign and appoint a successor servicer; provided that such entity delivers to
the Trustee the letter required in Section 7.04(a)(i) above.
No such resignation shall become effective until the successor
servicer shall have assumed such Servicer's responsibilities, duties,
liabilities and obligations hereunder in accordance with Section 8.02 hereof.
SECTION 7.05 Sellers and Servicers May Own Certificates.
Each of the Sellers and Servicers in its individual or any other
capacity may become the owner or pledgee of Certificates with the same rights
as it would have if it were not a Seller or the Servicer.
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default.
"Event of Default", wherever used herein, and as to each Servicer,
means any one of the following events (whatever reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) any failure by the Servicer to remit to the Certificateholders
or to the Trustee any payment other than an Advance required to be made by the
Servicer under the terms of this Agreement, which failure shall continue
unremedied for a period of one Business Day after the date upon which written
notice of such failure shall have been given to the Servicer by the Trustee or
the Depositor or to the Servicer and the Trustee by the Holders of
Certificates having not less than 25% of the Voting Rights evidenced by the
Certificates; or
(b) any failure by the Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer contained in this Agreement (except as set forth in (c) and (g)
below) which failure (i) materially affects the rights of the
Certificateholders and (ii) shall continue unremedied for a period of 60 days
after the date on which written notice of such failure shall have been given
to the Servicer by the Trustee or the Depositor, or to the Servicer and the
Trustee by the Holders of Certificates evidencing not less than 25% of the
Voting Rights evidenced by the Certificates; or
(c) if a representation or warranty set forth in Section 2.03 hereof
made solely in its capacity as a Servicer shall prove to be materially
incorrect as of the time made in any respect that materially and adversely
affects interests of the Certificateholders, and the circumstances or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 90 days after the date on which
written notice thereof shall have been given to the Servicer and Sellers by
the Trustee for the benefit of the Certificateholders or by the Depositor; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for
a period of 60 days; or
(e) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the
Servicer or all or substantially all of the property of the Servicer; or
(f) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(g) any failure of the Servicer to make any Advance in the manner
and at the time required to be made from its own funds pursuant to this
Agreement and after receipt of notice from the Trustee pursuant to Section
5.01, which failure continues unremedied after 5 p.m., New York City time, on
the Business Day immediately following the Servicer's receipt of such notice.
If an Event of Default due to the actions or inaction of a Servicer
described in clauses (a) through (f) of this Section shall occur, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Trustee shall at the direction of the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates, by notice in writing to such Servicer (with a copy to the Rating
Agencies and MBIA), terminate all of the rights and obligations of such
Servicer under this Agreement (other than rights to reimbursement for Advances
and Servicing Advances previously made, as provided in Section 3.08).
If an Event of Default described in clause (g) shall occur, the
Trustee shall, prior to the next Distribution Date, terminate the rights and
obligations of the applicable Servicer hereunder and succeed to the rights and
obligations of such Servicer hereunder pursuant to Section 8.02, including the
obligation to make Advances on such Distribution Date pursuant to the terms
hereof. No Event of Default with respect to a Servicer shall affect the rights
or duties of any other Servicer, or constitute an Event of Default as to any
other Servicer.
SECTION 8.02 Trustee to Act; Appointment of Successor.
On and after the time a Servicer receives a notice of termination
pursuant to Section 8.01 hereof or resigns pursuant to Section 7.04 hereof,
subject to the provisions of Section 3.04 hereof, the Trustee shall be the
successor in all respects to such Servicer in its capacity as servicer under
this Agreement and with respect to the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on such Servicer by the terms and
provisions hereof, provided that the Trustee shall not be deemed to have made
any representation or warranty as to any Mortgage Loan made by any Servicer
and shall not effect any repurchases or substitutions of any Mortgage Loan. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the related Servicer would have been entitled to
charge to the related Collection Account if such Servicer had continued to act
hereunder (except that the terminated or resigning Servicer shall retain the
right to be reimbursed for advances (including, without limitation, Advances
and Servicing Advances) theretofore made by the Servicer with respect to which
it would be entitled to be reimbursed as provided in Section 3.08 if it had
not been so terminated or resigned as Servicer). Notwithstanding the
foregoing, if the Trustee has become the successor to a Servicer in accordance
with this Section 8.02, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act (exclusive of the obligations with respect
to Advances), appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution, the appointment
of which does not adversely affect the then current rating of the
Certificates, as the successor to a Servicer hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of such
Servicer, provided that such successor to the Servicer shall not be deemed to
have made any representation or warranty as to any Mortgage Loan made by the
related Servicer. Pending appointment of a successor to a Servicer hereunder,
the Trustee, unless the Trustee is prohibited by law from so acting, shall act
in such capacity as provided herein. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess
of that permitted the related Servicer hereunder. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
successor servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by the failure of the applicable Servicer to deliver,
or any delay in delivering, cash, documents or records to it.
A Servicer that has been terminated shall, at the request of the
Trustee but at the expense of such Servicer, deliver to the assuming party all
documents and records relating to each Sub-Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use commercially reasonable efforts to effect the orderly and
efficient transfer of each Sub-Servicing Agreement, but only to the extent of
the Mortgage Loans serviced thereunder, to the assuming party.
Each Servicer shall cooperate with the Trustee and any successor
servicer in effecting the termination of the terminated Servicer's
responsibilities and rights hereunder, including without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by such Servicer to the applicable Collection
Account or thereafter received with respect to the Mortgage Loans.
Neither the Trustee nor any other successor servicer shall be deemed
to be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (a) the
failure of any Servicer to (i) deliver, or any delay in delivering, cash,
documents or records to it, (ii) cooperate as required by this Agreement, or
(iii) deliver the Mortgage Loan to the Trustee as required by this Agreement,
or (b) restrictions imposed by any regulatory authority having jurisdiction
over the related Servicer.
Any successor to a Servicer as servicer shall during the term of its
service as servicer maintain in force the policy or policies that such
Servicer is required to maintain pursuant to Section 3.18 hereof.
SECTION 8.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to any
Servicer, the Trustee shall give prompt written notice thereof to the Sellers,
MBIA and the Certificateholders at their respective addresses appearing in the
Certificate Register and to the Rating Agencies.
(b) Within two Business Days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to the Sellers and all
Certificateholders, MBIA and the Rating Agencies notice of each such Event of
Default hereunder known to the Trustee, unless such Event of Default shall
have been cured or waived.
SECTION 8.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (g) of Section 8.01 may be waived, only by all of the
Holders of Certificates affected by such default or Event of Default and (b)
no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 11.01(b)(i), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been cured and remedied for
every purpose hereunder. No such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon
except to the extent expressly so waived.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
undertakes with respect to the Trust Fund to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. Any
permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee shall
have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct, its negligent failure to perform its obligations
in compliance with this Agreement, or any liability which would be imposed by
reason of its willful misfeasance or bad faith; provided, however, that:
(a) prior to the occurrence of an Event of
Default, and after the curing or of all such Events of Default that
may have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be personally liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement which it reasonably believed in good faith to be genuine
and to have been duly executed by the proper authorities respecting
any matters arising hereunder;
(b) the Trustee shall not be personally
liable for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless the Trustee
was negligent in ascertaining or investigating the pertinent facts;
(c) the Trustee shall not be personally
liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of the
Holders of Certificates evidencing not less than 25% of the Voting
Rights allocated to each Class of Certificates relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(d) no provision of this Agreement shall
require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Except with respect to an Event of Default described in clause (a)
of Section 8.01, the Trustee shall not be deemed to have knowledge of any
Event of Default or event which, with notice or lapse of time, or both, would
become an Event of Default, unless a Responsible Officer of the Trustee shall
have received written notice thereof from a Servicer, the Depositor, or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Servicer
upon receipt of any such complaint, claim, demand, notice or other document
(i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of
which a Responsible Officer has actual knowledge, and (iii) which contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property.
SECTION 9.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01:
(i) the Trustee may request and rely upon and shall
be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors, Servicing Officers or
any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee may consult with counsel, financial
advisors or accountants and any advice of such Persons or Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Agreement
or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders or MBIA pursuant to the provisions of this
Agreement, unless such Certificateholders or MBIA shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
been cured or waived), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care
and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all Events of Default
that may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by MBIA or Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity against
such expense or liability as a condition to taking any such action;
the reasonable expense of every such investigation shall be paid by
the applicable Servicer in the event that such investigation relates
to an Event of Default by such Servicer, if an Event of Default by
such Servicer shall have occurred and is continuing, and otherwise by
MBIA or the Certificateholders requesting the investigation;
(vi) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care;
(vii) the Trustee shall not be required to expend its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it; and
(viii) the Trustee shall not be liable for any loss on
any investment of funds pursuant to this Agreement except as provided
in Section 3.05(e).
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or a Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Agreement, the Certificates or of any
Mortgage Loan or related document. The Trustee shall not be accountable for
the use or application by the Depositor, the Sellers or the Servicers of any
funds paid to the Depositor or any Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from the Certificate Account by the Depositor,
the Sellers or the Servicers.
SECTION 9.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights as it would
have if it were not the Trustee.
SECTION 9.05 Trustee's Fees and Expenses.
The Trustee shall pay to itself on each Distribution Date from
amounts on deposit in the Certificate Account, an amount equal to the Trustee
Fee in accordance with Section 4.01(b). The Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified by the Depositor and
held harmless against any loss, liability or expense (including reasonable
attorney's fees and expenses) (i) incurred in connection with any claim or
legal action relating to (a) this Agreement, (b) the Certificates, or (c) the
performance of any of the Trustee's duties hereunder, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of the Trustee's duties hereunder 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 a Servicer. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trustee hereunder. Without
limiting the foregoing, the Depositor covenants and agrees, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any such expense, disbursement or advance as may arise from the Trustee's
negligence, bad faith or willful misconduct, to pay or reimburse the Trustee,
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage such persons to perform
acts or services hereunder and (C) printing and engraving expenses in
connection with preparing any Definitive Certificates. Except as otherwise
provided herein, the Trustee shall not be entitled to payment or reimbursement
for any routine ongoing expenses incurred by the Trustee in the ordinary
course of its duties as Trustee, Registrar, Tax Matters Person or Paying Agent
hereunder or for any other expenses.
SECTION 9.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association having its principal office in a state and city acceptable to the
Depositor and organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having ratings on its long-term debt obligations at the time of
such appointment in at least the third highest rating category by each of S&P,
Xxxxx'x and Fitch or such lower ratings as will not cause S&P, Xxxxx'x or
Fitch to lower their then-current ratings of the Class A Certificates
(determined without regard to the Class III-A-1 Policy), having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 9.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.07 hereof.
SECTION 9.07 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (a) giving written notice of resignation to the Depositor,
the Sellers, the Servicers and MBIA and by mailing notice of resignation by
first class mail, postage prepaid, to the Certificateholders at their
addresses appearing on the Certificate Register, and to the Rating Agencies,
not less than 60 days before the date specified in such notice when, subject
to Section 9.08, such resignation is to take effect, and (b) acceptance by a
successor trustee in accordance with Section 9.08 meeting the qualifications
set forth in Section 9.06.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation or if
the Trustee breaches any of its obligations or representations hereunder, then
the Depositor may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee and one copy to the successor trustee. The Trustee
may also be removed at any time by the Holders of Certificates evidencing not
less than 50% of the Voting Rights evidenced by the Certificates. Notice of
any removal of the Trustee and acceptance of appointment by the successor
trustee shall be given to the Rating Agencies and MBIA by the Depositor.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for the
appointment of a successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.08 hereof.
SECTION 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, upon receipt of all amounts due it hereunder, and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 9.06 hereof and its
acceptance shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown
in the Certificate Register. If the Depositor fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 9.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 9.06 hereof without the execution or filing of any paper
or further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicers and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the applicable Certificateholders, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this
Section 9.10, such powers, duties, obligations, rights and trusts as the
Servicers and the Trustee may consider necessary or desirable. If the
Servicers shall not have joined in such appointment within fifteen days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
9.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 9.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for any obligation of the Trustee under this
Agreement to advance funds on behalf of the Servicer, shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed by the Trustee (whether
as Trustee hereunder or as successor to the Servicer), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) no trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder; and
(c) the Servicers and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Servicers and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 9.11 Office of the Trustee.
The office of the Trustee for purposes of receipt of notices and
demands is the Corporate Trust Office.
SECTION 9.12 Tax Return.
Each Servicer, upon request, will furnish the Trustee with all such
information in the possession of such Servicer as may be reasonably required
in connection with the preparation by the Trustee of all tax and information
returns of the Trust Fund, and the Trustee shall sign such returns. Each
Servicer shall indemnify the Trustee for all reasonable costs, including legal
fees and expenses, related to errors in such tax returns due to errors only in
information provided by such Servicer.
SECTION 9.13 Periodic Filings.
The Trustee shall, on behalf of the Trust, cause to be filed with
the Securities and Exchange Commission any periodic reports required to be
filed under the provisions of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
thereunder. In connection with the preparation and filing of such periodic
reports, the Depositor and each Servicer shall timely provide to the Trustee
all material information requested by the Trustee and reasonably available to
them which is required to be included in such reports. The Trustee shall have
no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct.
SECTION 9.14 Determination of LIBOR.
On each Interest Determination Date, the Trustee shall determine the
LIBOR for the Accrual Period and inform each Servicer of such rate.
ARTICLE X
TERMINATION
SECTION 10.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans.
The obligations and responsibilities of the Servicers, the Sellers,
the Depositor and the Trustee created hereby with respect to the Trust Fund
created hereby shall terminate upon the earlier of:
(a) the repurchase by MLS at its election,
of all Mortgage Loans and all property acquired in respect of any
Mortgage Loans remaining, which repurchase right MLS may exercise at
its sole and exclusive election as of any Distribution Date (such
applicable Distribution Date being herein referred to as the
"Optional Termination Date") on or after the date on which the
aggregate Principal Balance of the Mortgage Loans at the time of the
repurchase is less than 10% of the Aggregate Principal Balance of the
Mortgage Loans as of the Cut-off Date; and
(b) the later of (i) twelve months after the
maturity of the last Mortgage Loan remaining in the Trust Fund, (ii)
the liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property and (iii) the distribution to Certificateholders of all
amounts required to be distributed to them pursuant to this
Agreement.
In no event shall the trust created hereby continue beyond the earlier of (1)
the expiration of 21 years from the death of the last survivor of the
descendants of Xx. Xxxxxx X. Xxxxxxx, former Ambassador of the United States
to Great Britain, living on the date of execution of this Agreement or (ii)
the Distribution Date in April, 2031.
The purchase price for any such Optional Termination shall be equal
to the sum of (i) 100% of the Stated Principal Balance of each Mortgage Loan
(other than in respect of REO Property) plus accrued and unpaid interest
thereon from the date to which such interest was paid or advanced at the sum
of the applicable Mortgage Rate, to but not including the Due Date in the
month of the final Distribution Date (or the Net Mortgage Rate with respect to
any Mortgage Loan currently serviced by the entity exercising such Optional
Termination) and (ii) with respect to any REO Property, the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Depositor
at the expense of the Depositor and (y) the Stated Principal Balance of each
Mortgage Loan in the related Loan Groups related to any REO Property, in each
case and (iii) any remaining Reimbursement Amounts due to MBIA, unreimbursed
Advances, Servicing Advances, Servicing Fees and other amounts payable to the
Servicers, the Certificate Insurer and the Trustee. The Trustee shall give
notice to the Rating Agencies and MBIA of election to purchase the Mortgage
Loans pursuant to this Section 10.01 and of the Optional Termination Date.
Unless WMMSC and MLS otherwise agree, in connection with any Optional
Termination of the trust by MLS, WMMSC will continue to service the WMMSC
Serviced Loans substantially in accordance with the servicing provisions of
this agreement and will be entitled to the related Servicing Fee.
SECTION 10.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section 10.01,
MLS shall, at least twenty days prior to the date notice is to be mailed to
the affected Certificateholders notify the Trustee of such Optional
Termination Date and of the applicable purchase price of the Mortgage Loans to
be repurchased.
(b) Any repurchase of the Mortgage Loans by MLS shall be made on an
Optional Termination Date by deposit of the applicable purchase price into the
Certificate Account, as applicable, before the Distribution Date on which such
repurchase is effected. Upon receipt by the Trustee of an Officer's
Certificate of MLS certifying as to the deposit of such purchase price into
the Certificate Account, the Trustee and each co-trustee and separate trustee,
if any, then acting as such under this Agreement, shall, upon request and at
the expense of MLS, execute and deliver all such instruments of transfer or
assignment, in each case without recourse, as shall be reasonably requested by
MLS, to vest title in MLS in the Mortgage Loans so repurchased and shall
transfer or deliver to MLS the repurchased Mortgage Loans. Any distributions
on the Mortgage Loans which have been subject to an Optional Termination
received by the Trustee subsequent to (or with respect to any period
subsequent to) the Optional Termination Date shall be promptly remitted by it
to MLS.
(c) Notice of the Distribution Date on which a Servicer anticipates
that the final distribution shall be made (whether upon Optional Termination
or otherwise), shall be given promptly by such Servicer to the Trustee and by
the Trustee by first class mail to Holders of the affected Certificates and to
MBIA. Such notice shall be mailed no earlier than the 15th day and not later
than the 10th day preceding the Optional Termination Date or date of final
distribution, as the case may be. Such notice shall specify (i) the
Distribution Date upon which final distribution on the affected Certificates
will be made upon presentation and surrender of such Certificates at the
office or agency therein designated, (ii) the amount of such final
distribution and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, such distribution being made only upon
presentation and surrender of such Certificates at the office or agency
maintained for such purposes (the address of which shall be set forth in such
notice).
(d) In the event that any Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trustee shall give a second written
notice to the remaining such Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain subject to the Trust Fund.
SECTION 10.03 Additional Termination Requirements.
(a) In the event MLS exercises its purchase options pursuant to
Section 10.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, unless the Trustee and MBIA have received
an Opinion of Counsel to the effect that the failure to comply with the
requirements of this Section will not (i) result in the imposition of taxes on
a "prohibited transaction" of any REMIC, as described in Section 860F of the
Code, or (ii) cause any REMIC created hereunder to fail to qualify as a REMIC
at any time that any Certificates are outstanding:
(A) within 90 days prior to the
final Distribution Date set forth in the notice given by MLS
under Section 10.02, the Holder of the Class AR Certificates
shall adopt a plan of complete liquidation of each REMIC
created hereunder; and
(B) at or after the time of adoption
of any such plan of complete liquidation for the Trust Fund
at or prior to the final Distribution Date, the Trustee
shall sell all of the assets of the Trust Fund to the
Depositor for cash; provided, however, that in the event
that a calendar quarter ends after the time of adoption of
such a plan of complete liquidation but prior to the final
Distribution Date, the Trustee shall not sell any of the
assets of the Trust Fund prior to the close of that calendar
quarter.
(b) By its acceptance of a Class AR Certificate, the Holder
thereof hereby agrees to adopt such a plan of complete liquidation and to take
such other action in connection therewith as may be reasonably required to
liquidate and otherwise terminate the Trust Fund.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the
Depositor, the Servicers, the Sellers and the Trustee, without the consent of
any of the Certificateholders,
(i) to cure any error or ambiguity,
(ii) to correct or supplement any provisions herein that
may be inconsistent with any other provisions herein or in the
Prospectus Supplement,
(iii) to modify, eliminate or add to any of its provisions
to such extent as shall be necessary or desirable to maintain
the qualification of the Trust Fund as a REMIC at all times
that any Certificate is outstanding or to avoid or minimize the
risk of the imposition of any tax on the Trust Fund pursuant to
the Code that would be a claim against the Trust Fund, provided
that the Trustee has received an Opinion of Counsel to the
effect that (A) such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of
the imposition of any such tax and (B) such action will not
adversely affect the status of any REMIC created hereunder as a
REMIC or adversely affect in any material respect the interests
of any Certificateholder,
(iv) in connection with the appointment of a successor
servicer, to modify, eliminate or add to any of the servicing
provisions, provided the Rating Agencies confirm the rating of
the Certificates (without regard to the Class III-A-1 Policy)
and MBIA consents, which consent shall not be unreasonably
withheld; or
(v) to make any other provisions with respect to matters
or questions arising under this Agreement that are not
materially inconsistent with the provisions of this Agreement,
provided that such action shall not adversely affect in any
material respect the interests of any Certificateholder or
cause an Adverse REMIC Event.
(b) This Agreement may be amended from time to time by the
Depositor, the Sellers, the Servicers and the Trustee with the consent of the
Holders of Certificates evidencing, in the aggregate, not less than 66-2/3% of
the Voting Rights of all the Certificates for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
the Certificates; provided, however, that no such amendment may (i) reduce in
any manner the amount of, delay the timing of or change the manner in which
payments received on or with respect to Mortgage Loans are required to be
distributed with respect to any Certificate without the consent of the Holder
of such Certificate (and in the case of the Class III-A-1 Certificates, MBIA),
(ii) adversely affect in any material respect the interests of the Holders of
a Class of Certificates or MBIA in a manner other than as set forth in (i)
above without (a) the consent of the Holders of Certificates evidencing not
less than 66-2/3% of the Voting Rights of such Class and (b) in the case of
the Class III-A-1 Certificates or with respect to matters adversely affecting
the interests of MBIA, the consent of MBIA, which consent shall not be
unreasonably withheld, (iii) reduce the aforesaid percentages of Voting
Rights, the holders of which are required to consent to any such amendment
without the consent of 100% of the Holders of Certificates of the Class
affected thereby, (iv) change the percentage of the Stated Principal Balance
of the Mortgage Loans specified in Section 10.01(a) relating to optional
termination of the Trust Fund or (v) modify the provisions of this Section
11.01.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(c) Promptly after the execution of any amendment to this Agreement,
the Trustee shall furnish written notification of the substance of such
amendment to each Certificateholder, and the Rating Agencies.
(d) Prior to the execution of any amendment to this Agreement, the
Trustee shall receive and be entitled to conclusively rely on an Opinion of
Counsel (at the expense of the Person seeking such amendment) stating that the
execution of such amendment is authorized and permitted by this Agreement. The
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Agreement.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) This Agreement (other than Schedule I) is subject to recordation
in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public
recording office or elsewhere. Such recordation, if any, shall be effected by
the related Servicer at its expense on direction of the Trustee, but only upon
direction of the Trustee accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of the
Certificateholders of the Trust Fund.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.04 Intention of Parties.
(a) It is the express intent of the Depositor, the Sellers, the
Servicers and the Trustee that the conveyance by WMMSC of the WMMSC Loans
pursuant to the WMMSC Mortgage Loan Purchase Agreement, the conveyance by
GreenPoint Loans pursuant to the GreenPoint Mortgage Loan Purchase Agreement
and the conveyance by DLJMC to the Depositor pursuant to the Assignment and
Assumption Agreement and the conveyance by the Depositor to the Trustee as
provided for in Section 2.01 of each of the Sellers' and Depositor's right,
title and interest in and to the Mortgage Loans be, and be construed as, an
absolute sale and assignment by the Sellers to the Depositor and by the
Depositor to the Trustee of the Mortgage Loans for the benefit of the
Certificateholders. Further, it is not intended that any conveyance be deemed
to be a pledge of the Mortgage Loans by the Sellers, to the Depositor or by
the Depositor to the Trustee to secure a debt or other obligation. However, in
the event that the Mortgage Loans are held to be property of the Sellers, or
the Depositor, or if for any reason the WMMSC Mortgage Loan Purchase
Agreement, the GreenPoint Mortgage Loan Purchase Agreement, the Assignment and
Assumption Agreement or this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Articles
8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial
Code of any other applicable jurisdiction; (ii) the conveyances provided for
in Section 2.01 shall be deemed to be a grant by the Sellers and the Depositor
to the Trustee on behalf of the Certificateholders, to secure payment in full
of the Secured Obligations (as defined below), of a security interest in all
of the Sellers' and the Depositor's right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and
to the Mortgage Loans, including the Mortgage Notes, the Mortgages, any
related insurance policies and all other documents in the related Mortgage
Files, and all accounts, contract rights, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit and uncertificated securities
consisting of, arising from or relating to (A) the Mortgage Loans, including
with respect to each Mortgage Loan, the Mortgage Note and related Mortgage,
and all other documents in the related Trustee Mortgage Files, and including
any Qualified Substitute Mortgage Loans; (B) pool insurance policies, hazard
insurance policies and any bankruptcy bond relating to the foregoing, if
applicable; (C) the Certificate Account; (D) the Collection Account; (E) all
amounts payable after the Cut-off Date to the holders of the Mortgage Loans in
accordance with the terms thereof; (F) all income, payments, proceeds and
products of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts from time to time held or invested in the Certificate Account,
whether in the form of cash, instruments, securities or other property; and
(G) all cash and non-cash proceeds of any of the foregoing; (iii) the
possession by the Trustee or any other agent of the Trustee of Mortgage Notes
or such other items of property as constitute instruments, money, documents,
advices of credit, letters of credit, goods, certificated securities or
chattel paper shall be deemed to be a "possession by the secured party", or
possession by a purchaser or a person designated by him or her, for purposes
of perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-305, 8-313 or 8-321 thereof); and
(iv) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, securities intermediaries, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law. "Secured Obligations" means (i) the rights of
each Certificateholder to be paid any amount owed to it under this Agreement
and (ii) all other obligations of the Sellers and the Depositor under this
Agreement, the Assignment and Assumption Agreement, the WMMSC Mortgage Loan
Purchase Agreement and the GreenPoint Mortgage Loan Purchase Agreement.
(b) The Sellers and the Depositor, and, at the Depositor's
direction, the Servicers and the Trustee, shall, to the extent consistent with
this Agreement, take such reasonable actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans and the other property described above, such security interest
would be deemed to be a perfected security interest of first priority as
applicable. The Depositor shall prepare and file, at the related Servicer's
expense, all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in any
jurisdiction to perfect the Trustee's security interest in or lien on the
Mortgage Loans, including without limitation (i) continuation statements, and
(ii) such other statements as may be occasioned by any transfer of any
interest of any Servicer or the Depositor in any Mortgage Loan.
SECTION 11.05 Notices.
In addition to other notices provided under this Agreement, the
Trustee shall notify the Rating Agencies in writing: (a) of any substitution
of any Mortgage Loan; (b) of any payment or draw on any insurance policy
applicable to the Mortgage Loans; (c) of the final payment of any amounts
owing to a Class of Certificates; (d) any Event of Default under this
Agreement; and (e) in the event any Mortgage Loan is repurchased in accordance
with this Agreement.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when received (i) in the case of
the Depositor, Credit Suisse First Boston Mortgage Securities Corp., 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President; (ii) in the
case of the Trustee, the Corporate Trust Office, or such other address as may
hereafter be furnished to the Depositor in writing by the Trustee; (iii) in
the case of DLJMC, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxx (with a copy to DLJ Mortgage Acceptance Corp., 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Office of the
General Counsel), or such other address as may be hereafter furnished to the
Depositor and the Trustee by DLJMC in writing; (iv) in the case of, WMMSC, 00
Xxxxx Xxxxxxx Xxxxx, Xxxxxx Xxxxx, XX 00000, Attention: General Counsel, or
such other address as may be hereafter furnished in writing to the Depositor
and the Trustee by WMMSC; (v) in the case of GreenPoint Mortgage Funding,
Inc., 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, Attention: [o]; (vi)
in the case of Midwest Loan Services, Inc., 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000; (vii) in the case of Fitch, Inc., Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance
Group; (viii) in the case of Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx Xxxxxxxxx; (ix) in the
case of Calmco, Calmco Servicing L.P., 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000-X,
Xxxxxx, Xxxxx, Attention: Xxxx Xxxx; (x) in the case of Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: [o]; and (xi) in the case
of MBIA, MBIA Insurance Corporation, 000 Xxxx Xxxxxx, Xxxxxx, XX 00000,
Attention: Insured Portfolio Management Structured Finance (IPM-SF CSFB Series
2001-9). Notices to Certificateholders shall be deemed given when mailed,
first class postage prepaid.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Certificates
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
provided herein, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 11.07, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 11.08 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Trustee pursuant to this Agreement, are and shall be deemed
fully paid.
SECTION 11.09 Protection of Assets.
Except for transactions and activities entered into in connection
with the securitization that is the subject of this agreement, the trust
created by this agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or
sell assets; or
(iii)engage in any business or activities.
Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trust Fund or initiate any other
form of insolvency proceeding until after the Certificates have been paid.
IN WITNESS WHEREOF, the Depositor, the Sellers, the
Servicers and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized all as of the first day of
March, 2001.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
DLJ MORTGAGE CAPITAL, INC.,
as a Seller
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
MIDWEST LOAN SERVICES, INC.,
as a Servicer
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
GREENPOINT MORTGAGE FUNDING, INC.,
as a Seller and a Servicer
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as a Seller and a Servicer
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CALMCO SERVICING L.P.,
as a Servicer
By: /s/ S. Xxxxxxxxxxx Xxxxx
--------------------------------
Name: S. Xxxxxxxxxxx Xxxxx
Title: Chief Executive Officer
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ___ day of March, 2001, before me, personally appeared
____________, known to me to be a _______ of Credit Suisse First Boston
Mortgage Securities Corp., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ___ day of March, 2001, before me, personally appeared
__________, known to me to be a _________________ of DLJ Mortgage Capital,
Inc., one of the corporations that executed the within instrument and also
known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF )
: ss.:
COUNTY OF )
On the ___ day of March, 2001, before me, personally appeared
__________, known to me to be a _________________ of Washington Mutual
Mortgage Securities Corp., one of the corporations that executed the within
instrument and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF )
: ss.:
COUNTY OF )
On the ___ day of March, 2001, before me, personally appeared
__________, known to me to be a _________________ of GreenPoint Funding, Inc.,
one of the corporations that executed the within instrument and also known to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of March, 2001 before me, a Notary Public in and for
said State, personally appeared ______________ known to me to be a
_____________ of Bank One, National Association, the national banking
association that executed the within instrument and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of March, 2001 before me, a Notary Public in and for
said State, personally appeared ______________ known to me to be a
_____________ of Calmco Servicing L.P., the Delaware limited partnership that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF )
: ss.:
COUNTY OF )
On the ____ of March, 2001 before me, a Notary Public in and for
said State, personally appeared ______________ known to me to be a
_____________ of Midwest Loan Services, Inc., one of the corporations which
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
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").
Certificate No. :
Cut-off Date : March 1, 2001
First Distribution Date : April 25, 2001
Initial Certificate Principal Balance
of this Certificate
("Denomination") :
Initial Certificate Principal Balances
of all Certificates
of this Class :
CUSIP :
Pass-Through Rate :
Maturity Date :
A-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class [_]-A-[_]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of fixed rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time
may be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Sellers, the Servicers or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as a seller (in
such capacity, a "Seller"), Washington Mutual Mortgage Securities Corp., as a
seller (in such capacity, a "Seller") and as a servicer (in such capacity, a
"Servicer"), Calmco Servicing L.P., as a servicer (in such capacity, a
"Servicer"), GreenPoint Mortgage Funding, Inc., as a seller (in such capacity,
a "Seller") and a servicer (in such capacity, a "Servicer") and Midwest Loan
Services, Inc., as a servicer (in such capacity, a "Servicer") and Bank One,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: March 30, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By
------------------------------
Countersigned:
By
------------------------------
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
A-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class [_]-A-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to all Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month immediately
preceding the calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Sellers
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trustee in New York, New York, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Sellers, the Depositor, the Trustee, or any such agent
shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 10% of the Aggregate Loan Balance
as of the Cut-off Date, [Midwest] will have the option to repurchase, in
whole, from the Trust Fund all remaining Mortgage Loans and all property
acquired in respect of the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund or
the disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
A-6
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent
with that meaning.
A-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________
____________________________________________________________________________,
for the account of _________________________________________________________,
account number ________________, or, if mailed by check, to _________________
_____________________________________________________________________________
____________________________________________________________________________.
Applicable statements should be mailed to ___________________________________
_____________________________________________________________________________
____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
A-8
EXHIBIT B
[FORM OF CLASS B 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.
[For ERISA Restricted Certificates:]
[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 OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.]
[For Private Certificates:]
[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.]
B-1
Certificate No. :
Cut-off Date : March 1, 2001
First Distribution Date : April 25, 2001
Initial Certificate Principal Balance
of this Certificate
("Denomination") :
Initial Certificate Principal Balances
of all Certificates
of this Class :
CUSIP :
Interest Rate :
Maturity Date :
B-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class [_]-B-[_]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of fixed rate conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time
may be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Sellers, the Servicers, the or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO., is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as a seller (in
such capacity, a "Seller"), Washington Mutual Mortgage Securities Corp., as a
seller (in such capacity, a "Seller") and as a servicer (in such capacity, a
"Servicer"), Calmco Servicing L.P., as a servicer (in such capacity, a
"Servicer"), GreenPoint Mortgage Funding, Inc., as a seller (in such capacity,
a "Seller") and a servicer (in such capacity, a "Servicer") and Midwest Loan
Services, Inc., as a servicer (in such capacity, a "Servicer") and Bank One,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
[For ERISA Restricted Certificates:]
[No transfer of a Class [_] 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
B-3
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.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
B-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 30, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By ____________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
B-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class [_]-B-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9 of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to the Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month preceding the
calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Sellers
B-6
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Sellers, the Depositor, the Trustee, or any such agent
shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 10% of the Aggregate Loan Balance as of the
Cut-off Date, [Midwest] will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
B-7
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
B-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________
____________________________________________________________________________,
for the account of _________________________________________________________,
account number ________________, or, if mailed by check, to _________________
_____________________________________________________________________________
____________________________________________________________________________.
Applicable statements should be mailed to ___________________________________
_____________________________________________________________________________
____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
B-9
EXHIBIT C
[FORM OF CLASS AR CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A 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 OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.
C-1
Certificate No. :
Cut-off Date : March 1, 2001
First Distribution Date : April 25, 2001
Initial Certificate Principal Balance
of this Certificate
("Denomination") : $
Initial Certificate Principal Balances
of all Certificates
of this Class : $
CUSIP :
Pass-Through Rate :
Maturity Date :
C-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class AR
evidencing a percentage interest in the distributions allocable to the
Class AR Certificates with respect to a Trust Fund consisting primarily
of a pool of fixed rate conventional mortgage loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Sellers, the Servicers or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that Credit Suisse First Boston Corporation, is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, DLJ Mortgage Capital,
Inc., as a seller (in such capacity, a "Seller"), Washington Mutual Mortgage
Securities Corp., as a seller (in such capacity, a "Seller") and as a servicer
(in such capacity, a "Servicer"), Calmco Servicing L.P., as a servicer (in
such capacity, a "Servicer"), GreenPoint Mortgage Funding, Inc., as a seller
(in such capacity, a "Seller") and a servicer (in such capacity, a "Servicer")
and Midwest Loan Services, Inc., as a servicer (in such capacity, a
"Servicer") and Bank One, National Association, as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class AR
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class AR Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to
C-4
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 Class
AR Certificate presented for registration in the name of an employee benefit
plan subject to ERISA, or Section 4975 of the Code (or comparable provisions
of any subsequent enactments), or a trustee of any such plan or any other
person acting on behalf of any such plan or arrangement, or using such plan's
or arrangement's assets, an Opinion of Counsel satisfactory to the Trustee to
the effect that the purchase or holding of such Class AR Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the 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 AR Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the Opinion of
Counsel satisfactory to the Trustee as described above shall be void and of no
effect.
Each Holder of this Class AR Certificate will be deemed to have agreed to
be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class AR Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class AR Certificate may be transferred without
delivery to the Trustee of a transfer affidavit of the initial owner or the
proposed transferee in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class AR Certificate must
agree to require a transfer affidavit from any other person to whom such
person attempts to Transfer its Ownership Interest in this Class AR
Certificate as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class AR Certificate must agree not to
transfer an Ownership Interest in this Class AR Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v)
any attempted or purported transfer of any Ownership Interest in this Class AR
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 30, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By ______________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
C-5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class AR
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect the Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month preceding the
calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Sellers
C-6
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Sellers, the Depositor, the Trustee, or any such agent
shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 10% of the Aggregate Loan Balance as of the
Cut-off Date, [Midwest] will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
C-7
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
C-8
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________
____________________________________________________________________________,
for the account of _________________________________________________________,
account number ________________, or, if mailed by check, to _________________
_____________________________________________________________________________
____________________________________________________________________________.
Applicable statements should be mailed to ___________________________________
_____________________________________________________________________________
____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
C-9
EXHIBIT D
[FORM OF CLASS X CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No. :
Cut-off Date : March 1, 2001
First Distribution Date : April 25, 2001
Initial Notional Amount of this
Certificate ("Denomination") :
Initial Class Notional Amount of
all Certificates of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
D-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class [_]-X-[_]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of fixed rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Sellers, the Servicers or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO, is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as a seller (in
such capacity, a "Seller"), Washington Mutual Mortgage Securities Corp., as a
seller (in such capacity, a "Seller") and as a servicer (in such capacity, a
"Servicer"), Calmco Servicing L.P., as a servicer (in such capacity, a
"Servicer"), GreenPoint Mortgage Funding, Inc., as a seller (in such capacity,
a "Seller") and a servicer (in such capacity, a "Servicer") and Midwest Loan
Services, Inc., as a servicer (in such capacity, a "Servicer") and Bank One,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 30, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By ________________________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
D-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
[_]-X-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to any Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates in Book-Entry Form only, the close
of business on the last Business Day of the calendar month preceding the
calendar month of such Distribution Date..
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Sellers
D-5
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Sellers, the Depositor, the Trustee, or any such agent
shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 10% of the Aggregate Loan Balance as of the
Cut-off Date, [Midwest] will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
D-6
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
D-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________
____________________________________________________________________________,
for the account of _________________________________________________________,
account number ________________, or, if mailed by check, to _________________
_____________________________________________________________________________
____________________________________________________________________________.
Applicable statements should be mailed to ___________________________________
_____________________________________________________________________________
____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
D-8
EXHIBIT E
[FORM OF CLASS P CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
E-1
Certificate No. :
Cut-off Date : March 1, 2001
First Distribution Date : April 25, 2001
Initial Notional Amount of this
Certificate ("Denomination") :
Initial Class Notional Amount of
all Certificates of this Class :
Percentage Interest :
CUSIP :
Pass-Through Rate :
Maturity Date :
E-2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class [_]-P-[_]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of fixed rate conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties.
Credit Suisse First Boston Mortgage Securities Corp., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Sellers, the Servicers or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO, is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, DLJ Mortgage Capital, Inc., as a seller (in
such capacity, a "Seller"), Washington Mutual Mortgage Securities Corp., as a
seller (in such capacity, a "Seller") and as a servicer (in such capacity, a
"Servicer"), Calmco Servicing L.P., as a servicer (in such capacity, a
"Servicer"), GreenPoint Mortgage Funding, Inc., as a seller (in such capacity,
a "Seller") and as a servicer (in such capacity, a "Servicer") and Midwest
Loan Services, Inc., as a servicer (in such capacity, a "Servicer") and Bank
One, National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
E-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: March 30, 2001.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By ___________________________________
Countersigned:
By ___________________________
Authorized Signatory of
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
E-4
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9
Class [_]-P-[_]
This Certificate is one of a duly authorized issue of Certificates
designated as Credit Suisse First Boston Mortgage Securities Corp.,
Mortgage-Backed Pass-Through Certificates, Series 2001-9, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month, or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is (1) with respect to the Certificates
other than the LIBOR Certificates held in Book-Entry Form, the last day of the
calendar month preceding the month in which such Distribution Date occurs and
(2) with respect to the LIBOR Certificates held in Book-Entry Form only, the
close of business on the last Business Day of the calendar month preceding the
calendar month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicers, the Sellers
E-5
and the Trustee with the consent of the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in
the Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, each Servicer, each Seller and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Servicers, the Sellers, the Depositor, the Trustee, or any such agent
shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than 10% of the Aggregate Loan Balance as of the
Cut-off Date, [Midwest] will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
E-6
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to __________________________________________________________,
for the account of __________________________________________________________,
account number ____________, or, if mailed by check, to ______________________
______________________________________________________________________________
_____________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by, the assignee named above, or, as its agent.
E-8
EXHIBIT F
FORM OF SERVICER INFORMATION
The following information will be e-mailed to Trustee in accordance with
Section 4.04:
Servicer Loan Number
Trust Loan Number (if applicable)
Scheduled Net Interest
Scheduled Principal
Curtailment Applied
Curtailment Adjustment
Mortgage Rate
Servicing Fee
P&I Payment
Beginning Scheduled Balance
Ending Scheduled Balance
Ending Actual Principal Balance
Due Date
Prepayment in full Principal
Prepayment in full Net Interest
Prepayment in full Penalty
Delinquencies:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
Loss Amounts
Xxxxxxx Xxxxxx
First Security Investor Reporting
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Phone No. 000-000-0000
Fax No. 000-000-0000
kknight@fsir. com
Xxxx Xxxxx
Bank One, National Association
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Phone No. 000-000-0000
Fax No. 000-000-0000
xxxx_xxxxx@xxxxxxx.xxx
F-1
EXHIBIT G
[RESERVED]
G-1
EXHIBIT H
SCHEDULE OF MORTGAGE LOANS
H-1
EXHIBIT I
FORM OF INITIAL CERTIFICATION OF TRUSTEE
March 30, 2001
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to CSFB Mortgage-Backed Pass-Through
Certificates, Series 2001-9
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
Pooling and Servicing Agreement, the undersigned, as Trustee, hereby certifies
that, except for the exceptions noted on the schedule attached hereto, it has
(a) received an original Mortgage Note with respect to each Mortgage Loan
listed on the Mortgage Loan Schedule and (b) received an original Mortgage (or
a certified copy thereof) with respect to each Mortgage Loan listed on the
Mortgage Loan Schedule in accordance with Section 2.01 of the Pooling and
Servicing Agreement. The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
mentioned above. The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement or any of the Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has granted to
the Trustee for the benefit of the Certificateholders a security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans.
Capitalized terms used herein without definition shall have the meaning
assigned to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------------
Authorized Representative
I-1
EXHIBIT J
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ Mortgage Capital, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to CSFB Mortgage-Backed Pass-Through
Certificates, Series 2001-9
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement the undersigned, as Trustee,
hereby certifies that, except for the exceptions noted on the schedule
attached hereto, as to each Mortgage Loan listed in the Mortgage Loan Schedule
it has reviewed the Mortgage File and has determined that (based solely on its
review of each such documents on its face) (i) all documents described in
clauses (i)-(v) of Section 2.01(b) of the Pooling and Servicing Agreement are
in its possession, (ii) such documents have been reviewed by it and have not
been mutilated, damaged, defaced, torn or otherwise physically altered and
such documents relate to such Mortgage Loan and (iii) each Mortgage Note has
been endorsed and each assignment of Mortgage has been delivered as provided
in Section 2.01 of the Pooling and Servicing Agreement. The Trustee has made
no independent examination of any documents required to be delivered in
accordance with Section 2.01 of the Pooling and Servicing Agreement beyond the
review specifically required therein. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents required to be delivered in accordance with Section 2.01
of the Pooling and Servicing Agreement or any of the Mortgage Loans identified
on the Mortgage Loan Schedule, or (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan.
J-1
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------------
Authorized Representative
J-2
EXHIBIT K
FORM OF REQUEST FOR RELEASE
[date]
To: Bank One, National Association
In connection with the administration of the Mortgage Loans held by you as
Trustee under the Pooling and Servicing Agreement dated as of Xxxxx 0, 0000,
xxxxx xxx Xxxxxxxxx, XXX Mortgage Capital, Inc., as a seller, Washington
Mutual Mortgage Securities Corp., as a seller (in such capacity, a "Seller")
and as a servicer (in such capacity, a "Servicer"), Calmco Servicing L.P., as
a servicer (in such capacity, a "Servicer"), GreenPoint Mortgage Funding,
Inc., as a seller (in such capacity, a "Seller") and a servicer (in such
capacity, a "Servicer") and Midwest Loan Services, Inc., as a servicer (in
such capacity, a "Servicer"), and you, as Trustee (the "Pooling and Servicing
Agreement"), the undersigned hereby requests a release of the Mortgage File
held by you as Trustee with respect to the following described Mortgage Loan
for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be credited
to the Certificate Account pursuant to the Pooling and Servicing
Agreement.)
____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price has been
credited to the Certificate Account pursuant to the Pooling and
Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Pooling and Servicing
Agreement and will be returned, except if the Mortgage Loan has been paid in
full or repurchased (in which case the Mortgage File will be retained by us
permanently) when no longer required by us for such purpose.
K-1
Capitalized terms used herein shall have the meanings ascribed to them in the
Pooling and Servicing Agreement.
[NAME OF SERVICER]
By:
---------------------------------
Name:
Title:
K-2
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, XX 00000
Attention: Global Corporate Trust Services
Re: CSFB Mortgage-Backed Pass-Through Certificates, Series 2001-9
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify that
(a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being disposed by us
in a transaction that is exempt from the registration requirements of the Act,
(b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or
taken any other action which would result in, a violation of Section 5 of the
Act and (c) to the extent we are disposing of a Class AR Certificate, we have
no knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
---------------------------
Print Name of Transferor
By:
----------------------
Authorized Officer
L-1
EXHIBIT M-1
FORM OF INVESTMENT LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, XX 00000
Attention: Global Corporate Trust Services
Re: CSFB Mortgage-Backed Pass-Through Certificates, Series 2001-9
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify that
(a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws
and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) we are an insurance company
which is purchasing the 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 the purchase
and holding of such Certificates satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60, (e) we are acquiring the Certificates
for investment for our own account and not with a view to any distribution of
such Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below),
(f) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, or taken any other action which would
result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale,
transfer or other disposition is made pursuant to an effective registration
statement under the Act or is exempt from such registration requirements, and
if requested, we will at our expense provide an opinion of counsel
satisfactory to the addressees of this Certificate that such
M-1-1-
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 Transferee
By:
---------------------
Authorized Officer
M-1-2
EXHIBIT M-2
FORM OF RULE 144A LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, XX 00000
Attention: Global Corporate Trust Services
Re: CSFB Mortgage-Backed Pass-Through Certificates, Series 2001-9
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify that
(a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws
and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement nor using the assets of any such plan or arrangement
to effect such acquisition, or (ii) we are an insurance company which is
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 satisfy the requirements for exemptive relief under Sections I
and III of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that
would render the disposition of the Certificates a violation of Section 5 of
the Act or require registration pursuant thereto, nor will act, nor has
authorized or will authorize any person to act, in such manner with respect to
the Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex
2, (g) we are aware that the sale to us is being made in reliance on Rule
144A, and (i) we are acquiring the Certificates for our own account or for
resale
M-2-1
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 Transferee
By: _________________________
Authorized Officer
M-2-2
EXHIBIT N
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or beneficial
owner (the "Owner") of the Class AR Certificates (the "Class AR
Certificates")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States],
on behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified organization" as
of [date of transfer] within the meaning of Section 860E(e)(5) of the Internal
Revenue Code of 1986, as amended (the "Code"), (ii) will endeavor to remain
other than a disqualified organization for so long as it retains its ownership
interest in the Class AR Certificates, and (iii) is acquiring the Class AR
Certificates for its own account. A "Permitted Transferee" is any person other
than a "disqualified organization". (For this purpose, a "disqualified
organization" means the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity) or any foreign
government, international organization or any agency or instrumentality of
such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives)
that is generally exempt from federal income tax unless such organization is
subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on transfers
of Class AR Certificates to disqualified organizations under the Code; (ii)
that such tax would be on the transferor, or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class AR Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, if a significant purpose of
the transfer was to enable the transferor to impede the assessment or
collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through entity"
holding Class AR Certificates if at any time during the taxable year of the
pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass through
N-1
entity" includes a regulated investment company, a real estate investment
trust or common trust fund, a partnership, trust or estate, and certain
cooperatives.)
5. That the Owner is aware that the Trustee will not register the Transfer of
any Class AR Certificates unless the transferee, or the transferee's agent,
delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner
expressly agrees that it will not consummate any such transfer if it knows or
believes that any of the representations contained in such affidavit and
agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face of the
Class AR Certificates and the provisions of Section 6.02 of the Pooling and
Servicing Agreement under which the Class AR Certificates were issued. The
Owner expressly agrees to be bound by and to comply with such restrictions and
provisions.
7. That the Owner consents to any additional restrictions or arrangements that
shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class AR Certificates will only be owned,
directly or indirectly, by an Owner that is a Permitted Transferee.
8. That the Owner's Taxpayer Identification Number is ________________.
9. That the Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any State thereof or the District of Columbia, or
an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
10. That no purpose of the Owner relating to the purchase of the Class AR
Certificate by the Owner is or will be to impede the assessment or collection
of tax.
11. That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that it will become
insolvent or subject to a bankruptcy proceeding for so long as any of the
Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the Class AR
Certificate by the Owner will be to impede the assessment or collection of tax.
14. The Owner hereby agrees to cooperate with the Trustee and
to take any action required of it by the Code or Treasury
regulations thereunder (whether now or hereafter
promulgated) in order to create or maintain the REMIC
status of the Trust Fund.
15. That the Owner
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of
N-2
the Internal Revenue Code of 1986, as amended (the "Code") (a "Plan"), or any
other person (including an investment manager, a named fiduciary or a trustee
of any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan; or
(b) is an insurance company, the source of funds to be used by it to purchase
the Certificates is an "insurance company general account" (within the meaning
of Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60),
and the purchase and holding satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60.
16. The Owner hereby agrees that it will not take any action that could
endanger the REMIC status of the Trust Fund or result in the imposition of tax
on the Trust Fund unless counsel for, or acceptable to, the Trustee has
provided an opinion that such action will not result in the loss of such REMIC
status or the imposition of such tax, as applicable.
17. The Owner has provided financial statements or other financial information
requested by the transferor in connection with the transfer of the Residual
Certificates to permit the transferor to assess the financial capability of
the Owner to pay any such taxes.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Title of
Officer] and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this ____ day of ___________.
[NAME OF OWNER]
By:
----------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this _____ day of _______________________.
___________________________________
NOTARY PUBLIC
N-3
COUNTY OF
----------------------------
STATE OF
----------------------------
My Commission expires the _____day of
__________________, 20____.
N-4
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, XX 00000
Attention: Global Corporate Trust Services
Re: CSFB Mortgage-Backed Pass-Through Certificates, Series 2001-9,
Class AR (the "Certificates")
--------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_________________ (the "Seller") to ____________________________________ (the
"Purchaser") of a _______% Percentage Interest in the above referenced
Certificates, pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of March 1, 2001 among
Credit Suisse First Boston Mortgage Securities Corp. as depositor (the
"Depositor"), Bank One, National Association, as trustee (the "Trustee"), DLJ
Mortgage Capital, Inc., as a seller, Washington Mutual Mortgage Securities
Corp., as a servicer, Calmco Servicing L.P., as a servicer, Green Point
Mortgage Funding, Inc., as a seller and a servicer and Midwest Loan Services,
Inc., as a servicer. All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The Seller
hereby certifies, represents and warrants to, and covenants with, the
Depositor and the Trustee that:
1. No purpose of the Seller relating to sale of the Certificate by the Seller
to the Purchaser is or will be to enable the Seller to impede the assessment
or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the Trustee a
transfer affidavit and agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit N. The Seller does not know or believe that any
representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee is not a
Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be unwilling or
unable to pay taxes due on its share of the taxable income attributable to the
Certificate.
5. The Seller has conducted a reasonable investigation of the financial
condition of the Purchaser and, as a result of the investigation, found that
the Purchaser has historically paid its
O-1
debts as they came due, and found no significant evidence to indicate that the
Purchaser will not continue to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the Certificate
constitutes a noneconomic residual interest, it (i) understands that as holder
of a noneconomic residual interest it may incur tax liabilities in excess of
any cash flows generated by the interest, and (ii) intends to pay taxes
associated with its holding of the Certificate as they become due.
Very truly yours,
[SELLER]
By:
----------------------------------------
Name:
Title:
O-2
EXHIBIT P
[On file]
P-1
EXHIBIT Q
[On file]