Exhibit 99.1
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CWMBS, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Underlying Certificate Seller
and
THE BANK OF NEW YORK,
Trustee
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TRUST AGREEMENT
Dated as of December 28, 2001
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CWMBS, Inc.
Resecuritization Mortgage Trust,
Series 2001-33R
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Table of Contents
Page
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Article I
DEFINITIONS
Section 1.01. Definitions...................................................3
Article II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Deposited Underlying Certificates..........16
Section 2.02. Acceptance by Trustee........................................18
Section 2.03. Representations and Warranties of the Underlying Certificate
Seller.......................................................18
Section 2.04. Issuance of Certificates.....................................18
Section 2.05. REMIC Designations and Related Matters.......................18
Section 2.06. Representations, Warranties and Covenants of the Depositor...19
Article III
ADMINISTRATION OF THE TRUST FUND
Section 3.01. Collection of Payments on the Deposited Underlying
Certificates; Distribution Account...........................21
Section 3.02. Distributions................................................22
Section 3.03. Statements to Certificateholders and the Depositor...........25
Section 3.04. Allocation of Realized Losses................................27
Section 3.05. Notices to Trustee...........................................28
Section 3.06 Access to Certain Documentation and Information..............28
Section 3.07 Principal Reserve Fund.......................................28
Article IV
THE CERTIFICATES
Section 4.01. The Certificates.............................................29
Section 4.02. Registration of and Limitations on Transfer and Exchange of
Certificates.................................................29
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates............34
Section 4.04. Persons Deemed Owners........................................34
Section 4.05. Certain Available Information................................34
Article V
THE DEPOSITOR
Section 5.01. Liability of the Depositor...................................35
Section 5.02. Merger or Consolidation of the Depositor.....................35
Section 5.03. Limitation on Liability of the Depositor and Others..........36
Article VI
THE TRUSTEE
Section 6.01. Duties of Trustee............................................36
Section 6.02. Certain Matters Affecting the Trustee........................37
Section 6.03. Trustee Not Liable for Certificates or Deposited Underlying
Certificates.................................................39
Section 6.04. Trustee May Own Certificates.................................39
Section 6.05. Trustee's Fees and Expenses..................................39
Section 6.06. Eligibility Requirements for Trustee.........................40
Section 6.07. Resignation and Removal of the Trustee.......................40
Section 6.08. Successor Trustee............................................41
Section 6.09. Merger or Consolidation of Trustee...........................41
Section 6.10. Appointment of Co-Trustee or Separate Trustee................41
Section 6.11. Reserved.....................................................42
Section 6.12. Election of REMIC Status.....................................43
Section 6.13. Periodic Filings.............................................44
Section 6.14. Appointment of Office or Agency..............................44
Section 6.15. Limitation of Liability......................................44
Section 6.16. Trustee May Enforce Claims Without Possession of
Certificates.................................................44
Section 6.17. Suits for Enforcement........................................45
Section 6.18. Waiver of Bond Requirements..................................45
Section 6.19. Waiver of Inventory, Accounting and Appraisal Requirements...45
Section 6.20. Representations and Warranties of the Trustee................45
Section 6.21. Compliance with Withholding Requirements.....................46
Article VII
TERMINATION
Section 7.01. Termination..................................................46
Section 7.02. Failure of Certificateholders to Surrender Certificates......47
Section 7.03. Additional Termination Requirements..........................48
Article VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment....................................................48
Section 8.02. Limitation on Rights of Certificateholders...................49
Section 8.03. Governing Law................................................50
Section 8.04. Notices......................................................50
Section 8.05. Severability of Provisions...................................51
Section 8.06. Notice to Rating Agency......................................51
Section 8.07. Action Under and Conflicts With Underlying Agreements........51
Section 8.08. Article and Section References...............................52
Section 8.09. Execution in Counterparts....................................52
ii
Exhibit A-1 - Form of Class A-1 Certificate..............................A-1-1
Exhibit A-2 - Form of Class A-2 Certificate..............................A-2-1
Exhibit A-3 - Form of Class A-3 Certificate..............................A-3-1
Exhibit A-4 - Form of Class A-4 Certificate..............................A-4-1
Exhibit A-5 - Form of Class A-R Certificate..............................A-5-1
Exhibit B [Reserved]
Exhibit C - Deposited Underlying Certificates and Underlying Agreements....C-1
Exhibit D - Form of Transferor Affidavit for the Class A-R Certificate.....D-1
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This Trust Agreement ("Trust Agreement" or "Agreement"), dated as of
December 28, 2001, by and between CWMBS, INC., as Depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC., as underlying certificate seller (the
"Underlying Certificate Seller") and THE BANK OF NEW YORK, as Trustee (the
"Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Underlying Certificate Seller and the
Trustee desire to enter into a trust agreement dated as of the date hereof
(the "Trust Agreement"); and
WHEREAS, the Underlying Certificate Seller has transferred the Deposited
Underlying Certificates (as defined herein) to the Depositor pursuant to a
▇▇▇▇ of sale executed by the Underlying Certificate Seller in favor of the
Depositor;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. The Trust Fund for federal income
tax purposes will consist of a REMIC. The REMIC hereunder will consist of all
of the assets constituting the Trust Fund and will be evidenced by the Regular
Certificates and the Residual Certificates. 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,
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 other than the Class A-R Certificates may be
issued in a different amount):
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Integral
Initial Class Multiples
Class Certificate Pass-Through Minimum in Excess of
Designation Balance Rate Denomination Minimum
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Class A-1 $44,040,000 6.75% $25,000.00 $1,000.00
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Class A-2 $8,665,268 6.50% $25,000.00 $1,000.00
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Class A-3 $51,621,416 6.50% $25,000.00 $1,000.00
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Class A-4 $14,403,504 6.50% $25,000.00 $1,000.00
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Class A-R $ 100.00 6.50% N/A N/A
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Set forth below are designations of Classes of Certificates to the categories
used herein:
Delay Certificates. All interest-bearing Classes of
Certificates other than the Non-Delay
Certificates, if any.
ERISA-Restricted
Certificates. Residual Certificates.
Floating Rate Certificates. None.
Inverse Floating Rate
Certificates. None.
COFI Certificates. None.
LIBOR Certificates. None.
Non-Delay Certificates. None.
Notional Amount
Certificates. None.
Offered Certificates. All Classes of Certificates.
Physical Certificates. Residual Certificates.
Planned Principal Classes. None.
Primary Planned Principal
Classes. None.
Principal Only
Certificates. None.
Private Certificates. None.
Rating Agencies. ▇▇▇▇▇'▇ and Fitch.
Regular Certificates. All Classes of Certificates other than the
Residual Certificates.
Residual Certificates. Class A-R Certificates.
Scheduled Principal
Classes. None.
Secondary Planned Principal
Class. None.
Senior Certificates. Class A-1, Class A-2, Class A-3, Class A-4
and Class A-R Certificates.
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Subordinated Certificates. None.
Support Classes. None.
Targeted Principal
Classes. None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
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In consideration of the mutual agreements herein contained, the Depositor
and the Trustee agree as follows:
Article I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Trust Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accrual Period: With respect to any Class of Certificates and
Distribution Date, the calendar month preceding the month of such Distribution
Date.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Trust Agreement and all amendments hereof and
supplements hereto.
Allocated Underlying Realized Losses: As to any Distribution Date and
Class of Certificates, the Underlying Realized Losses (including Underlying
Excess Losses) allocated to the related Deposited Underlying Certificates in
accordance with the related Underlying Agreement in connection with
distributions thereon for the related Underlying Distribution Date.
Applicable State and Local Tax Law. For purposes hereof, the Applicable
State and Local Tax Law shall be (a) the tax laws, rules or regulations of the
State of New York; and (b) such other state or local tax laws, rules or
regulations whose applicability shall have been brought to the attention of
the Trustee by either (i) an opinion of counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability
of such state or local tax laws, rules or regulations.
Available Interest Funds: As to any Distribution Date and Class of
Certificate, the aggregate of all previously undistributed amounts received by
the Trustee on or prior to such Distribution Date as distributions of interest
on the related Deposited Underlying Certificates.
Available Principal Funds: As to any Distribution Date other than the
Distribution Date occurring in January 2002 and any Class of Certificate, the
aggregate of all previously undistributed amounts received by the Trustee on
or prior to such Distribution Date as distributions of principal on the
related Deposited Underlying Certificates, reduced by such class's pro rata
share (by Class Certificate Balance) of (i) the sum of expenses and
liabilities reimbursable to the Depositor pursuant to Section 6.03 hereof,
(ii) any other amounts reimbursable to the Trustee or payable to the Trustee
pursuant to this Agreement, including without limitation amounts payable to
the Trustee pursuant to Section 6.05 and (iii) any taxes imposed on the Trust
to be paid from amounts otherwise distributable to Certificateholders
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pursuant to Section 6.12 hereof (in each case, that have not been previously
paid by a reduction of Available Principal Funds). As to the Distribution Date
occurring in January 2002 and any Class of Certificate, the sum of (i) the
amount set forth in the previous sentence and (ii) the funds withdrawn from
the Principal Reserve Fund and deposited into the Distribution Account
pursuant to Section 3.07.
▇▇▇▇ of Sale: The ▇▇▇▇ of sale dated December 28, 2001, executed by the
Underlying Certificate Seller, as seller, and the Depositor, as purchaser,
relating to the sale of the Deposited Underlying Certificates from the
Underlying Certificate Seller to the Depositor.
Book-Entry Certificate: As specified in the Preliminary Statement.
Book-Entry Deposited Underlying Certificate: Any Deposited Underlying
Certificate registered in the name of the Depository or its nominee, the
ownership of which is reflected on the books of the Depository or on the books
of a Person maintaining an account with the Depository (directly, as a
"Depository Participant", or indirectly, as an indirect participant). As of
the date hereof, all of the Deposited Underlying Certificates other than the
Definitive Deposited Underlying Certificates are Book-Entry Deposited
Underlying Certificates.
Business Day: Any day other than a Saturday, a Sunday or a day on which
banking institutions in the city of New York, New York or the State of
California 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.
Certificate: Any one of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4
or Class A-R Certificates executed and authenticated by the Trustee in
substantially the form set forth, respectively, in Exhibit ▇-▇, ▇-▇, ▇-▇, ▇-▇
or A-5 hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the person
that is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: With respect to any Certificate and any
date of determination, an amount equal to the Initial Certificate Principal
Balance of such Certificate, minus the sum of (i) all distributions of
principal previously made with respect thereto and (ii) all Allocated
Underlying Realized Losses allocated thereto, as provided in Section 3.04(d).
Certificate Register: The register maintained pursuant to Section 4.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement (except as required pursuant to
Section 8.01), any Certificate registered in the name of the Depositor or any
Affiliate thereof shall be deemed not to be Outstanding and the Percentage
Interest evidenced thereby or Voting Rights assigned thereto shall not be
taken into account in determining whether the requisite amount of Percentage
Interests or Voting Rights, as the case may be, necessary to effect such
consent has been obtained; provided, however, that if any such Person
(including the Depositor or any Affiliate thereof) owns 100% of the Percentage
Interests evidenced by a Class of Certificates or of the Voting Rights
assigned thereto, such Certificates shall be taken into account for purposes
of any provision hereof that requires the
5
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely
conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
Class: Collectively, all of the Certificates bearing the same class
designation.
Class A-1 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-1 hereto.
Class A-2 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-2 hereto.
Class A-3 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-3 hereto.
Class A-4 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-4 hereto.
Class A-R Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-5 hereto.
Class Certificate 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 Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class, (A) the sum of (i) one month's
interest accrued during the related Accrual Period at the Pass-Through Rate
for such Class on the related Class Certificate Balance, subject to reduction
as provided in 3.04(d) and (ii) to the extent received on the related
Deposited Underlying Certificates any Class Unpaid Interest Amounts for such
Class minus (B) any reductions or shortfalls in interest distributions on the
related Deposited Underlying Certificates with respect to the Underlying
Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
Closing Date: December 28, 2001.
Code: The Internal Revenue Code of 1986, as amended.
6
Corporate Trust Office: The designated office of the Trustee in the
State of New York at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Attn: Mortgage-Backed Securities Group, CWMBS, Inc.
Resecuritization Mortgage Trust 2001-33R, Resecuritization Mortgage Trust
Certificates, Series 2001-33R), facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, and which is the
address to which notices to and correspondence with the Trustee should be
directed.
Cut-off Date: December 26, 2001.
Definitive Certificates: All Certificates that are not Book-Entry
Certificates (including, without limitation, all Certificates that are issued
in replacement for Book-Entry Certificates in accordance with Section
4.02(b)).
Definitive Deposited Underlying Certificates: As of the date hereof, the
Class A-15 and Class A-17, Chase Mortgage Finance Corporation Series 1993P
Multi-Class Mortgage Pass-Through Certificates and the Class 10-A17 and Class
10-A18 GE Capital Mortgage Services, Inc. Series 1993-10, REMIC Multi-Class
Pass-Through Certificates.
Delayed Underlying Distributions: As defined in Section 3.02(f).
Delayed Underlying Distributions Deposit Period: With respect to any
Delayed Underlying Distributions, the period from (i) the Underlying
Distribution Date on which such Delayed Underlying Distributions were due to
be distributed on a Deposited Underlying Certificates to (ii) the Distribution
Date on which such Delayed Underlying Distributions are distributed to Holders
of the related Certificates pursuant to Section 3.02(f).
Deposited Underlying Certificates: As listed in Exhibit C-1 hereto.
Depositor: CWMBS, Inc., a Delaware corporation, or its successor in
interest.
Depository: The Depository shall be, initially, The Depository Trust
Company ("DTC"), the nominee of which is CEDE & Co., or any other organization
registered as a "clearing agency" pursuant to the provisions of Section 17A of
the Securities Exchange Act of 1934, as amended. The Depository shall
initially be the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Distribution Account: The trust account, which must be an Eligible
Account, established and maintained pursuant to Section 3.01. Funds deposited
into the Distribution Account shall be held in trust for the benefit of the
Certificateholders for the uses and purposes set forth in Article III hereof.
7
Distribution Date: The 28th day of each calendar month (or, if such day
is not a Business Day, the next succeeding Business Day) commencing in
January, 2002; provided, however, that if the Underlying Distribution Date
falls on the 28th day of the calendar month, the Distribution Date shall be
the next succeeding Business Day following such Underlying Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term rating of each Rating Agency (except if a Rating Agency has
issued such a short-term rating, the highest short-term rating assigned by
Fitch or ▇▇▇▇▇'▇) at the time any amounts are held on deposit therein, or (ii)
an account or accounts in a depository institution or trust company in which
such accounts are insured by the Federal Deposit Insurance Corporation (to the
limits established by the Federal Deposit Insurance Corporation) and the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any collateral
(which shall be limited to Eligible Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii) a
trust account or accounts maintained with (a) the trust department of a
federal or state chartered depository institution or (b) a trust company,
acting in its fiduciary capacity or (iv) any other account acceptable to each
Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Trustee.
Eligible Investments: At any time, any one or more of the following
obligations and securities which shall mature not later than the Business Day
preceding the Distribution Date next succeeding the date of such investment:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and credit of the
United States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the highest
long-term debt rating of the Rating Agency, or such lower rating as will
not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each Rating
Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each
Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or long term
unsecured debt obligations of such depository institution or trust
company (or in the
8
case of the principal depository institution in a holding company
system, the commercial paper or long-term unsecured debt obligations of
such holding company) are then rated one of the two highest long-term
and the highest short-term ratings of each Rating Agency for such
securities, or such lower ratings as will not result in the downgrading
or withdrawal of the rating then assigned to the Certificates by each
Rating Agency;
(v) demand or time deposits or certificates of deposit issued by
any bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not
result in the downgrading or withdrawal of the rating then assigned to
the Certificates by each Rating Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (iv) above;
(viii) units of a taxable money-market portfolio having the
highest rating assigned by each Rating Agency (except if a Rating Agency
has not rated such Eligible Investment, the highest rating assigned by
Fitch or ▇▇▇▇▇'▇) and restricted to obligations issued or guaranteed by
the United States of America or entities whose obligations are backed by
the full faith and credit of the United States of America and repurchase
agreements collateralized by such obligations;
(ix) such other investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading
or withdrawal of the rating then assigned to the Certificates by each
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency; and
(x) BNY Cash Reserves, an interest bearing demand cash account of
The Bank of New York, or if such account is no longer available,
obligations of the United States or any agency thereof, provided such
obligations are backed by the full faith and credit of the United
States;
provided that no such instrument shall be an Eligible Investment if such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
ERISA: The Employee Retirement Income Security Act of 1974, as amended,
and the rules and regulations promulgated thereunder.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Excess Losses: With respect to a Deposited Underlying Certificate and
Distribution Date, any Realized Losses that are allocated among all classes of
the related Series on a pro rata basis on the related Underlying Distribution
Date immediately preceding such Distribution Date
9
in reduction of the respective principal balances, as indicated on the
Underlying Distribution Date Statement for such Underlying Distribution Date.
Final Payment Date: As to any Class of Certificates, the earlier of the
following: (i) the later of (a) the Distribution Date in December 2024 with
respect to the Class A-1 Certificates and the Distribution Date in November
2023 with respect to the Class A-2, Class A-3 and Class A-4 Certificates, (b)
the Distribution Date immediately following the reduction of the balance of
all of the Deposited Underlying Certificates to zero or (ii) the Distribution
Date immediately following the termination of the last remaining Underlying
Trust Fund.
Fitch: Fitch, Inc. and any successor thereto, or, if such corporation
shall for any reason no longer perform the functions of a securities rating
agency, "Fitch" shall be deemed to refer to any other nationally recognized
rating agency designated by the Depositor.
Initial Certificate Principal Balance: With respect to each Certificate,
the Certificate Principal Balance of such Certificate as of the Closing Date
as set forth on the face thereof.
Initial Class Certificate Balance: With respect to each Class of
Certificates, the Initial Class Certificate Balance of such Class on the
Closing Date.
Latest Possible Maturity Date: The Distribution Date in December 2027
with respect to the Class A-1 Certificates and the Distribution Date in
November 2026 with respect to the Class A-2, Class A-3 and Class A-4
Certificates.
Majority in Interest: As to any Class of Certificates, the Holders of
Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
Majority Residual Certificate: The Class A-R Certificates other than the
Tax Matters Person Certificate. The Majority Residual Certificate shall have a
Denomination of $99.95.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc.
Officer's Certificate: With respect to any Person, a certificate signed
by the Chairman of the Board, the President, a Managing Director, a Vice
President (however denominated), an Assistant Vice President, the Treasurer,
the Secretary, or one of the Assistant Treasurers or Assistant Secretaries of
such Person (or, in the case of a Person which is not a corporation, signed by
the person or persons having like responsibilities).
Opinion of Counsel: A written opinion of counsel acceptable to an
addressee of such opinion of counsel, who may be salaried counsel for the
Depositor.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation; and
10
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as
the Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial, as owner or as pledgee.
Pass-Through Rate: For any interest bearing Class of Certificates, the
per annum rate set forth in the Preliminary Statement.
Percentage Interest: With respect to any Certificate, other than a Class
A-R Certificate, the undivided percentage ownership interest in the related
Class evidenced by such Certificate, which percentage ownership interest shall
be equal to the Initial Certificate Principal Balance of such Certificate
divided by the Initial Class Certificate Balance of such Class. With respect
to any Class A-R Certificate, the percentage specified on the face of such
Certificate.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(l) of the
Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in or under the laws of the
United States, any State thereof or the District of Columbia, an estate whose
income from sources without the United States is includible 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 or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States fiduciaries have
the authority to control all substantial decisions of the trust unless such
Person has furnished the transferor and the Trustee with a duly completed
Internal Revenue Service Form 4224 or any applicable successor form, (vi) an
"electing large partnership" within the meaning of section 775 of the Code,
and (vii) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause any REMIC hereunder to fail to qualify as
a REMIC at any time that the Certificates are Outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State
thereof or the District of Columbia for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
Person: Any individual, corporation, partnership, limited partnership,
joint venture, bank, limited liability company, association, joint-stock
company, trust (including any beneficiary
11
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
Principal Reserve Fund: The separate Eligible Account created and
initially maintained by the Trustee pursuant to Section 3.06 in the name of
the Trustee for the benefit of the Certificateholders and designated "The Bank
of New York in trust for registered holders of CWMBS, Inc., Resecuritization
Mortgage Certificates, Series 2001-33R". Funds in the Principal Reserve Fund
shall be held in trust for the Certificateholders for the uses and purposes
set forth in this Agreement and shall not be a part of any REMIC created under
this Agreement. Any investment income earned from Permitted Investments made
with funds in the Capitalized Interest Account will be for the account of the
Seller.
Purchase Price: As to any Deposited Underlying Certificate required to
be repurchased on any date pursuant to Section 2.03 or 2.06(c), an amount
equal to the sum of (i) the Underlying Principal Balance thereof and (ii) the
unpaid accrued interest thereon at the underlying pass-through rate from the
Distribution Date immediately following the Underlying Distribution Date on
which interest was last paid on such Deposited Underlying Certificate to the
first day of the month in which the proceeds of such repurchased Certificates
are to be distributed to the related Certificateholders.
Rating Agencies: Moody's and Fitch.
Realized Loss: With respect to a Deposited Underlying Certificate and
Distribution Date, any losses in respect of the related Underlying Mortgage
Loans allocated to such Deposited Underlying Certificate in reduction of the
Underlying Principal Balance thereof on the related Underlying Distribution
Date immediately preceding such Distribution Date, as indicated on the
Underlying Distribution Date Statement for such Underlying Distribution Date.
Record Date: With respect to each Distribution Date, the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date.
Regular Certificates: As described in the Preliminary Statement.
REMIC: A "real estate mortgage investment conduit" as defined in Section
860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
REMICs, which appear at Sections 860A through 860G of Part IV of Subchapter M
of Chapter 1 of Subtitle A of the Code, and related provisions, and U.S.
Department of the Treasury temporary, proposed or final regulations
promulgated thereunder, as the foregoing may be in effect (or with respect to
proposed regulations, are proposed to be in effect) from time to time.
Residual Certificates: As described in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any vice
president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer or any other officer of the Trustee in
its Corporate Trust Department or similar group customarily performing
functions similar to those performed by any of the above designated officers
and,
12
with respect to a particular matter, any officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Agreement.
Securities Intermediary: The meaning specified in Section 8-102(a)(14)
of the Uniform Commercial Code. The Securities Intermediary shall be,
initially, The Bank of New York.
Series: The series designation identified in the related Underlying
Agreement. Each Underlying Agreement has one series designation.
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulation ss. 1.860F-4(d) and Treasury
regulation ss. 301.6231(a)(7)--1T. Initially, the Tax Matters Person shall be
the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.05, which shall be issued to the Trustee on the Closing
Date.
Tax Returns: Any and all other information reports or returns that may
be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
Transfer: Any transfer, sale, pledge, hypothecation or other form of
assignment of any Ownership Interest in a Certificate.
Transfer Affidavit: As defined in Section 4.02(c)(ii).
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
Trust: The trust created by this Agreement.
Trust Fund: The corpus of the Trust consisting of (i) the Deposited
Underlying Certificates, (ii) all distributions on the Deposited Underlying
Certificates payable to the holders thereof after December 26, 2001, (iii)
amounts held from time to time by the Trustee in the Distribution Account and
Principal Reserve Fund, and (iv) any and all proceeds of the foregoing.
Trustee: The Bank of New York, a New York banking corporation, or its
successor in interest, or any successor trustee appointed as herein provided.
Trustee's Fee: Has the meaning specified in Section 6.05.
Underlying Agreements: The Pooling and Servicing Agreement dated as of
December 1, 1993, by and among Chase Mortgage Finance Corporation, as seller,
Chase Home Mortgage, as master servicer and Citibank, N.A., as trustee, the
Pooling and Servicing Agreement dated as of September 1, 1993, between GE
Capital Mortgage Services, Inc., as seller, and servicer, and State Street
Bank and Trust Company, as trustee, a Pooling and Servicing Agreement dated as
of November 1, 1993, by and among the Prudential Home Mortgage Securities
Company, Inc., as seller, The Prudential Home Mortgage Company, Inc., as
servicer and First Trust National
13
Association, as trustee, a Pooling and Servicing Agreement dated as of
November 1, 1993, by and among Residential Funding Mortgage Securities I,
Inc., as seller, Residential Funding Corporation, as master servicer and
Bankers Trust Company as trustee, as each may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Underlying Certificate Seller: Countrywide Home Loans, Inc., a
California corporation, or its successor in interest, as seller under the ▇▇▇▇
of Sale.
Underlying Distribution Date: The "Distribution Date" or "Remittance
Date" under and as defined in each of the Underlying Agreements.
Underlying Distribution Date Statements: With respect to any Deposited
Underlying Certificate, the reports provided to holders thereof in connection
with each related Underlying Distribution Date pursuant to the related
Underlying Agreement.
Underlying Excess Losses: Means "Excess Losses" as defined in the
Underlying Agreements.
Underlying Realized Losses: Means "Realized Losses" as defined in the
Underlying Agreements.
Underlying Mortgage Loans: With respect to each Underlying Trust, the
mortgage loans constituting the assets of such trust.
Underlying Net Interest Shortfalls: Means "Interest Shortfalls" or
"Prepayment Interest Shortfalls" as defined in the Underlying Agreements.
Underlying Principal Balance: With respect to any of the Deposited
Underlying Certificates, as of any Distribution Date (following all
distributions and allocations of losses to be made with respect to any of the
Deposited Underlying Certificates on the related Underlying Distribution Date
immediately preceding such Distribution Date) and as of any date of
determination thereafter until the next succeeding Distribution Date, the
principal balance of such Deposited Underlying Certificate, as indicated on
the Underlying Distribution Date Statement for such Underlying Distribution
Date sent to the Trustee as holder of the Deposited Underlying Certificate.
Underlying Servicer's Certificate: Means the "Servicer's Certificate" as
defined in the Underlying Agreements.
Underlying Trust: The trust fund established by each Underlying
Agreement.
Underlying Trustee: With respect to any Underlying Agreement, the
related trustee under such Underlying Agreement.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, the Voting Rights shall be allocated among Holders of the
Classes of Certificates (and among the Certificates within each Class of
14
Certificates) in proportion to their respective Class Certificate Balances or
Certificate Principal Balances, as the case may be, on such date.
Article II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Deposited Underlying Certificates. The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, convey, sell and assign to the Trustee, on behalf of the Holders of
the Certificates, without recourse, all the right, title and interest of the
Depositor in and to each of the Deposited Underlying Certificates with
appropriate endorsements and other documentation sufficient under the related
Underlying Agreements to transfer each such Deposited Underlying Certificate
to the Trustee, including all distributions thereon payable after December 26,
2001. The Underlying Certificate Seller and the Depositor jointly and
severally agree to transfer to the Trustee promptly upon receipt (by wire
transfer of immediately available funds), any amounts received in respect of
the Deposited Underlying Certificates after the Cut-off Date and all proceeds
of the foregoing.
The transfer of the Deposited Underlying Certificates and all other
assets constituting the Trust Fund is absolute and is intended by the parties
hereto as a sale. The Trustee shall cause the Deposited Underlying
Certificates to be registered as "The Bank of New York, in trust for
registered Holders of CWMBS, Inc. Resecuritization Mortgage Trust, Series
2001-33R, CWMBS, Inc. Resecuritization Mortgage Trust Certificates, Series
2001-33R"; provided, however, that, except to the extent required to have the
Book-Entry Deposited Underlying Certificates reregistered in its own name or a
nominee name, the Trustee shall cause the beneficial ownership interest in the
Book-Entry Deposited Underlying Certificates to be registered with the
Depository in the name of the Securities Intermediary for the account of the
Trustee. The Trustee shall at all times maintain physical possession of the
Definitive Deposited Underlying Certificates in the State of New York, and
shall not assign, sell, dispose of or transfer any interest in the Deposited
Underlying Certificates or any other asset constituting the Trust Fund, except
in accordance with the provisions hereof, or permit the Deposited Underlying
Certificates or any other asset constituting the Trust Fund to be subjected to
any lien, claim or encumbrance arising by, through or under the Trustee or any
person claiming by, through or under the Trustee except in accordance with the
provisions hereof. The Depositor agrees to provide to the Trustee all
documents required for the transfer to the Trustee of the Deposited Underlying
Certificates.
The Trustee is hereby authorized and directed to execute such
documentation as may be required to permit the transfer to the Trust Fund of
the Deposited Underlying Certificates.
It is intended that the conveyance of the Deposited Underlying
Certificates by the Depositor to the Trustee as provided in this Section be,
and be construed as, a sale of the Deposited Underlying Certificates by the
Depositor to the Trustee for the benefit of the Certificateholders. It is,
further, not intended that such conveyance be deemed a pledge of the Deposited
Underlying Certificates by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor. However, in the event that the Deposited
Underlying Certificates
15
are held to be the property of the Depositor, or if for any reason this
Agreement is held or deemed to create a security interest in the Deposited
Underlying Certificates, then it is intended that (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 and the corresponding articles of
the Uniform Commercial Code of any other applicable jurisdiction; (b) the
conveyance provided for in this Section 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, whether
now owned or hereafter acquired, in and to (A) the Deposited Underlying
Certificates, (B) all amounts payable to the holders of the Deposited
Underlying Certificates after the Cut-off Date in accordance with the terms
thereof and (C) all proceeds 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
Distribution Account, whether in the form of cash, instruments, securities or
other property; (c) the registration of the beneficial ownership interest in
the Book-Entry Deposited Underlying Certificates with the Depository in the
name of the Securities Intermediary for the account of the Trustee, the
registration of all the beneficial ownership interest in the Definitive
Deposited Underlying Certificates in the name of the Trustee and the
possession by the Trustee or its agent of such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" or possession by a purchaser or
a person designated by such secured party, for purposes of perfecting the
security interest pursuant to the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; 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 purpose of perfecting such security interest under applicable law. The
Depositor and the Trustee, at the Depositor's direction, 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 Deposited Underlying Certificates and other assets constituting the Trust
Fund described above, 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 the Agreement.
Section 2.02. Acceptance by Trustee. Subject to the next sentence with
respect to the Book-Entry Deposited Underlying Certificates, the Trustee
hereby acknowledges receipt of each of the Deposited Underlying Certificates
and declares that it holds and will hold each of the Deposited Underlying
Certificates, all proceeds of any of the foregoing and all other rights,
titles, or interests of the Trustee in any asset included in the Trust Fund
from time to time, in trust for the use and benefit of all present and future
Certificateholders. Without limitation of the foregoing, the Trustee hereby
confirms that it has confirmation from The Bank of New York, as Securities
Intermediary for the Trustee, that (i) the Book-Entry Deposited Underlying
Certificates have been confirmed by the Depository to have been delivered to
the Trustee, subject to no other interests, and held in the Securities
Intermediary in book-entry form, as a participant in the Depository and (ii)
the Securities Intermediary is holding such Book-Entry Deposited Underlying
Certificates for the account of the Trustee, as owner of the Deposited
Underlying Certificates as trustee for the Certificateholders.
16
Section 2.03. Representations and Warranties of the Underlying
Certificate Seller. The Underlying Certificate Seller hereby represents and
warrants to the Depositor and the Trustee:
(a) With respect to the Deposited Underlying Certificates as of the
Closing Date as follows:
(i) immediately prior to the transfer of the Deposited Underlying
Certificates to the Depositor, the Underlying Certificate Seller was the
sole owner of the Deposited Underlying Certificates free and clear of
any lien, pledge, charge or encumbrance of any kind;
(ii) the Underlying Certificate Seller has not assigned any
interest in the Deposited Underlying Certificates or any distributions
thereon, except as contemplated herein;
(iii) the Underlying Certificate Seller has not agreed to any
amendment to a related Underlying Agreement and has not received a
request for any such amendment;
(iv) the Underlying Certificate Seller has full right to sell the
Deposited Underlying Certificates to the Depositor; and
(v) all conditions precedent and any restrictions upon the
transfer of the Deposited Underlying Certificates provided for in the
Underlying Agreements have been satisfied and the transfer of the
Deposited Underlying Certificates to the Depositor is complete.
(b) Each Deposited Underlying Certificate is entitled to the benefits of
the related Underlying Agreement and represents a beneficial ownership
interest in the related Underlying Mortgage Loans.
(c) Each Deposited Underlying Certificate is a "qualified" mortgage
within the meaning of Section 860(b)(a)(3) of the Code.
The representations and warranties set forth in this Section 2.03(a)
shall survive the transfer and assignment of the Deposited Underlying
Certificates by the Depositor to the Trustee. Upon discovery by the Underlying
Certificate Seller, the Depositor or a Responsible Officer of the Trustee of a
breach of any of the foregoing representations and warranties which materially
and adversely affects the interests of the Certificateholders in one or more
of the Deposited Underlying Certificates, the Underlying Certificate Seller,
the Depositor or the Trustee shall give prompt written notice to the other
parties and to the Certificateholders. The Underlying Certificate Seller shall
cure such breach in all material respects or, if such breach cannot be cured
within 90 days after notice to or discovery by the Underlying Certificate
Seller, the Underlying Certificate Seller shall repurchase the Deposited
Underlying Certificate or Certificates related to such breach from the Trustee
on the Distribution Date immediately following the date on which the
Underlying Certificate Seller is so directed by Holders of a Majority in
Interest of the Certificates related to the applicable Deposited Underlying
Certificate or Certificates. Any such repurchase of the Deposited Underlying
Certificates by the Underlying Certificate Seller shall be accomplished on the
Distribution Date of repurchase, by the payment on the Business Day prior
17
to such Distribution Date by the Underlying Certificate Seller to the Trustee
of the Purchase Price (it being understood that all distributions made on the
Deposited Underlying Certificates up to immediately prior to the Distribution
Date of such repurchase shall be property of the Trust Fund). The payment of
the Purchase Price shall be considered a prepayment in full of the applicable
Deposited Underlying Certificates and shall be delivered to the Trustee for
deposit in the Distribution Account in accordance with the provisions of
Section 3.02 hereof. Upon such deposit into such Distribution Account, the
repurchased Deposited Underlying Certificates shall be released to the
Underlying Certificate Seller, and the Trustee and the Depositor shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as shall be reasonably requested and provided by the Underlying
Certificate Seller to vest in the Underlying Certificate Seller, or its
designee or assignee, title to the Deposited Underlying Certificates
repurchased pursuant hereto. The obligation of the Underlying Certificate
Seller to cure such breach of representations and warranties or effect such
repurchase of the Deposited Underlying Certificates shall constitute the sole
remedy respecting such breach available to Certificateholders or the Trustee
on behalf of Certificateholders.
(d) With respect to the Underlying Certificate Seller:
(i) The Underlying Certificate Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of California with full power and authority to execute, deliver
and perform this Agreement.
(ii) This Agreement and the ▇▇▇▇ of Sale have been duly
authorized, executed and delivered by the Underlying Certificate Seller
and constitute the legal, valid and binding agreement of the Underlying
Certificate Seller, enforceable in accordance with their terms, except
as enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally or by
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(iii) Neither the execution nor the delivery of this Agreement and
the ▇▇▇▇ of Sale nor the issuance, delivery and sale of the
Certificates, nor the consummation of any other of the transactions
contemplated herein nor the fulfillment of the terms of this Agreement
and the ▇▇▇▇ of Sale or the Certificates will result in the breach of
any term or provision of the charter, by-laws or resolutions of the
Underlying Certificate Seller or conflict with, result in a breach,
violation or acceleration of or constitute a default under, the terms of
any material indenture or other agreement or instrument to which the
Underlying Certificate Seller is a party or by which it is bound, or any
statute, order or regulation applicable to the Underlying Certificate
Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Underlying Certificate
Seller.
(iv) There are no actions or proceedings against, or
investigations of, the Underlying Certificate Seller pending, or, to the
knowledge of the Underlying Certificate Seller, threatened, before any
court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, the ▇▇▇▇ of Sale or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions
18
contemplated by this Agreement, or (C) which might materially and
adversely affect the validity or enforceability of this Agreement, the
▇▇▇▇ of Sale or the Certificates.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(b) shall survive delivery of the Trust Fund to the
Trustee. Upon discovery by the Underlying Certificate Seller, the Depositor or
a Responsible Officer of the Trustee of a breach of any of the foregoing
representations and warranties which breach materially and adversely affects
the interests of the Certificateholders, the party discovering such breach
shall give prompt written notice to the other parties and to the Rating
Agencies.
Section 2.04. Issuance of Certificates. The Trustee acknowledges the
receipt of the Deposited Underlying Certificates, and concurrently with such
receipt, has caused to be duly executed, authenticated and delivered to or
upon the written order of the Depositor, in exchange for the Deposited
Underlying Certificates and all other assets included or to be included in the
Trust Fund, Certificates in authorized denominations which evidence ownership
of the entire Trust Fund. The Trustee declares that it holds and will hold
such Deposited Underlying Certificates and any proceeds thereof in trust for
the exclusive use and benefit of all present and future Certificateholders.
Section 2.05. REMIC Designations and Related Matters.
(a) The Class A-1, Class A-2, Class A-3, and Class A-4 Certificates are
hereby designated as "regular interests," and the Class A-R Certificates are
hereby designated as the single class of "residual interests," in the REMIC
for purposes of Sections 860G(a)(1) and 860G(a)(2) of the Code. The "latest
possible maturity date" of each class of REMIC regular interests will be the
Latest Possible Maturity Date.
(b) The Closing Date will be the "Start-up Day" of the REMIC hereunder
within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Tax Matters Certificate is hereby designated as
the "tax matters person" of the REMIC hereunder within the meaning of Section
6231(a)(7) of the Code. The Trustee is hereby appointed to act as agent of the
Tax Matters Person and, in such capacity, the Trustee hereby agrees to perform
all obligations of the Tax Matters Person hereunder. The Trustee shall be the
agent of any designated Tax Matters Person pursuant to this Section 2.06(c),
regardless of whether such Tax Matters Person is the initial Holder of the Tax
Matters Certificate or any subsequent Holder of the Tax Matters Certificate.
Section 2.06. Representations, Warranties and Covenants of the
Depositor. (a) The Depositor hereby represents and warrants to the Trustee
that as of the Closing Date:
(i) The Depositor acquired the Deposited Underlying Certificates
in good faith without notice of any liens (including, without
limitation, federal tax liens), charges, claims, encumbrances or
security interests; immediately prior to the transfer of the Deposited
Underlying Certificates from the Depositor to the Trust, the Depositor
was the sole owner thereof, free and clear of any liens and security
interests charges or encumbrances; and upon execution and delivery by
the Trustee of this Agreement, the
19
Trustee will acquire the Deposited Underlying Certificates free of any
lien, charges, claims or encumbrances;
(ii) The Depositor has not assigned any interest or participation
in the Deposited Underlying Certificates except as contemplated by this
Agreement and the Underlying Agreements (or, if any such interest or
participation has been assigned, it has been released);
(iii) The Depositor has full right to sell the Deposited
Underlying Certificates to the Trustee;
(iv) All conditions precedent and any restrictions upon the
transfer of the Deposited Underlying Certificates provided for in the
Underlying Agreements have been satisfied, and the transfer of the
Deposited Underlying Certificates to the Trust is complete;
(v) The Depositor has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware with full power and authority to own its properties and conduct
its business and to perform its obligations under this Agreement;
(vi) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Depositor to perform its obligations under this Agreement
or the financial condition of the Depositor. The Depositor is solvent
and shall remain solvent after giving effect to the transfer of the
Deposited Underlying Certificates to the Trustee and the execution and
delivery of this Agreement will not result in a breach or default under
any agreement to which the Depositor is a party or to which its
properties are subject or under any of the Depositor's organizational
documents, which breach, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Depositor to perform its obligations under this Agreement
or the financial condition of the Depositor;
(vii) This Agreement has been duly authorized, executed and
delivered by the Depositor and this Agreement, assuming due
authorization, execution and delivery by the Trustee, constitutes a
valid, legal and binding obligation of the Depositor, enforceable
against the Depositor in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, receivership, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(viii) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of any court or
governmental authority or agency is required for
20
the consummation by the Depositor of the transactions contemplated by
this Trust Agreement, except such as have been obtained;
(ix) Each Deposited Underlying Certificate is entitled to the
benefits of the related Underlying Agreement and represents a beneficial
ownership interest in the related Underlying Mortgage Loans; and
(x) Each Deposited Underlying Certificate is a "qualified
mortgage" within the meaning of Section 860(G)(a)(3) of the Code.
(b) The Depositor hereby assigns to the Trustee for the benefit of the
Certificateholders all of its rights, title and interest in respect of the
▇▇▇▇ of Sale, including the Depositor's right to require the Underlying
Certificate Seller to cure any material breach of a representation or warranty
by the Underlying Certificate Seller with respect to each Deposited Underlying
Certificate or repurchase such Deposited Underlying Certificate.
(c) It is understood and agreed that the representations and warranties
set forth in this Section 2.06 shall survive delivery of the Deposited
Underlying Certificates to the Trustee and shall inure to the benefit of the
Trustee for the benefit of the Certificateholders. Within 90 days of the
earlier of the discovery by the Depositor of, or receipt by the Depositor of
written notice from the Trustee or any Certificateholder, specifying in
reasonable detail the existence of a breach of any representation or warranty
of the Depositor set forth in Section 2.06(a), or of the Underlying
Certificate Seller under the ▇▇▇▇ of Sale, assigned to the Trustee pursuant to
Section 2.06(b) for the benefit of the Certificateholders, which materially
and adversely affects the value of any Deposited Underlying Certificate or the
interest of any Certificateholder therein, the Depositor shall at its option
(i) (A) in all material respects cure such breach or (B) purchase the affected
Deposited Underlying Certificate from the Trust Fund or (ii) cause the
Underlying Certificate Seller at its option (A) in all material respects to
cure such breach or (B) to purchase the affected Deposited Underlying
Certificate from the Trust Fund. The purchase of any Deposited Underlying
Certificate from the Trust Fund pursuant to this Section 2.06(c) shall be
effected at the Purchase Price of such Deposited Underlying Certificate
determined as of the date of such repurchase. Such Purchase Price shall be
deposited into the Distribution Account.
It is understood and agreed that the provisions set forth in this
Section 2.06(c) shall constitute the sole remedies available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any breach of the representations and warranties of the Depositor
contained in this Section 2.06(a) or the representations and warranties of the
Seller contained in the either the ▇▇▇▇ of Sale or Section 2.03.
Article III
ADMINISTRATION OF THE TRUST FUND
Section 3.01. Collection of Payments on the Deposited Underlying
Certificates; Distribution Account. (a) The Trustee shall establish and
maintain a trust account (the "Distribution Account") entitled "The Bank of
New York, in trust for registered holders of CWMBS, Inc. Resecuritization
Mortgage Trust, Series 2001-33R, Resecuritization Mortgage
21
Trust Certificates, Series 2001-33R Distribution Account", in which the
Trustee shall, subject to the terms of this paragraph, deposit each
distribution received by the Trustee with respect to the Deposited Underlying
Certificates on the day of receipt and shall hold such amounts in trust for
the benefit of the Certificateholders. The Trustee also shall deposit in the
Distribution Account any amount of net losses required to be reimbursed by the
Trustee resulting from investments of amounts on deposit in the Distribution
Account, pursuant to Section 3.01(c) below. With respect to distributions on
each Deposited Underlying Certificate for any Underlying Distribution Date,
the Trustee may conclusively rely on the related Underlying Distribution Date
Statements and the Trustee shall have no obligation to recompute, recalculate
or verify any information in such Underlying Distribution Date Statements.
(b) The Trustee may from time to time (in accordance with the terms
herein) withdraw funds from the Distribution Account for the following
purposes:
(i) On each Distribution Date, to pay to the Trustee the Trustee's
Fee and any other amounts reimbursable or payable to the Trustee
hereunder pursuant to Sections 6.05, 6.11 and 6.13;
(ii) to make distributions in the amounts and in the manner
provided for in Section 3.02 and to make any payments required to be
made under Section 5.03;
(iii) to withdraw any amounts that were deposited into the
Distribution Account in error; and
(iv) to clear and terminate the Distribution Account upon the
termination of this Agreement.
(c) The Trustee shall invest the funds in the Distribution Account in
Eligible Investments selected by it, which shall mature not later than the
Business Day immediately preceding the next Distribution Date (or if the
Trustee in its commercial capacity is the obligor of such Eligible
Investments, such Eligible Investments shall mature not later than the next
Distribution Date) and shall not be sold or disposed of prior to their
respective maturities; provided, however, so long as The Bank of New York is
acting as trustee hereunder, the Distribution Account shall be invested in the
Eligible Investment described in subsection (x) of the definition of Eligible
Investments. All such Eligible Investments shall be made in the name of the
Trustee, or its nominee, in trust for the Holders of the Certificates. All
income and gain received from any such investment shall be for the benefit of
the Trustee; provided, that if such investments result in a net loss for any
period, the Trustee shall deposit in the Distribution Account within two
Business Days such amounts as are necessary to cover all such losses.
(d) Upon a determination by the Trustee that the final distribution
shall be made in respect of a Deposited Underlying Certificate, the Trustee
shall take such steps as may be necessary in connection with the final payment
thereon in accordance with the terms and conditions of the related Underlying
Agreement. The Trustee shall promptly deposit in the Distribution Account the
final distribution received upon presentment and surrender of the related
Deposited Underlying Certificates.
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(e) In connection with any distribution due on the Deposited Underlying
Certificates on any Distribution Date, if (i) the amount of any distribution
varies from the amount due thereon pursuant to the terms of the related
Underlying Agreement, (ii) the Trustee shall not have received a distribution
by the close of business on such Distribution Date, or (iii) a Responsible
Officer of the Trustee shall gain actual knowledge of any default under the
related Underlying Agreement, the Trustee shall promptly notify the Depositor,
the Underlying Certificate Seller and the affected Certificateholders, and
shall, subject to the provisions of Article VI hereof, pursue such remedies as
may be available to it as holder of the Deposited Underlying Certificates in
accordance with the terms of the related Underlying Agreement, including the
prosecution of any claims in connection therewith. The legal fees and expenses
incurred by the Trustee in connection with any action taken by the Trustee to
enforce payment of such distributions will be reimbursable to the Trustee out
of the proceeds of any such action prior to such amounts being distributed to
Certificateholders. In the event that the Trustee has reason to believe that
the proceeds of any such legal action may be insufficient to reimburse it for
its projected legal fees and expenses, the Trustee shall notify the
Certificateholders that it is not obligated to pursue any such available
remedies unless indemnity, reasonably satisfactory to the Trustee, for its
reasonable legal fees and expenses is provided by Certificateholders. In the
event any such reasonably satisfactory indemnity is provided to the Trustee,
the Trustee shall take such action as the Trustee shall deem to be appropriate
under the circumstances. To the extent that the Trustee shall not have
received any such distribution by the close of business on such Distribution
Date, such Delayed Underlying Distributions shall be distributed on the
immediately succeeding Distribution Date in the manner set forth in Section
3.04(f).
Section 3.02. Distributions.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Available Interest Funds for each Class of
Certificates for such Distribution Date. The Trustee shall apply the Available
Interest Funds for each Class of Certificate to distributions of interest on
such Certificates, in the following order of priority:
(i) to each Class of Certificates, an amount equal to the related
Class Optimal Interest Distribution Amount for such Distribution Date,
any shortfall being allocated among such classes in proportion to the
amount of the Class Optimal Interest Distribution Amount that would have
been distributed in the absence of such shortfall; and
(ii) the amount remaining (if any) to the Class A-R Certificates,
as additional interest.
(b) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Available Principal Funds for each Class of
Certificates for such Distribution Date. The Trustee shall apply the Available
Principal Funds for each Class of Certificates to distributions in respect of
principal on such Certificates as follows:
(i) with respect to Available Principal Funds related to the Class
A-1 Certificates, to the Class A-1 Certificates until its Class
Certificate Balance is reduced to zero;
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(ii) with respect to Available Principal Funds related to the
Class A-2 Certificates, to the Class A-2 Certificates until its Class
Certificate Balance is reduced to zero;
(iii) with respect to the Available Principal Balance related to
the Class A-3 Certificates, to the Class A-3 Certificates until its
Class Certificate Balance is reduced to zero;
(iv) with respect to the Available Principal Balance related to
its Class A-4 Certificates, to the Class A-4 Certificates until its
Class Certificate Balance is reduced to zero; and
(v) the amount remaining (if any) after distributions in clauses
(i) through (iv) to the Class A-R Certificates, as excess cash.
(c) Reserved.
(d) All distributions made with respect to each Class of Certificates on
each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Payments in respect of each Class of Certificates on each Distribution Date
will be made to the Holders of the respective Certificates of record on the
related Record Date (except as otherwise provided in the last sentence of this
Section 3.02(d) or in Article VII respecting the final distribution on such
Class), and shall be made by wire transfer of immediately available funds to
the account of any such Holder at a bank or other entity having appropriate
facilities therefor, if such Holder shall have so notified the Trustee in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Certificates having
either a minimum initial aggregate Class Certificate Balance of $1,000,000 or
holds 100% of a Class of Certificate or otherwise by check mailed by first
class mail to the address of such Holder 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.
(e) The rights of the Certificateholders to receive distributions in
respect of the Certificates, and all interests of the Certificateholders in
such distributions, shall be as set forth in this Agreement. Neither the
Holders nor the Trustee shall in any way be responsible or liable to the
Holders of any other Certificates in respect of amounts properly previously
distributed on the Certificates.
(f) Notwithstanding anything to the contrary herein, if, on any
Distribution Date, the Trustee is not in receipt of distributions on the
Deposited Underlying Certificates for the related Underlying Distribution Date
(any such late distributions, "Delayed Underlying Distributions"), then, to
the extent such Delayed Underlying Distributions are received by the fourth
Business Day following such Distribution Date, on the fifth Business Day
following such Distribution Date the Trustee will distribute such Delayed
Underlying Distributions to each holder of the Certificate entitled thereto on
such Distribution Date. If Delayed Underlying Distributions are received after
the fourth Business Day following a Distribution Date, such Delayed Underlying
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Distributions will be distributed on the following Distribution Date to each
holder of a Certificate entitled thereto on such original Distribution Date.
Section 3.03. Statements to Certificateholders and the Depositor.
Pursuant to Section 3.02(a), the Trustee shall prepare, and within five (5)
Business Days of each such Distribution Date, forward by mail to the
Depositor, each Holder of a Certificate, the Underlying Certificate Seller and
any other purchaser with respect to the Certificates designated by the
Depositor in writing, a statement as to the distributions on the Certificates
made on such Distribution Date and Delayed Underlying Distributions applied
with respect to such Distribution Date setting forth:
(a) the amount of the distribution made on such Distribution Date to the
Holder of each Certificate allocable to principal for such Distribution Date;
(b) the amount of the distribution made on such Distribution Date to the
Holder of each Certificate allocable to interest and the aggregate amount of
Class Optimal Interest Distribution Amount for each Class;
(c) the Class Certificate Balance of each such Class of Certificates,
after giving effect to the distributions of principal and allocations of
Realized Losses made on such Distribution Date;
(d) Available Interest Funds and Available Principal Funds for each
Class of Certificates for such Distribution Date and the amount (if any) by
which Available Principal Funds for such Class of Certificates have been
reduced on account of the payment of certain expenses, liabilities and taxes
described in the definition thereof;
(e) the amount of Underlying Net Interest Shortfalls for each Deposited
Underlying Certificates and the amount of any interest shortfall with respect
to each Class of Certificates.
(f) (1) the aggregate Underlying Principal Balance for each of the
Deposited Underlying Certificates as of the related Underlying Distribution
Date immediately preceding such Distribution Date (after giving effect to the
allocations and distributions made on such Underlying Distribution Date), (2)
the aggregate amount of all distributions received in respect of each of the
Deposited Underlying Certificates as of such the related Underlying
Distribution Date immediately preceding such Distribution Date (after giving
effect to the allocations and distributions made on such Underlying
Distribution Date), with a breakout showing the portion of such distributions
reflecting principal (both principal payments and principal prepayments) and
the portion thereof reflecting other distributions, including interest, (3)
the aggregate amount of losses on the Underlying Mortgage Loans allocated to
the Deposited Underlying Certificates as of the related Underlying
Distribution Date immediately preceding such Distribution Date (after giving
effect to the allocations and distributions made on such Underlying
Distribution Date), (4) with respect to each Series of Deposited Underlying
Certificates, the number of Underlying Mortgage Loans outstanding as of the
related Underlying Distribution Date immediately preceding such Distribution
Date, (5) with respect to each Series of Deposited Underlying Certificates,
the outstanding mortgage pool scheduled principal balance as of the related
Underlying Distribution Date immediately preceding such Distribution Date, and
(6) with respect to each Series of Deposited Underlying Certificates, the
number and aggregate principal
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balance of Underlying Mortgage Loans (A) delinquent 30 to 60 days, (B)
delinquent 61 to 90 days, (C) delinquent 91 days or more, (D) in foreclosure
and (E) real estate owned as of the related Underlying Distribution Date
immediately preceding such Distribution Date;
(g) the amounts of any Realized Losses including Excess Losses allocated
to each of the Class A-1 Certificates, the Class A-2 Certificates, the Class
A-3 Certificates and the Class A-4 Certificates and any related reductions in
the Class Certificate Balances of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class A-4 Certificates for
such Distribution Date; and
(h) any additional amount distributed to the Holders of the Class A-R
Certificates on such Distribution Date.
The Trustee shall upon written request include copies of the most
current Underlying Distribution Date Statements with each statement delivered
pursuant to this Section 3.03. The information furnished above shall, in
addition to being forwarded by mail, be sent by facsimile to any Holder of any
Certificates if it has notified the Trustee that it wishes to receive such
information on each Distribution Date by facsimile. The Trustee shall also
make the information furnished above available to Certificateholders via the
Trustee's website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇.
Within a reasonable period of time after the end of each calendar year,
the Trustee shall, upon written request, furnish to each Person who at any
time during the calendar year was a Holder of a Certificate a statement
containing the information set forth in subclauses (a) and (b) above,
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 are in force.
The Trustee shall, upon the reasonable written request of a
Certificateholder, furnish to such Certificateholder during the term of this
Agreement, such periodic, special, or other reports or information, whether or
not provided for herein, with respect to the Certificateholder, or otherwise
with respect to the purposes of this Agreement, all such reports or
information to be provided at the expense of the Certificateholder in
accordance with such reasonable and explicit instructions and directions as
the Certificateholder may provide. For purposes of this Section 3.03, the
Trustee's duties are limited to the extent that the Trustee receives complete
and timely reports as required from the trustee under each of the Underlying
Agreements. The Trustee shall use best efforts to obtain any reports that are
required to be provided to it pursuant to the Underlying Agreements. The
Trustee may rely upon the Underlying Distribution Date Statements and any
other reports or information received from the Underlying Trustees and shall
have no obligation to verify, confirm or recalculate any information provided
therein.
Section 3.04. Allocation of Realized Losses.
(a) On or prior to the beginning of the second Business Day prior to
each Distribution Date, the Trustee shall determine the principal and interest
portions of Allocated Underlying Realized Losses for such Distribution Date
and for each Class of Certificate. The Trustee shall
26
make such determination on the basis of amounts reported to the Underlying
Trustee by the servicer or master servicer of the Deposited Underlying
Certificates in the related Underlying Servicer's Certificate.
(b) The Certificates of each Class will be allocated all Allocated
Underlying Realized Losses allocated to the related Deposited Underlying
Certificates with respect to any Distribution Date.
(c) Any Allocated Underlying Realized Loss allocated to a Class of
Certificates pursuant to Section 3.04(b) above shall be allocated among the
Certificates of such Class in proportion to their respective Certificate
Principal Balances.
(d) Any allocation of the principal portion of Allocated Underlying
Realized Losses to a Certificate pursuant to Section 3.04(b) above shall be
accomplished by reducing the Certificate Principal Balance thereof immediately
following the distributions made on the related Distribution Date in
accordance with the definition of "Certificate Principal Balance". Any
allocation of the interest portion of Allocated Underlying Realized Losses to
a Certificate pursuant to Section 3.04(b) above shall be accomplished by
reducing the interest distributions on the related Class of Certificates,
based on the interest amounts otherwise distributable on such Class when
calculated solely on the basis of the applicable Pass-Through Rate.
Section 3.05. Notices to Trustee. Upon receipt of notice of the final
distribution on any Deposited Underlying Certificates, the Trustee shall
surrender such Deposited Underlying Certificates to the Underlying Trustee for
such Deposited Underlying Certificates for payment of the final distribution
thereon.
Section 3.06. Access to Certain Documentation and Information. The
Trustee shall provide the Certificateholders with access to a copy of each
report, if any, received by it as holder of the Deposited Underlying
Certificates under the Underlying Agreement. The Trustee shall also provide
the Depositor and the Underlying Certificate Seller with reasonable access to
any such report and to all written reports, documents and records required to
be maintained by the Trustee in respect of its duties hereunder. Such access
shall be afforded without charge but only upon reasonable request evidenced by
written notice received by the Trustee two Business Days prior to the date of
such proposed access and during normal business hours at offices designated by
the Trustee. In the event that any Certificateholder, the Depositor or the
Underlying Certificateholder shall request a copy of any report, document or
record to which access shall be provided pursuant to this Section 3.06, the
Trustee shall be entitled to receive from such requesting party reimbursement
for the reasonable expense of copying such report, document or record.
The Underlying Certificate Seller shall provide the Trustee with access
to a copy of each Underlying Agreement received by it.
Section 3.07. Principal Reserve Fund.
(a) The Trustee shall establish and maintain, on behalf of the
Certificateholders, a Principal Reserve Fund in the name of the Trustee. On
the Closing Date, the Underlying Certificate Seller shall deposit into the
Principal Reserve Fund $100.00. The Principal Reserve
27
Fund shall be treated as an "outside reserve fund" under applicable Treasury
regulations and shall not be part of the REMIC. Any investment earnings on the
Principal Reserve Fund shall be treated as owned by the Underlying Certificate
Seller and will be taxable to the Underlying Certificate Seller.
On the Business Day before the Distribution Date occurring in January
2002, the Trustee shall transfer from the Principal Reserve Fund to the
Distribution Account the funds on deposit in the Principal Reserve Fund (net
of any investment earnings on deposit in the Principal Reserve Fund, which
shall be transferred to the Underlying Certificate Seller) and shall
distribute such amount to the Certificates on the Distribution Date pursuant
to Section 3.02. The Trustee shall then terminate the Principal Reserve Fund.
Article IV
THE CERTIFICATES
Section 4.01. The Certificates. The Certificates in the aggregate will
represent the entire beneficial ownership interest in the Deposited Underlying
Certificates and all other assets included in the Trust Fund.
The Certificates will be substantially in the forms annexed hereto as
Exhibits A-1 through A-5. The Certificates of each Class will be issuable in
registered form only, in the minimum denominations specified in the Preliminary
Statement and in integral multiples in excess thereof (except that one
Certificate in each Class other than Class A-R may be issued in a different
amount which must be in excess of the applicable minimum denomination and, in
addition, one Class A-R Certificate representing the Tax Matters Person
Certificate may be issued in a different amount). Each Certificate will share
ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed, authenticated
and delivered by the Trustee to or upon the written order of the Depositor.
The Certificates shall be executed by manual or facsimile signature on behalf
of the Trustee by an authorized signatory. Certificates bearing the manual or
facsimile signatures of individuals who were at any time the proper officers
of the Trustee shall bind the Trustee, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication
and delivery of such Certificates or did not hold such offices at the date of
such Certificates. 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 substantially in the form provided
herein executed by the Trustee by manual signature, and such certificate of
authentication shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section 4.02. Registration of and Limitations on Transfer and Exchange
of Certificates. The Trustee shall cause to be kept a Certificate Register for
the Certificates 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. The Depositor
28
shall have the right to obtain a copy of the Certificate Register upon written
request to the Trustee.
(a) Reserved.
(b) No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA or a plan
or arrangement subject to Section 4975 of the Code, nor a person acting on
behalf of any such plan or arrangement, nor using the assets of any such plan
or arrangement to effect such transfer, or (ii) 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 are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA, or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement, or
using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee and addressed to the Trustee, which Opinion of Counsel shall
not be an expense of either the Trustee or the Trust Fund, to the effect that
the purchase or holding of such ERISA-Restricted Certificate will not result
in a non-event under ERISA and the Code and will not subject the Trustee to
any obligation in addition to those expressly undertaken in this Agreement or
to any liability. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the delivery to
the Trustee of an Opinion of Counsel satisfactory to the Trustee as described
above shall be void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 4.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of
29
any Residual Certificate unless, in addition to the certificates
required to be delivered to the Trustee under subparagraph (b) above,
the Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form
attached hereto as Exhibit D.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
4.02(d) shall be absolutely null and void and shall vest no rights in
the purported Transferee. If any purported transferee shall become a
Holder of a Residual Certificate in violation of the provisions of this
Section 4.02(d), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of
registration of Transfer of such Residual Certificate. The Trustee shall
be under no liability to any Person for any registration of Transfer of
a Residual Certificate that is in fact not permitted by Section 4.02(c)
and this Section 4.02(d) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as
the Transfer was registered after receipt of the related Transfer
Affidavit and Transferor Certificate. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder
or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after
either such time. Any such payments so recovered by the Trustee shall be
paid and delivered by the Trustee to the last preceding Permitted
Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 4.02(d) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Underlying Certificate Seller or the Depositor, to the effect that the
elimination of such restrictions will not cause the REMIC hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an
30
Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is
not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 4.02(e) in connection with transfer shall be
at the expense of the parties to such transfers.
(e) Except as provided below, the Certificates that are Book-Entry
Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (i) registration of the
Certificates that are Book-Entry Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository for all purposes of this Agreement (including the
payment of principal and interest on the Book-Entry Certificates and for the
giving of instructions or directions hereunder) as the sole holder of the
Book-Entry Certificates and shall have no obligations to Depository
Participants or the beneficial owners of the Book-Entry Certificates and (vi)
the Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect
participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificateholders.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Book-Entry Certificates, such direction or consent may be given
by Certificate Owners (acting through the Depository and the Depository
Participants) owning Book-Entry Certificates evidencing the requisite
percentage of principal amount of such Class of Certificates.
(f) All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificateholders it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) the Depositor advises the Trustee that the Depository is no
longer willing or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Certificates and the Depositor is
unable to locate a qualified successor, (y) the Depositor, at its sole option,
advises the Trustee that it elects to terminate the book-entry system with
respect to such Certificates through the Depository or (z) after the
occurrence and continuation of an Event of Default, Certificate Owners of such
Book-Entry Certificates having not less than 51% of the Voting Rights
evidenced by any Class of Book-Entry Certificates advise the Trustee and the
31
Depository in writing through the Depository Participants that the
continuation of a book-entry system with respect to Certificates of such Class
through the Depository (or its successor) is no longer in the best interests
of the Certificate Owners of such Class, then the Trustee shall notify all
Certificate Owners of such Certificates, through the Depository, of the
occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners of such Class requesting the same. The
Depositor shall provide the Trustee with an adequate inventory of certificates
to facilitate the issuance and transfer of Definitive Certificates. Upon
surrender to the Trustee of any such Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall authenticate and deliver such Definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in
delivery of such instructions and each may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of such
Definitive Certificates, the Trustee shall recognize the Holders of such
Definitive Certificates as Certificateholders hereunder.
(g) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate that is not a Book-Entry
Certificate at the Corporate Trust Office of the Trustee, the Trustee shall
execute, authenticate and deliver, in the name of the designated Transferee or
Transferees, one or more new Certificates of the same Class of a like
aggregate Percentage Interest.
(h) At the option of the Holder thereof, any Definitive Certificate may
be exchanged for other Certificates of the same Class with authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at the Corporate Trust Office of the Trustee
maintained for such purpose pursuant to Section 6.14. 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 transfer or exchange shall (if so required by the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer in the
form satisfactory to the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing.
(i) No service charge to the Certificateholders shall be made for any
transfer or exchange of Certificates, but the Trustee may require 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.
(j) All Certificates surrendered for transfer and exchange shall be
canceled or destroyed by the Trustee in accordance with its customary
procedures.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates. If (i)
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 (ii) there is delivered to the Trustee such security or
indemnity as may be required by it to save it harmless, then, in the absence
of actual knowledge by 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 the same Class and of like denomination and
Percentage Interest. Upon the issuance of any new Certificate under this
Section, the
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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 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 4.04. Persons Deemed Owners. Subject to Section 4.02, prior to
due presentation of a Definitive Certificate for registration of transfer, the
Trustee and any agent of the Trustee may treat the Person in whose name any
Certificate is registered as of the related Record Date as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
3.02 and at any other time for all other purposes whatsoever, and neither the
Trustee nor any agent of the Trustee shall be affected by notice to the
contrary.
Section 4.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this
Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor shall request such information in writing from the Trustee, then the
Trustee shall, within ten Business Days after the receipt of such request,
provide the Depositor or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 4.06. 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 or the city in which the Corporate Trust Office of
the Trustee is located, where Certificates may be surrendered for registration
of transfer or exchange. The Trustee initially designates its Corporate Trust
Office for such purposes. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
Article V
THE DEPOSITOR
Section 5.01. Liability of the Depositor. The Depositor shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement and undertaken hereunder by the Depositor.
Section 5.02. Merger or Consolidation of the Depositor. Subject to the
following paragraph, the Depositor will keep in full effect its existence,
rights and franchises as a corporation under the laws of the jurisdiction of
its creation. The Depositor will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which
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such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or the Certificates and to perform its duties
under this Agreement.
The Depositor may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case
any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any Person succeeding to the business of the Depositor,
shall be the successor of the Depositor 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.
Section 5.03. Limitation on Liability of the Depositor and Others. None
of the Depositor or any of the directors, officers, employees or agents of the
Depositor shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor or any such person against any breach of warranties, representations
or covenants made herein or against any liability which would otherwise be
imposed by reason 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 and any director, officer, employee or agent
of the Depositor may rely in good faith on any document of any kind which,
prima facie, is properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor and any director, officer, employee
or agent of the Depositor shall be indemnified and held harmless by the Trust
Fund against any loss, liability or expense incurred in connection with any
audit, controversy or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement or the Certificates
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement), 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. The Depositor shall not be under any
obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, in its
opinion, does not involve it in any expense or liability; provided, however,
that the Depositor may in its discretion undertake any such action which it
may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom (except 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) shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor shall be entitled to be reimbursed therefor
from the Distribution Account.
Article VI
THE TRUSTEE
Section 6.01. Duties of Trustee. The Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Agreement.
Any permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
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The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which 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 (but, except with respect to
such documents or instruments prepared by The Bank of New York in any
capacity, need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein). If any such instrument is found
not to conform to the requirements of this Agreement in a material manner, the
Trustee shall take such action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to the Trustee's
satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, 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 that conform to the requirements of this
Agreement;
(ii) 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 it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) Except as provided in clause (v) of this Section 6.01, the
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with
the direction of Holders of Certificates entitled to at least 25% of the
Voting Rights 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;
(iv) Except to the extent expressly provided herein, no provision
in this Agreement shall require the Trustee to expend or risk its own
funds or otherwise incur any personal financial liability in the
performance of any of its duties as Trustee hereunder, or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that repayment of funds or indemnity
reasonably satisfactory to it against such risk or liability is not
reasonably assured to it; and
(v) Except with respect to the collection of payments on the
Deposited Underlying Certificates as provided in Section 3.01, in
exercising any right or power solely as holder of the Deposited
Underlying Certificates (other than any right or power specifically
conferred upon the Trustee under this Agreement), the Trustee shall,
subject to Sections 8.01 and 8.07 hereof, request the direction of the
Certificateholders and shall
35
be fully protected in acting in good faith in accordance with the
written directions of a majority of the Certificateholders of each
affected Class.
Section 6.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 6.01:
(i) The Trustee may request and rely conclusively upon and shall
be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably 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 of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant
to the provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby;
(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) 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 to do so by
Holders of Certificates entitled to at least 25% of the Voting Rights;
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 such
Certificateholders, the Trustee may require reasonable indemnity against
such expense, or liability from such Certificateholders as a condition
to taking any such action;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys or a custodian and the Trustee shall not be responsible for
any negligence or misconduct on the part of any agent, attorney or
custodian appointed with due care by it hereunder; provided, however, no
such agent, attorney or custodian, shall be appointed by the Trustee
hereunder without the prior written consent of the Depositor, such
consent not to be unreasonably withheld;
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(vii) The Trustee may act as trustee under agreements for the
benefit of holders of the Deposited Underlying Certificates; and
(viii) The Trustee shall not be deemed to have notice of any
default, event of default or any breach by the Depositor of any
representation, warranty or covenant, unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default, event of default or breach is
received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Certificates and this Agreement.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
Section 6.03. Trustee Not Liable for Certificates or Deposited
Underlying Certificates. The recitals contained herein and in the Certificates
(other than the signature of the Trustee, the authentication of the Trustee on
the Certificates, the acknowledgments of the Trustee contained in Article II
and the representations and warranties of the Trustee in Section 6.20) shall
be taken as the statements of the Depositor or the Underlying Certificate
Seller, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations or warranties as to
the validity or sufficiency of this Agreement (other than as specifically set
forth in Section 6.20) or of the Certificates (other than the signature of the
Trustee and authentication of the Trustee on the Certificates). The Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds, other than any funds held by or on behalf of the
Trustee in accordance with Section 3.01.
The Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any Deposited
Underlying Certificates or with respect to the sufficiency of the Trust Fund
or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation, the
compliance by the Depositor with any warranty or representation made under
this Agreement or in any related document or the accuracy of any such warranty
or representation, any investment of monies by or at the direction of the
Depositor or any loss resulting therefrom or the acts or omissions of the
Depositor. The Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or otherwise to
perfect or maintain the perfection of any security interest or lien granted to
it hereunder.
Section 6.04. Trustee May Own Certificates. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee.
Section 6.05. Trustee's Fees and Expenses. (a) As compensation to the
Trustee for its obligations under this Agreement, the Trustee shall be
entitled to the earnings on or the investment income with respect to the funds
in or credited to the Distribution Account, net of any
37
losses realized from the Eligible Investments, which shall be paid in
accordance with Section 3.01(b)(i) (such amount, the "Trustee's Fee").
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be indemnified (to the extent the Trustee has not been
indemnified under any Underlying Agreement) by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with or
relating to this Agreement or the Certificates, or the performance of any of
the Trustee's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of the Trustee's duties under this Agreement. Such indemnities
shall survive the termination or discharge of this Agreement and the
resignation or removal of the Trustee.
Section 6.06. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation or an association and organized
and doing business under the laws of any state or the United States of
America, authorized under such laws to exercise corporate trust powers, having
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 conditions at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 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 conditions so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.07.
Section 6.07. Resignation and Removal of the Trustee. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Depositor and to all Certificateholders. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor trustee by written instrument, in duplicate, which instrument shall
be delivered to the resigning Trustee and to the successor trustee. A copy of
such instrument shall be delivered to the Certificateholders 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, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.06 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged 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, then the
Depositor, may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the Trustee
so removed and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders by the Depositor.
The Holders of Certificates entitled to at least 66-2/3% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of
38
which instruments shall be delivered to the Depositor, one complete set to the
Trustee so removed, one complete set to the successor so appointed. A copy of
such instrument shall be delivered to the Certificateholders by the Depositor.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 6.08.
Section 6.08. Successor Trustee. Any successor trustee appointed as
provided in Section 6.07 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 predecessor trustee
shall transfer and deliver to the successor trustee, on behalf of the
Certificateholders, the Deposited Underlying Certificates and related
documents and statements held by it, as well as all moneys held by it
hereunder, and the Depositor and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 6.06 and the appointment of such
successor trustee shall not result in a downgrading of any Class of
Certificates by the Rating Agencies, as evidenced by a letter from each Rating
Agency.
Upon acceptance of appointment by a successor trustee as provided in
this Section, 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
10 days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
Section 6.09. Merger or Consolidation of Trustee. Any corporation or
association into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or association resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or association succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation or association shall be eligible under
the provisions of Section 6.06, 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.
Section 6.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, 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 the same may at the time be located, the
Depositor 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
39
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity for the benefit of the Certificateholders, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this
Section 6.10, such powers, duties, obligations, rights and trusts as the
Depositor and the Trustee may consider necessary or desirable. If the
Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, 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
6.06 hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 6.08
hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 6.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, 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, 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 by such separate trustee or co-trustee at the
direction of the Trustee. No trustee hereunder shall be held liable by reason
of any act or omission of any other trustee hereunder. The Depositor 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 VI. 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.
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 6.11. Returns. The Trustee, on behalf of the Trust, shall
prepare, and the Trustee shall execute, returns for each taxable year (the
"REMIC Returns") for the Trust REMIC created hereunder as may be required
under the REMIC Provisions. The Trustee, on behalf of the Trust, shall also
prepare, and the Trustee shall execute, any returns as may be required under
any other applicable federal and state laws. Any reasonable fees and expenses
incurred in connection with filing such returns shall be reimbursable to the
Trustee pursuant to Section 6.05(b) herein. The Trustee shall maintain such
information and records, including but not limited to the income, expenses,
Deposited Underlying Certificates, other assets and liabilities of the Trust
Fund, and
40
the adjusted basis of the Trust Fund property determined at such intervals as
may be required by the Code, as may be necessary and appropriate to enable the
preparation of any such returns, and shall take any and all actions necessary
to ensure that any such returns are prepared and filed as required by this
Section 6.11 and applicable law. The fiscal year of the REMIC hereunder shall
be the calendar year and the books of the Trust REMIC hereunder shall be
maintained on the accrual method of accounting. The Trustee shall also
prepare, execute and forward to the Certificateholders all information reports
or tax returns required with respect to the Trust REMIC hereunder (including
information relating to interest, original issue discount and market discount)
as and when required to be provided to the Certificateholders, and to the
Internal Revenue Service and other governmental authorities in accordance with
the REMIC Provisions and any other applicable federal, state or local laws.
Section 6.12. Election of REMIC Status.
It is intended that the assets with respect to which the REMIC election
is to be made, as set forth in the Preliminary Statement, shall constitute,
and that the conduct of matters relating to such assets shall be such as to
qualify such assets as, a "real estate mortgage investment conduit" as defined
in and in accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of such REMIC and
that in such capacity it shall: (a) prepare and file, or cause to be prepared
and filed, in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file or cause to be prepared and filed with
the Internal Revenue Service and with the appropriate authorities under
Applicable State and Local Tax Law income tax or information returns for each
taxable year with respect to such REMIC, containing such information and at
the times and in the manner as may be required by the Code or under Applicable
State and Local Tax Law and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby; (b) within thirty days of the
Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c) make
or cause to be made elections that such assets be treated as a REMIC on the
federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and when required to be provided to them in accordance with the REMIC
Provisions, including without limitation, the calculation of any original
issue discount using the applicable prepayment assumption; (e) provide
information necessary for the computation of tax imposed on the transfer of a
Residual Certificate to a Person that is not a Permitted Transferee, or an
agent (including a broker, nominee or other middleman) of a Non-Permitted
Transferee, or a pass-through entity in which a Non-Permitted Transferee is
the record holder of an interest (the reasonable cost of computing and
furnishing such information may be charged to the Person liable for such tax);
(f) to the extent that they are under its control conduct matters relating to
such assets at all times that any Certificates are outstanding so as to
maintain the status as a REMIC under the REMIC Provisions; (g) not knowingly
or intentionally take any action or omit
41
to take any action that would cause the termination of the REMIC status; (h)
pay, from the sources specified in the last paragraph of this Section 6.12,
the amount of any federal or state tax, including prohibited transaction taxes
as described below, imposed on such REMIC prior to its termination when and as
the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person as may
be required to sign such returns by the Code or state or local laws,
regulations or rules; (j) maintain records relating to such REMIC, including
but not limited to the income, expenses, assets and liabilities thereof and
the fair market value and adjusted basis of the assets determined at such
intervals as may be required by the Code, as may be necessary to prepare the
foregoing returns, schedules, statements or information; and (k) as and when
necessary and appropriate, represent such REMIC in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of such
REMIC, and otherwise act on behalf of such REMIC in relation to any tax matter
or controversy involving it.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor, any such
additional information or data that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims or expenses of the Trustee arising from any
errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
The Trustee shall treat the Principal Reserve Fund as an outside reserve
fund within the meaning of Treasury Regulation 1.860G-2(h) that is owned by
the Underlying Certificate Seller, and that is not an asset of the REMIC.
Section 6.13. Periodic Filings. Pursuant to written instructions from
the Depositor, the Trustee shall prepare, execute and file all periodic
reports required under the Securities Exchange Act of 1934 in conformity with
the terms of the relief granted to the Depositor in CWMBS, Inc. (February 3,
1994), a copy of which has been supplied to the Trustee by the Depositor. In
connection with the preparation and filing of such periodic reports, the
Depositor shall timely provide to the Trustee all material information
available to them which is required to be included in such reports and not
known to them to be in the possession of the Trustee and such other
information as the Trustee reasonably may request from either of them and
otherwise reasonably shall cooperate with the Trustee. 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.
42
The Trustee shall have no responsibility to file any items other than those
specified in this Section 6.13.
Section 6.14. Appointment of Office or Agency. The Corporate Trust
Office of the Trustee shall be the office where the Certificates may be
surrendered for registration of transfer or exchange, and presented for final
distribution, and where notices and demands to or upon the Trustee in respect
of the Certificates and this Agreement may be served.
Section 6.15. Limitation of Liability. The Certificates are executed and
authenticated by the Trustee, not in its individual capacity but solely as
Trustee of the Trust Fund created by this Agreement, in the exercise of the
powers and authority conferred and vested in it by this Agreement. Each of the
undertakings and agreements made on the part of the Trustee in the
Certificates is made and intended not as a personal undertaking or agreement
by the Trustee but is made and intended for the purpose of binding only the
Trust Fund.
Section 6.16. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee
shall be brought in its own name or in its capacity as Trustee. Any recovery
of judgment shall after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Certificateholders in respect
of which such judgment has been recovered.
Section 6.17. Suits for Enforcement. In case of a default by the
Depositor hereunder that shall occur and be continuing, the Trustee, in its
discretion, may proceed to protect and enforce its rights and the rights of
the Holders of Certificates under this Agreement by a suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy, as the Trustee, being advised
by counsel, shall deem most effectual to protect and enforce any of the rights
of the Trustee and the Certificateholders.
Section 6.18. Waiver of Bond Requirements. The Trustee shall be relieved
of, and each Certificateholder hereby waives to the extent permitted by law,
any requirement of any jurisdiction in which the Trust Fund, or any part
thereof, may be located that the Trustee post a bond or other surety with any
court, agency or body whatsoever.
Section 6.19. Waiver of Inventory, Accounting and Appraisal
Requirements. The Trustee shall be relieved of, and each Certificateholder
hereby waives, to extent permitted by law, any requirement of any jurisdiction
in which the Trust Fund, or any part thereof, may be located that the Trustee
file any inventory, accounting or appraisal of the Trust Fund with any court,
agency or body at any time or in any manner whatsoever.
Section 6.20. Representations and Warranties of the Trustee. The Trustee
hereby represents and warrants to the Depositor, as of the Closing Date, that:
43
(i) The Trustee is a New York banking corporation validly existing
and in good standing under the laws of the State of New York.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by
the Trustee, will not violate the Trustee's charter or bylaws or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the material
breach of, any agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) The Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Depositor, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally (or against depository
institutions), and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
actual knowledge, threatened against the Trustee which would prohibit
the Trustee from entering into this Agreement or, in the Trustee's good
faith reasonable judgment, is likely to materially and adversely affect
either the ability of the Trustee to perform its obligations under this
Agreement or the financial condition of the Trustee.
(vii) The Trustee will acquire its interest in the Deposited
Underlying Certificates in good faith and without actual notice or
knowledge of any "adverse claim" (as defined in Sections 8-102(a)(1) and
8-105 of the Uniform Commercial Code).
Section 6.21. Compliance with Withholding Requirements. Notwithstanding
any other provisions of this Agreement, the Trustee shall comply with all
federal withholding requirements with respect to distributions to
Certificateholders. The consent of Certificateholders shall not be required
for any such withholding, except that no withholding shall be made to the
extent that a Certificateholder presents to the Trustee a form evidencing
entitlement to elimination or reduction of such withholding. In the event the
Trustee withholds any amount from any
44
Certificateholder pursuant to federal withholdings requirements, the Trustee
shall indicate to such Certificateholder the amount so withheld.
Article VII
TERMINATION
Section 7.01. Termination.
(a) Subject to Section 7.02, the respective obligations and
responsibilities of the Depositor and the Trustee created hereby with respect
to the Certificates (other than the obligation to make certain payments and to
send certain notices to Certificateholders as hereinafter set forth) shall
terminate upon payment to the Certificateholders of all amounts held by or on
behalf of the Trustee and required to be paid to them hereunder following the
later of (i) a termination of all of the Underlying Trusts, (ii) the receipt
of the final distribution to be made on the Deposited Underlying Certificates
in accordance with the terms and conditions of the Underlying Agreement and
(iii) the final distribution to Certificateholders of all amounts required to
be distributed pursuant to Article III; provided, however, that in no event
shall the trust created hereby continue beyond the earlier of: (i) the
expiration of 21 years from the death of the survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to the United
Kingdom, living on the date hereof and (ii) the Latest Possible Maturity Date.
(b) Notice of any termination specifying the Final Payment Date upon
which the Certificateholders may surrender their Certificates to the Trustee
for payment of the final distribution (such distribution to be made in
accordance with Section 3.02 hereof) and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the
first day and not later than the 26th day of the month preceding the month of
such final distribution specifying (A) the Distribution Date upon which the
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office of the Trustee therein designated, (B)
the amount of any such final distribution and (C) that the Record Date
otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office of the Trustee therein specified; provided,
however, that the failure to give such notice will not entitle any
Certificateholder to receive any interest in excess of such
Certificateholder's Percentage Interest of the allocation of such Class's
Class Optimal Interest Distribution Amount for such Final Payment Date. Upon
presentation and surrender of a Certificate, the Trustee shall cause to be
distributed to the Holder thereof such Holder's final distribution.
On such Final Payment Date, any amount remaining on deposit in the
Distribution Account after payment to the Trustee of any amounts to which it
is entitled hereunder will be distributed to the Holders of the Class A-R
Certificates.
Section 7.02. Failure of Certificateholders to Surrender Certificates.
In the event that any of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the Final Payment Date,
the Trustee shall give a written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final
distribution
45
with respect thereto. In the event that any affected Holder shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after such 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. If within two years after such
second notice any Certificates shall not have been surrendered for
cancellation, the Class A-R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
Section 7.03. Additional Termination Requirements.
(a) Reserved.
(b) The Trustee as agent for the REMIC hereunder hereby agrees to adopt
and sign a plan of complete liquidation upon the written request of the
Depositor, and the receipt of the Opinion of Counsel referred to in Section
7.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Depositor.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Depositor to prepare and the Trustee to adopt and sign a plan of
complete liquidation.
Notwithstanding Section 7.01 hereof, if on any date a Holder holds all
of the Certificates then outstanding, such Holder on any Distribution Date
thereafter may purchase all of the Deposited Underlying Certificates and other
assets remaining in the Trust Fund and the Trust Fund shall be terminated in
its entirety, if the following additional requirements, which are intended to
meet the definition of a "qualified liquidation" in Section 860F(a)(4) of the
Code, are met:
(d) Trustee shall specify the first day in the 90-day liquidation period
in a statement attached to the REMIC's final Tax Return, pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a qualified
liquidation under Section 860F of the Code and any regulations thereunder;
(e) During such 90-day liquidation period and at or prior to the time of
the making of the final payment on the Certificates, the Trustee shall sell
all of the assets of the REMIC to the Depositor, for cash; and
(f) Immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class A-R Certificates all cash
on hand (other than cash retained to meet claims), in the Trust Fund.
Notwithstanding the foregoing, the REMIC can only be liquidated upon the
presentation to the Trustee of all Certificates. For the purposes of this
Section 7.03, the Class A-R Certificates shall remain outstanding until the
"qualified liquidation" of the REMIC.
46
Article VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment. This Agreement may be amended from time to time
by the Depositor and the Trustee without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provisions herein (including, without limitations, to give
effect to expectations of investors), (iii) to add to the duties of the
Depositor, or (iv) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement, provided that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Trustee, adversely affect
in any material respect the interests of any Certificateholder; provided
further that any such action shall be deemed not to adversely affect in any
material respect the interests of the Certificateholders and no such Opinion
of Counsel shall be required if the Person requesting such amendment obtains a
letter from each Rating Agency stating that such amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates, it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee and the Depositor also may at any time
and from time to time amend this Agreement without consent of the
Certificateholders to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or helpful to (i) maintain the qualification
of the REMIC hereunder as a REMIC under the Code, (ii) avoid or minimize the
risk of the imposition of any tax on the REMIC hereunder pursuant to the Code
that would be a claim at any time prior to the final redemption of the
Certificates or (iii) comply with any other requirements of the Code, provided
that the Trustee has been provided an Opinion of Counsel, which opinion shall
be an expense of the party requesting such opinion but in any case shall not
be an expense of the Trustee or the Trust Fund, to the effect that such action
is necessary or helpful to, as applicable, (i) maintain such qualification,
(ii) avoid or minimize the risk of imposition of such a tax or (iii) comply
with any such requirements of the Code.
This Agreement may also be amended from time to time by the Depositor
and the Trustee and Holders of Certificates entitled to at least 66-2/3% of
the Percentage Interests of each Class affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of or application of,
payments received on the Deposited Underlying Certificates which are required
to be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner other than as described
in the immediately preceding clause (i), without the consent of the Holders of
Certificates of such Class evidencing at least 66-2/3% of the Percentage
Interests of each such Class, or (iii) modify the consents required by the
immediately preceding clauses (i) and (ii) without the consent of the Holders
of all Certificates then outstanding.
Any amendment made pursuant to either of the preceding two paragraphs
that materially and adversely affects the rights of the Underlying Certificate
Seller shall not be made without the prior written consent of the Underlying
Certificate Seller.
47
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel, at the expense of the party seeking such
amendment, to the effect that such amendment will not result in the imposition
of any tax on the Trust Fund and that such amendment is permitted or
authorized by this agreement.
Promptly after the execution of any such amendment the Trustee shall
furnish a copy of such amendment to each Rating Agency and, if such amendment
was with the consent of Holders, to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under
this Section 8.01 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
The cost of any Opinion of Counsel to be delivered pursuant to this
Section 8.01 shall be borne by the Person seeking the related amendment, but
in no event shall such Opinion of Counsel be an expense of the Trustee.
The Trustee may, but shall not be obligated to, enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
Section 8.02. Action Under and Conflicts With the Underlying Agreement.
Subject to the terms hereof, in the event that there shall be any matters
arising under an Underlying Agreement which require the vote or direction of
the holders of the related Deposited Underlying Certificate, the Trustee, as
holder of such Deposited Underlying Certificate, shall vote the Deposited
Underlying Certificate in accordance with instructions received from Holders
of a Majority in Interest of the related Class of Certificates. In the absence
of receipt by the Trustee of consistent instructions from the Holders of a
Majority in Interest of the related Class of Certificates, the Trustee shall
not vote; provided, however, that notwithstanding the absence of such
instructions, in the event a required distribution pursuant to an Underlying
Agreement shall not have been made, the Trustee shall, subject to the
provisions of Article V hereof, pursue such remedies as may be available to it
as a holder of the related Deposited Underlying Certificate in accordance with
the terms of the applicable Underlying Agreement.
Section 8.03. 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
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
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 expressly
provided for 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
48
any third person 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 of any provision 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 default and of the
continuance thereof, as hereinbefore provided, and unless the Holders of
Certificates entitled to at least 25% of the Voting Rights of each Class of
Certificates also shall 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 15 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 is understood and intended, and
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 whatsoever by virtue of any provision of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of such 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 equal, ratable and
common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 8.04. Governing Law. This Agreement shall be construed in
accordance with the 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 8.05. Notices. All directions, demands, reports and notices
hereunder shall be in writing and shall be deemed to have been duly given when
received if sent by facsimile transmission or if personally delivered at or
mailed by first class mail, postage prepaid, or by express delivery service or
delivered in any other manner specified herein, to (a) in the case of the
Depositor, CWMBS, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or such other address as may hereafter be
furnished to the Trustee in writing by the Depositor; (b) in the case of the
Underlying Certificate Seller, Countrywide Home Loans, Inc., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (c) in the case of the Trustee, The Bank
of New York, ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust - CWMBS, Inc. Resecuritization Mortgage Trust, Series
2001-33R, Resecuritization Mortgage Trust Certificates, Series 2001-33R; or
such other address as may hereafter be furnished to the Depositor in writing
by the Trustee. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed to a Holder within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given whether or not the
Certificateholder receives such notice. A copy of any notice telecopied
hereunder shall be mailed to the appropriate party in the manner set forth
above.
49
Section 8.06. 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 8.07. Notice to Rating Agencies. Without limiting any other
provision hereunder requiring notice to or a response from the Rating
Agencies, following the delivery of rating letters with respect to the Trust
Certificates, the Trustee shall use its best efforts promptly to provide
notice to the Rating Agencies (with a copy to Countrywide Securities
Corporation) with respect to each of the following of which it has actual
knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any default that has not been cured or waived;
3. The resignation or termination of the Trustee;
4. The final payment to the Holders of any Class of Certificates; and
5. Any change in the location of the Distribution Account.
The Trustee shall promptly furnish to the Rating Agency and Countrywide
Securities Corporation copies of each report to Certificateholders described
in Section 3.03.
Any such notice pursuant to this Section 8.07 shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed
by first class mail, postage prepaid, or by express delivery service to (i)
Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other
addresses as Fitch may designate in writing to the parties hereto, (ii)
▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and (iii) Countrywide Securities Corporation, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇, 4500 Park Granada, MS #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 8.08. Action Under and Conflicts With Underlying Agreements.
Subject to the terms hereof, in the event that there shall be any matters
arising under any of the Underlying Agreements which require the vote or
direction of the holders of the Deposited Underlying Certificates, the
Trustee, as holder of the Deposited Underlying Certificates, shall vote the
Deposited Underlying Certificates in accordance with instructions received
from Holders representing 66-2/3% of the Percentage Interests of each Class of
Certificates, other than the Class A-R Certificates, affected thereby. In the
absence of any such instructions, the Trustee shall not vote; provided,
however, that, notwithstanding the absence of such instructions, in the event
a required distribution pursuant to an Underlying Agreement shall not have
been made, the Trustee shall, subject to the provisions of Article VI hereof,
pursue such remedies as may be available to it as holder of such Deposited
Underlying Certificates in accordance with the terms of the related Underlying
Agreement.
50
Section 8.09. Article and Section References. All article and section
references used in this Agreement, unless otherwise provided, are to articles
and sections in this Agreement.
Section 8.10. Execution in Counterparts. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement, and shall become a binding agreement when one or more counterparts
have been signed by each party and delivered to the other party
51
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
CWMBS, INC.,
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
as Underlying Certificate Seller
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
52
STATE OF ________________ )
)ss.:
COUNTY OF _______________ )
On the __ day of December, 2001 before me, a notary public in and for
said State, personally appeared _____________________, known to me to be an
______________________ of CWMBS, 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]
53
STATE OF ________________ )
)ss.:
COUNTY OF _______________ )
On the __ day of December, 2001 before me, a notary public in and for
said State, personally appeared _____________________, known to me to be an
______________________ of Countrywide Home Loans, 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]
54
STATE OF ________________ )
)ss.:
COUNTY OF _______________ )
On the __ day of December, 2001 before me, a notary public in and for
said State, personally appeared ________________________________________,
known to me to be a _________________________ of The Bank of New York one of
the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of said association, and acknowledged to
me that such association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
____________________________
Notary Public
[Notarial Seal]
55
EXHIBIT A-1
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.: 1
Cut-off Date: December 26, 2001, after giving effect to
distributions made on such Underlying
Distribution Date for the Underlying Trust
Funds
First Distribution Date: January 28, 2002
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $44,040,000
Closing Date Principal
Balances evidenced
by all Class A-1
Certificates: $44,040,000
CUSIP: 12669C NY 2
Interest Rate: 6.75%
Maturity Date: December 28, 2024
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R,
Class A-1
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificates, such Trust Fund formed and
the Deposited Underlying Certificates deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE DEPOSITED UNDERLYING CERTIFICATES 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
Class A-1 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-1 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificates and deposited by CWMBS,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Trust
Agreement dated as of December 28, 2001 (the "Trust Agreement") among the
Depositor, Countrywide Home Loans, Inc., as underlying certificate seller (the
"Underlying Certificate Seller") and The Bank of New York, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Trust Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Distributions in reduction of the Certificate Principal Balance of
this Certificate may be made monthly as set forth herein. Accordingly, the
outstanding Certificate Principal Balance hereof at any time may be less than
the amount shown above as the denomination of this Certificate.
Pursuant to the terms of the Trust Agreement, a distribution of
interest and principal received on the related Deposited Underlying
Certificates will be the 28th day of each calendar month (or, if such day is
not a Business Day, the next succeeding Business Day); provided, that if the
Underlying Distribution Date falls on the 28th day of the calendar month, the
distribution date for that calendar month shall be the next succeeding
Business Day following such Underlying Distribution Date of each calendar
month (a "Distribution Date"), commencing on the first Distribution Date
specified above, 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 Class A-1 Certificates on such
Distribution Date pursuant to Section
3.02 of the Trust Agreement. The Record Date applicable to the first
Distribution Date is the Closing Date and as to each succeeding Distribution
Date is the last Business Day of the month preceding the month of such
Distribution Date.
Distributions to any Certificateholder on any Distribution Date
shall be made either (x) by wire transfer in immediately available funds to
the account of such holder at a bank or other entity having appropriate
facilities therefor, if (i) such Holder has so notified the Trustee in writing
at least five Business Days prior to the related Record Date and (ii) such
Holder shall hold (A) 100% of the Class Certificate Balance of any Class of
Certificates or (B) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register. Except as otherwise provided in the Trust
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, but only upon presentment and surrender of
this Certificate at the Corporate Trust Office or such other location
specified in the notice to Certificateholders of such final distribution.
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 Class A-1 Certificate shall not be entitled to any benefit
under the Trust Agreement or be valid for any purpose unless manually
countersigned by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: December 28, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust Certificates, Series
2001-33R, issued in five Classes (Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificates, (ii) the distributions thereon after December 26, 2001, and
(iii) the Distribution Account and such assets that are deposited therein from
time to time, together with any and all income, proceeds and payments with
respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the related Deposited Underlying Certificates, all
as more specifically set forth in the Trust Agreement. The Certificateholder,
by its acceptance of this Certificate, agrees that it will look solely to the
funds on deposit in the Distribution Account for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable
under this Certificate or the Trust Agreement or, except as expressly provided
in the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust 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
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. 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 Trust 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 Trust 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 office or agency maintained by the Trustee
in New York, New York (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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.
A-1-1
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Trust Agreement. As provided
in the Trust 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 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 neither the Depositor, the Trustee
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust Fund created thereby shall terminate as provided in
Article VII of the Trust Agreement.
A-1-2
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 Pass-Through
Certificate and hereby authorizes the transfer of registration of such
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-1-3
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary public in
and for said State, personally appeared ______________ __________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
_____________________________________
Notary Public
[Notarial Seal]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
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.: 1
Cut-off Date: December 26, 2001, after giving effect to
distributions made on such Underlying
Distribution Date for the Underlying Trust
Funds
First Distribution Date: January 28, 2002
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $8,665,268
Closing Date Principal
Balances evidenced
by all Class A-2
Certificates: $8,665,268
CUSIP: 12669C NZ 9
Interest Rate: 6.50%
Maturity Date: November 28, 2023
A-1-1
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R,
Class A-2
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificates, such Trust Fund formed and
the Deposited Underlying Certificates deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE DEPOSITED UNDERLYING CERTIFICATES 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
Class A-2 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-2 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificates and deposited by CWMBS,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Trust
Agreement dated as of December 28, 2001 (the "Trust Agreement") among the
Depositor, Countrywide Home Loans, Inc., as underlying certificate seller (the
"Underlying Certificate Seller") and The Bank of New York, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Trust Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Distributions in reduction of the Certificate Principal Balance of
this Certificate may be made monthly as set forth herein. Accordingly, the
outstanding Certificate Principal Balance hereof at any time may be less than
the amount shown above as the denomination of this Certificate.
Pursuant to the terms of the Trust Agreement, a distribution of
interest and principal received on the related Deposited Underlying
Certificates will be the 28th day of each calendar month (or, if such day is
not a Business Day, the next succeeding Business Day); provided, that if the
Underlying Distribution Date falls on the 28th day of the calendar month, the
distribution date for that calendar month shall be the next succeeding
Business Day following such Underlying Distribution Date of each calendar
month (a "Distribution Date"), commencing on the first Distribution Date
specified above, 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 Class A-2 Certificates on such
Distribution Date pursuant to Section
A-1-2
3.02 of the Trust Agreement. The Record Date applicable to the first
Distribution Date is the Closing Date and as to each succeeding Distribution
Date is the last Business Day of the month preceding the month of such
Distribution Date.
Distributions to any Certificateholder on any Distribution Date
shall be made either (x) by wire transfer in immediately available funds to
the account of such holder at a bank or other entity having appropriate
facilities therefor, if (i) such Holder has so notified the Trustee in writing
at least five Business Days prior to the related Record Date and (ii) such
Holder shall hold (A) 100% of the Class Certificate Balance of any Class of
Certificates or (B) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register. Except as otherwise provided in the Trust
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, but only upon presentment and surrender of
this Certificate at the Corporate Trust Office or such other location
specified in the notice to Certificateholders of such final distribution.
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.
* * * * *
A-1-3
This Class A-2 Certificate shall not be entitled to any benefit
under the Trust Agreement or be valid for any purpose unless manually
countersigned by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: December 28, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
A-1-4
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust Certificates, Series
2001-33R, issued in five Classes (Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificates, (ii) the distributions thereon after December 26, 2001, and
(iii) the Distribution Account and such assets that are deposited therein from
time to time, together with any and all income, proceeds and payments with
respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the related Deposited Underlying Certificates, all
as more specifically set forth in the Trust Agreement. The Certificateholder,
by its acceptance of this Certificate, agrees that it will look solely to the
funds on deposit in the Distribution Account for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable
under this Certificate or the Trust Agreement or, except as expressly provided
in the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust 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
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. 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 Trust 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 Trust 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 office or agency maintained by the Trustee
in New York, New York (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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.
A-2-1
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Trust Agreement. As provided
in the Trust 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 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 neither the Depositor, the Trustee
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust Fund created thereby shall terminate as provided in
Article VII of the Trust Agreement.
A-2-2
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 Pass-Through
Certificate and hereby authorizes the transfer of registration of such
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-2-3
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary public in
and for said State, personally appeared ______________ __________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
__________________________________
Notary Public
[Notarial Seal]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
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.: 1
Cut-off Date: December 26, 2001, after giving effect to
distributions made on such Underlying
Distribution Date for the Underlying Trust
Funds
First Distribution Date: January 28, 2002
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $51,621,416
Closing Date Principal
Balances evidenced
by all Class A-3
Certificates: $51,621,416
CUSIP: 12669C PA 2
Interest Rate: 6.50%
Maturity Date: November 28, 2023
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R,
Class A-3
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificates, such Trust Fund formed and
the Deposited Underlying Certificates deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE DEPOSITED UNDERLYING CERTIFICATES 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
Class A-3 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-3 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificates and deposited by CWMBS,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Trust
Agreement dated as of December 28, 2001 (the "Trust Agreement") among the
Depositor, Countrywide Home Loans, Inc., as underlying certificate seller (the
"Underlying Certificate Seller") and The Bank of New York, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Trust Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Distributions in reduction of the Certificate Principal Balance of
this Certificate may be made monthly as set forth herein. Accordingly, the
outstanding Certificate Principal Balance hereof at any time may be less than
the amount shown above as the denomination of this Certificate.
Pursuant to the terms of the Trust Agreement, a distribution of
interest and principal received on the related Deposited Underlying
Certificates will be the 28th day of each calendar month (or, if such day is
not a Business Day, the next succeeding Business Day); provided, that if the
Underlying Distribution Date falls on the 28th day of the calendar month, the
distribution date for that calendar month shall be the next succeeding
Business Day following such Underlying Distribution Date of each calendar
month (a "Distribution Date"), commencing on the first Distribution Date
specified above, 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 Class A-3 Certificates on such
Distribution Date pursuant to Section
3.02 of the Trust Agreement. The Record Date applicable to the first
Distribution Date is the Closing Date and as to each succeeding Distribution
Date is the last Business Day of the month preceding the month of such
Distribution Date.
Distributions to any Certificateholder on any Distribution Date
shall be made either (x) by wire transfer in immediately available funds to
the account of such holder at a bank or other entity having appropriate
facilities therefor, if (i) such Holder has so notified the Trustee in writing
at least five Business Days prior to the related Record Date and (ii) such
Holder shall hold (A) 100% of the Class Certificate Balance of any Class of
Certificates or (B) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register. Except as otherwise provided in the Trust
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, but only upon presentment and surrender of
this Certificate at the Corporate Trust Office or such other location
specified in the notice to Certificateholders of such final distribution.
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 Class A-3 Certificate shall not be entitled to any benefit
under the Trust Agreement or be valid for any purpose unless manually
countersigned by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: December 28, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust Certificates, Series
2001-33R, issued in five Classes (Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificates, (ii) the distributions thereon after December 26, 2001, and
(iii) the Distribution Account and such assets that are deposited therein from
time to time, together with any and all income, proceeds and payments with
respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the related Deposited Underlying Certificates, all
as more specifically set forth in the Trust Agreement. The Certificateholder,
by its acceptance of this Certificate, agrees that it will look solely to the
funds on deposit in the Distribution Account for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable
under this Certificate or the Trust Agreement or, except as expressly provided
in the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust 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
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. 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 Trust 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 Trust 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 office or agency maintained by the Trustee
in New York, New York (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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.
A-3-1
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Trust Agreement. As provided
in the Trust 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 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 neither the Depositor, the Trustee
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust Fund created thereby shall terminate as provided in
Article VII of the Trust Agreement.
A-3-2
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 Pass-Through
Certificate and hereby authorizes the transfer of registration of such
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-3-3
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary public in
and for said State, personally appeared ______________ __________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
_______________________________
Notary Public
[Notarial Seal]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
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.: 1
Cut-off Date: December 26, 2001, after giving effect to
distributions made on such Underlying
Distribution Date for the Underlying Trust
Funds
First Distribution Date: January 28, 2002
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $14,403,504
Closing Date Principal
Balances evidenced
by all Class A-4
Certificates: $14,403,504
CUSIP: 12669C PB 0
Interest Rate: 6.50%
Maturity Date: November 28, 2023
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R,
Class A-4
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificates, such Trust Fund formed and
the Deposited Underlying Certificates deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE DEPOSITED UNDERLYING CERTIFICATES 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
Class A-4 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-4 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificates and deposited by CWMBS,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Trust
Agreement dated as of December 28, 2001 (the "Trust Agreement") among the
Depositor, Countrywide Home Loans, Inc., as underlying certificate seller (the
"Underlying Certificate Seller") and The Bank of New York, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Trust Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Certificate by
virtue of the acceptance hereof assents and by which such Holder is bound.
Distributions in reduction of the Certificate Principal Balance of
this Certificate may be made monthly as set forth herein. Accordingly, the
outstanding Certificate Principal Balance hereof at any time may be less than
the amount shown above as the denomination of this Certificate.
Pursuant to the terms of the Trust Agreement, a distribution of
interest and principal received on the related Deposited Underlying
Certificates will be the 28th day of each calendar month (or, if such day is
not a Business Day, the next succeeding Business Day); provided, that if the
Underlying Distribution Date falls on the 28th day of the calendar month, the
distribution date for that calendar month shall be the next succeeding
Business Day following such Underlying Distribution Date of each calendar
month (a "Distribution Date"), commencing on the first Distribution Date
specified above, 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 Class A-4 Certificates on such
Distribution Date pursuant to Section
3.02 of the Trust Agreement. The Record Date applicable to the first
Distribution Date is the Closing Date and as to each succeeding Distribution
Date is the last Business Day of the month preceding the month of such
Distribution Date.
Distributions to any Certificateholder on any Distribution Date
shall be made either (x) by wire transfer in immediately available funds to
the account of such holder at a bank or other entity having appropriate
facilities therefor, if (i) such Holder has so notified the Trustee in writing
at least five Business Days prior to the related Record Date and (ii) such
Holder shall hold (A) 100% of the Class Certificate Balance of any Class of
Certificates or (B) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register. Except as otherwise provided in the Trust
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, but only upon presentment and surrender of
this Certificate at the Corporate Trust Office or such other location
specified in the notice to Certificateholders of such final distribution.
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 Class A-4 Certificate shall not be entitled to any benefit
under the Trust Agreement or be valid for any purpose unless manually
countersigned by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: December 28, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust Certificates, Series
2001-33R, issued in five Classes (Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificates, (ii) the distributions thereon after December 26, 2001, and
(iii) the Distribution Account and such assets that are deposited therein from
time to time, together with any and all income, proceeds and payments with
respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the related Deposited Underlying Certificates, all
as more specifically set forth in the Trust Agreement. The Certificateholder,
by its acceptance of this Certificate, agrees that it will look solely to the
funds on deposit in the Distribution Account for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable
under this Certificate or the Trust Agreement or, except as expressly provided
in the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust 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
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. 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 Trust 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 Trust 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 office or agency maintained by the Trustee
in New York, New York (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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.
A-4-1
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Trust Agreement. As provided
in the Trust 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 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 neither the Depositor, the Trustee
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust Fund created thereby shall terminate as provided in
Article VII of the Trust Agreement.
A-4-2
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 Pass-Through
Certificate and hereby authorizes the transfer of registration of such
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-4-3
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary public in
and for said State, personally appeared ______________ __________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
__________________________________________
Notary Public
[Notarial Seal]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
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").
BY ACCEPTING THIS CERTIFICATE, A TRANSFEREE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, NOR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, NOR IS SUCH
TRANSFEREE ACQUIRING THIS CERTIFICATE ON BEHALF OF OR WITH THE ASSETS OF A
PLAN.
Certificate No.: 1
Cut-off Date: December 26, 2001, after giving effect to
distributions made on such Underlying
Distribution Date for the Underlying Trust
Funds
First Distribution Date: January 28, 2002
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $99.95
Closing Date Principal
Balances evidenced
by all Class A-R
Certificates: $100
CUSIP: 12669C PC 8
Interest Rate: N/A
Maturity Date: December 28, 2024
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST 2001-33R,
CLASS A-R
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificates, such Trust Fund formed and
the Deposited Underlying Certificates deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE DEPOSITED UNDERLYING CERTIFICATES ARE GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that HARE & 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
Class A-R Certificates) in certain monthly distributions with respect to a
Trust Fund consisting primarily of the Deposited Underlying Certificates and
deposited by CWMBS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Trust Agreement dated as of December 28, 2001 (the "Trust
Agreement") among the Depositor, Countrywide Home Loans, as underlying
certificate seller (the "Underlying Certificate Seller") and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Trust
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
Distributions to any Certificateholder on any Distribution Date
shall be made either (x) by wire transfer in immediately available funds to
the account of such holder at a bank or other entity having appropriate
facilities therefor, if (i) such Holder has so notified the Trustee in writing
at least five Business Days prior to the related Record Date and (ii) such
Holder shall hold (A) 100% of the Class Certificate Balance of any Class of
Certificates or (B) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register. Except as otherwise provided in the Trust
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, but only upon
presentment and surrender of this Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
No Transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received (i) a representation letter from the transferee of a Class
A-R Certificate in form and substance satisfactory to the Trustee that such
transferee is not an employee benefit plan subject to Section 406 of ERISA or
a plan subject to Section 4975 of the Code, nor a Person acting on behalf of
any such plan or using the assets of any such plan to effect such Transfer or
(ii) in the case of any such Class A-R Certificate presented for registration
in the name of an employee benefit plan subject to ERISA or a plan subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any Person acting on behalf of
any such plan or using the assets of any such plan to effect such Transfer, an
Opinion of Counsel to the effect that the purchase or holding of a Class A-R
Certificate will not result in the assets of the REMIC under the Trust
Agreement 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 expressly undertaken in the Trust
Agreement. 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 a plan subject to Section 4975 of the Code without the delivery to
the Trustee of an Opinion of Counsel, which shall not be an expense of the
Depositor or the Trustee, satisfactory to the Trustee as described above shall
be null and void and of no effect.
Each Holder of this Class A-R Certificate shall be deemed to have agreed
to be bound by the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-R Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class A-R Certificate may be
transferred without delivery to the Trustee of (a) a Transfer Affidavit of the
proposed transferee and (b) a Transfer certificate of the transferor, each of
such documents to be in the form described in the Trust Agreement, (iii) each
person holding or acquiring any Ownership Interest in this Class A-R
Certificate must agree to require a Transfer Affidavit and to deliver a
Transferor Affidavit to the Trustee as required pursuant to the Trust
Agreement, (iv) any attempted or purported Transfer of any Ownership Interest
in this Class A-R Certificate in violation of such restrictions will be
absolutely null and void and shall vest no rights in the purported transferee,
and (v) if any person other than a Permitted Transferee acquires any Ownership
Interest in this Class A-R Certificate in violation of such restrictions, then
the Trustee will have the right, in its sole discretion and without notice to
the Holder of this Class A-R Certificate, to sell this Class A-R Certificate
to a purchaser selected by the Trustee, which purchaser may be the Trustee, or
any affiliate of the Trustee, on such terms and conditions as the Trustee may
choose.
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 Class A-R Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned
by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 28, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust Certificates, Series
2001-33R, issued in five Classes (Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificates, (ii) the distributions thereon after December 26, 2001, and
(iii) the Distribution Account and such assets that are deposited therein from
time to time, together with any and all income, proceeds and payments with
respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the related Deposited Underlying Certificates, all
as more specifically set forth in the Trust Agreement. The Certificateholder,
by its acceptance of this Certificate, agrees that it will look solely to the
funds on deposit in the Distribution Account for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable
under this Certificate or the Trust Agreement or, except as expressly provided
in the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust 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
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. 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 Trust 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 Trust 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 office or agency maintained by the Trustee
in New York, New York (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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 Trust Agreement. As provided
in the Trust 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 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 neither the Depositor, the Trustee
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust Fund created thereby shall terminate as provided in
Article VII of the Trust Agreement.
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 Pass-Through
Certificate and hereby authorizes the transfer of registration of such
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.
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary public in
and for said State, personally appeared ______________ __________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
__________________________________________
Notary Public
[Notarial Seal]
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").
BY ACCEPTING THIS CERTIFICATE, A TRANSFEREE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, NOR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, NOR IS SUCH
TRANSFEREE ACQUIRING THIS CERTIFICATE ON BEHALF OF OR WITH THE ASSETS OF A
PLAN.
Certificate No.: 2
Cut-off Date: December 26, 2001, after giving effect to
distributions made on such Underlying
Distribution Date for the Underlying Trust
Funds
First Distribution Date: January 28, 2002
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $0.05
Closing Date Principal
Balances evidenced
by all Class A-R
Certificates: $100
CUSIP: 12669C PC 8
Interest Rate: N/A
Maturity Date: December 28, 2024
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST 2001-33R,
CLASS A-R
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificates, such Trust Fund formed and
the Deposited Underlying Certificates deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE DEPOSITED UNDERLYING CERTIFICATES ARE GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that THE BANK OF NEW YORK, 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
Class A-R Certificates) in certain monthly distributions with respect to a
Trust Fund consisting primarily of the Deposited Underlying Certificates and
deposited by CWMBS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Trust Agreement dated as of December 28, 2001 (the "Trust
Agreement") among the Depositor, Countrywide Home Loans, as underlying
certificate seller (the "Underlying Certificate Seller") and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Trust
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
Distributions to any Certificateholder on any Distribution Date
shall be made either (x) by wire transfer in immediately available funds to
the account of such holder at a bank or other entity having appropriate
facilities therefor, if (i) such Holder has so notified the Trustee in writing
at least five Business Days prior to the related Record Date and (ii) such
Holder shall hold (A) 100% of the Class Certificate Balance of any Class of
Certificates or (B) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register. Except as otherwise provided in the Trust
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, but only upon
presentment and surrender of this Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
No Transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received (i) a representation letter from the transferee of a Class
A-R Certificate in form and substance satisfactory to the Trustee that such
transferee is not an employee benefit plan subject to Section 406 of ERISA or
a plan subject to Section 4975 of the Code, nor a Person acting on behalf of
any such plan or using the assets of any such plan to effect such Transfer or
(ii) in the case of any such Class A-R Certificate presented for registration
in the name of an employee benefit plan subject to ERISA or a plan subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any Person acting on behalf of
any such plan or using the assets of any such plan to effect such Transfer, an
Opinion of Counsel to the effect that the purchase or holding of a Class A-R
Certificate will not result in the assets of the REMIC under the Trust
Agreement 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 expressly undertaken in the Trust
Agreement. 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 a plan subject to Section 4975 of the Code without the delivery to
the Trustee of an Opinion of Counsel, which shall not be an expense of the
Depositor or the Trustee, satisfactory to the Trustee as described above shall
be null and void and of no effect.
Each Holder of this Class A-R Certificate shall be deemed to have agreed
to be bound by the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-R Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class A-R Certificate may be
transferred without delivery to the Trustee of (a) a Transfer Affidavit of the
proposed transferee and (b) a Transfer certificate of the transferor, each of
such documents to be in the form described in the Trust Agreement, (iii) each
person holding or acquiring any Ownership Interest in this Class A-R
Certificate must agree to require a Transfer Affidavit and to deliver a
Transferor Affidavit to the Trustee as required pursuant to the Trust
Agreement, (iv) any attempted or purported Transfer of any Ownership Interest
in this Class A-R Certificate in violation of such restrictions will be
absolutely null and void and shall vest no rights in the purported transferee,
and (v) if any person other than a Permitted Transferee acquires any Ownership
Interest in this Class A-R Certificate in violation of such restrictions, then
the Trustee will have the right, in its sole discretion and without notice to
the Holder of this Class A-R Certificate, to sell this Class A-R Certificate
to a purchaser selected by the Trustee, which purchaser may be the Trustee, or
any affiliate of the Trustee, on such terms and conditions as the Trustee may
choose.
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 Class A-R Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned
by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 28, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
THE BANK OF NEW YORK,
not in its individual
capacity but solely
as Trustee
B-1-1
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST CERTIFICATES,
SERIES 2001-33R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust Certificates, Series
2001-33R, issued in five Classes (Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificates, (ii) the distributions thereon after December 26, 2001, and
(iii) the Distribution Account and such assets that are deposited therein from
time to time, together with any and all income, proceeds and payments with
respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the related Deposited Underlying Certificates, all
as more specifically set forth in the Trust Agreement. The Certificateholder,
by its acceptance of this Certificate, agrees that it will look solely to the
funds on deposit in the Distribution Account for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable
under this Certificate or the Trust Agreement or, except as expressly provided
in the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust 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
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. 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 Trust 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 Trust 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 office or agency maintained by the Trustee
in New York, New York (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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.
B-3-2
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Trust Agreement. As provided
in the Trust 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 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 neither the Depositor, the Trustee
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement and the Trust Fund created thereby shall terminate as provided in
Article VII of the Trust Agreement.
B-3-3
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 Pass-Through
Certificate and hereby authorizes the transfer of registration of such
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-3-4
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary public in
and for said State, personally appeared ______________ __________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
__________________________________________
Notary Public
[Notarial Seal]
B-3-5
EXHIBIT C-1
List of Underlying Trust Funds and related Deposited Underlying Certificates
----------------------------------------------------------------------------
The Underlying Trust Funds and the related Deposited Underlying
Certificates are as follows:
Percentage of
Class held in
Series Class the Trust Fund
------ ----- --------------
(i) Chase Mortgage Finance Corporation Class A-14 100%
Series 1993P
Class A-15 100%
Class A-16 100%
Class A-17 100%
(ii) GE Mortgage Series 1993-10 Class 10-A16 35.4016%
Class 10-A17 35.4179%
Class 10-A18 35.4017%
(iii) Prudential Home Mortgage
Securities Company Series 1993-51 Class A-17 91.5118%
Class A-18 91.5118%
Class A-19 98.3183%
Class A-20 98.3183%
(iv) Residential Funding Mortgage
Securities Series 1993-S44 Class A-9 100%
Class A-10 100%
C-1-1
EXHIBIT D
TRANSFEROR'S AFFIDAVIT
December 28, 2001
CWMBS, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Re: CWMBS, Inc.
Resecuritization Mortgage Certificates, Series 2001-33R
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class A-R Certificate issued
pursuant to the Trust Agreement dated as of December 28, 2001 among CWMBS,
Inc., as depositor, Countrywide Home Loans, Inc., as underlying certificate
seller, and The Bank of New York, as trustee, we certify that to the extent we
are disposing of a Class A-R Certificate, we have no knowledge the Transferee
is not a Permitted Transferee.
Very truly yours,
__________________________________
Print Name of Transferor
By:___________________________________
Authorized Officer
1
TRANSFER AFFIDAVIT FOR THE
CLASS A-R CERTIFICATE
CWMBS, Inc.
Resecuritization Mortgage Certificates
Series 2001-33R
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of Countrywide Securities Corporation,
the proposed Transferee of an Ownership Interest in a Class A-R Certificate
(the "Certificate") issued pursuant to the Trust Agreement, (the "Agreement"),
relating to the above-referenced Series, by and among CWMBS, Inc., as
depositor (the "Depositor"), Countrywide Home Loans, Inc. as underlying
certificate seller, and The Bank of New York, as trustee. Capitalized terms
used, but not defined herein or in Exhibit 1 hereto, shall have the meanings
ascribed to such terms in the Agreement. The Transferee has authorized the
undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii)
as nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit.
The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
D-1-1
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 4.02(d) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by the provisions of Section 4.02(d) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit C to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is ___________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of such a plan.
* * *
2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this 28th day of December, 2001.
By:________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_________________________________
[Assistant] Secretary
Personally appeared before me the above-named ___________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ____________ of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ___________, 20__.
__________________________________
NOTARY PUBLIC
My Commission expires the
___ day of_________, 20__
3
EXHIBIT 1
to Transfer Affidavit
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(l) of the
Code) with respect to any Class A-R Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, an estate whose
income from sources without the United States is includible 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 or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust unless such Person
has furnished the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8EC1 or any applicable successor form, and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Class A-R Certificate to such
Person may cause the REMIC hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with the exception of the Federal Home Loan Mortgage Corporation, a majority
of its board of directors is not selected by such government unit.
"Person": Any individual, corporation, partnership, joint venture, bank,
joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
4
EXHIBIT 2
to Transfer Affidavit
Section 4.02(d) of the Agreement
--------------------------------
(a) (d) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
D.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to Transfer
its Ownership Interest in a Residual Certificate, (B) to obtain a
Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of a Residual
Certificate and (C) not to Transfer its Ownership Interest in a Residual
Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section 4.02(d) shall be absolutely null and void and shall vest no
rights in the purported Transferee. If any purported transferee shall
become a Holder of a Residual Certificate in violation of the provisions
of this Section 4.02(d), then the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the
date of registration of Transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any registration
of Transfer of a Residual Certificate that is in fact not permitted by
Section 4.02(c) and this Section 4.02(d) or for making any payments due
on such Certificate to the Holder thereof or taking any other action
with respect to such Holder under the provisions of this Agreement so
long as the Transfer was registered after receipt of the related
Transfer Affidavit and Transferor Certificate. The Trustee shall be
entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate at
and after either such time. Any such payments so recovered by the
Trustee
5
shall be paid and delivered by the Trustee to the last preceding
Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section 860E(e)
of the Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 4.02(d) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Underlying Certificate Seller or the Depositor, to the effect that the
elimination of such restrictions will not cause the REMIC hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is
not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
6