Exhibit 10.2
Grantor Trust Agreement, dated as of November 1, 1999 among Credit
Suisse First Boston Mortgage Securities Corp., as depositor, Washington Mutual
Bank, F.A., and Bank One, National Association, as grantor trustee.
10.2
EXECUTION COPY
GRANTOR TRUST AGREEMENT
Dated as of November 1, 1999
among
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
WASHINGTON MUTUAL BANK, FA,
and
BANK ONE, NATIONAL ASSOCIATION,
as Grantor Trustee
Mortgage-Backed Pass-Through Certificates
Series 1999-WM1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION ............................... 2
Section 1.01 DEFINITIONS ............................................ 2
Section 1.02 USE OF WORDS AND PHRASES ............................... 8
Section 1.03 CAPTIONS; TABLE OF CONTENTS ............................ 9
Section 1.04 OPINIONS ............................................... 9
ARTICLE II ESTABLISHMENT AND ORGANIZATION OF THE TRUST ..................... 10
Section 2.01 ESTABLISHMENT OF THE TRUST ............................. 10
Section 2.02 OFFICE ................................................. 10
Section 2.03 PURPOSES AND POWERS .................................... 10
Section 2.04 APPOINTMENT OF THE GRANTOR TRUSTEE; DECLARATION OF TRUST 10
Section 2.05 EXPENSES OF THE TRUST .................................. 10
Section 2.06 OWNERSHIP OF THE TRUST ................................. 10
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEPOSITOR ..... 12
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR ........ 12
Section 3.02 CONVEYANCE OF THE REMIC CERTIFICATES ................... 14
Section 3.04 ACCEPTANCE BY TRUSTEE .................................. 15
ARTICLE IV ISSUANCE AND SALE OF CERTIFICATES ............................... 16
Section 4.01 ISSUANCE OF CERTIFICATES ............................... 16
Section 4.02 SALE OF CERTIFICATES ................................... 16
ARTICLE V CERTIFICATES AND TRANSFER OF INTERESTS ........................... 17
Section 5.01 TERMS .................................................. 17
Section 5.02 FORMS .................................................. 17
Section 5.03 EXECUTION, AUTHENTICATION AND DELIVERY ................. 17
Section 5.04 REGISTRATION AND TRANSFER OF CERTIFICATES .............. 17
Section 5.05 MUTILATED, DESTROYED, LOST OR STOLEN FLOATING RATE
CERTIFICATES ........................................... 19
Section 5.06 PERSONS DEEMED OWNERS .................................. 20
Section 5.07 CANCELLATION ........................................... 20
Section 5.08 ASSIGNMENT OF RIGHTS ................................... 20
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VI COVENANTS ....................................................... 21
Section 6.01 DISTRIBUTIONS .......................................... 21
Section 6.02 WITHHOLDING ............................................ 21
Section 6.03 PROTECTION OF TRUST ESTATE ............................. 21
Section 6.04 PERFORMANCE OF OBLIGATIONS ............................. 22
Section 6.05 NEGATIVE COVENANTS ..................................... 22
Section 6.06 NO OTHER POWERS ........................................ 23
Section 6.07 LIMITATION OF SUITS .................................... 23
Section 6.08 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE
DISTRIBUTIONS........................................... 24
Section 6.09 RIGHTS AND REMEDIES CUMULATIVE ......................... 24
Section 6.10 DELAY OR OMISSION NOT WAIVER ........................... 24
Section 6.11 CONTROL BY HOLDERS ..................................... 24
Section 6.12 ACCESS TO CERTIFICATEHOLDERS' NAMES AND ADDRESSES ...... 24
ARTICLE VII ACCOUNTS, DISBURSEMENTS AND RELEASES............................ 26
Section 7.01 COLLECTION OF MONEY .................................... 26
Section 7.02 ESTABLISHMENT OF ACCOUNTS .............................. 26
Section 7.03 FLOW OF FUNDS .......................................... 26
Section 7.04 INVESTMENT OF ACCOUNTS ................................. 27
Section 7.05 ELIGIBLE INVESTMENTS ................................... 27
Section 7.06 ACCOUNTING AND DIRECTIONS BY GRANTOR TRUSTEE ........... 28
Section 7.07 REPORTS BY GRANTOR TRUSTEE TO HOLDERS .................. 29
Section 7.08 REPORTS BY GRANTOR TRUSTEE ............................. 29
ARTICLE VIII SERVICING AND ADMINISTRATION OF ASSETS....................... 30
Section 8.01 TERMINATION OF SWAP AGREEMENTS ......................... 30
Section 8.02 TRANSFER OF SWAP AGREEMENTS ............................ 30
ARTICLE IX TERMINATION OF TRUST ............................................ 33
Section 9.01 TERMINATION OF TRUST ................................... 33
Section 9.02 DISPOSITION OF PROCEEDS ................................ 33
ARTICLE X THE GRANTOR TRUSTEE............................................... 34
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TABLE OF CONTENTS
(continued)
Page
Section 10.01 CERTAIN DUTIES AND RESPONSIBILITIES .................... 34
Section 10.02 CERTAIN RIGHTS OF THE GRANTOR TRUSTEE .................. 35
Section 10.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF CERTIFICATES 36
Section 10.04 MAY OWN CERTIFICATES ................................... 36
Section 10.05 MONEY HELD IN TRUST .................................... 36
Section 10.06 CORPORATE GRANTOR TRUSTEE REQUIRED; ELIGIBILITY ........ 36
Section 10.07 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR ...... 37
Section 10.08 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR GRANTOR TRUSTEE . 38
Section 10.9 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF THE GRANTOR TRUSTEE ........................ 38
Section 10.10 LIABILITY OF THE GRANTOR TRUSTEE ....................... 38
Section 10.11 APPOINTMENT OF CO-GRANTOR TRUSTEE OR SEPARATE GRANTOR
TRUSTEE ................................................ 39
ARTICLE XI MISCELLANEOUS.................................................... 41
Section 11.01 COMPLIANCE CERTIFICATES AND OPINIONS ................... 41
Section 11.02 FORM OF DOCUMENTS DELIVERED TO THE GRANTOR TRUSTEE ..... 41
Section 11.03 ACTS OF HOLDERS ........................................ 42
Section 11.04 NOTICES, ETC. TO GRANTOR TRUSTEE ....................... 42
Section 11.05 NOTICES AND REPORTS TO HOLDERS; WAIVER OF NOTICES ...... 43
Section 11.06 RULES BY GRANTOR TRUSTEE ............................... 43
Section 11.07 SUCCESSORS AND ASSIGNS ................................. 43
Section 11.08 SEVERABILITY ........................................... 43
Section 11.09 BENEFITS OF AGREEMENT .................................. 43
Section 11.10 LEGAL HOLIDAYS ......................................... 44
Section 11.11 GOVERNING LAW .......................................... 44
Section 11.12 COUNTERPARTS ........................................... 44
Section 11.13 USURY .................................................. 44
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TABLE OF CONTENTS
(continued)
Page
Section 11.14 AMENDMENT .............................................. 44
Section 11.15 ADDITIONAL LIMITATION ON ACTION AND IMPOSITION OF TAX .. 45
Section 11.16 NOTICES ................................................ 45
Exhibit A: Form of Floating Rate Certificates
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GRANTOR TRUST AGREEMENT, relating to WASHINGTON MUTUAL BANK, FA SERIES
1999-WM1 GRANTOR TRUST (the "Trust"), dated as of November 1, 1999 by and among
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation, in
its capacity as depositor (the "Depositor"), WASHINGTON MUTUAL BANK, FA
("Washington Mutual") and BANK ONE, NATIONAL ASSOCIATION, a national banking
association, in its capacity as the grantor trustee (the "Grantor Trustee").
WHEREAS, the Depositor wishes to establish the Trust and provide for the
allocation and sale of the beneficial interests therein and the maintenance and
distribution thereof;
WHEREAS, the Depositor wishes to transfer to the Trust the Washington
Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series 1999-WM1 Class
4 A-2, Class 5 A-3 and Class 6 A-3 (the "Class 4 A-2 REMIC Certificates," "Class
5 A-3 REMIC Certificates" and Class 6 A-3 REMIC Certificates," respectively, and
collectively, the "REMIC Certificates") which, along with each swap agreement
dated December 3, 1999 between Credit Suisse Financial Products (the "Swap
Counterparty") and the Grantor Trustee (each, a "Swap Agreement") constitute the
principal assets of the Trust Estate;
WHEREAS, pursuant to each Swap Agreement the Grantor Trustee will
distribute to the Swap Counterparty on each Distribution Date all amounts in
respect of interest received on each Class of REMIC Certificates on each REMIC
Distribution Date and shall have the right to receive from the Swap Counterparty
on the related Swap Payment Date an amount equal to interest due on such
Distribution Date on the related Class of Floating Rate Certificates at the
related Floating Pass-Through Rate, subject to the netting provisions set forth
in each Swap Agreement;
WHEREAS, all things necessary to make the Floating Rate Certificates, when
executed and authenticated by the Grantor Trustee, valid instruments, and to
make this Agreement a valid agreement, in accordance with their and its terms,
have been done; and
WHEREAS, Bank One, National Association is willing to serve in the
capacity of Grantor Trustee hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Depositor, Washington Mutual and the Grantor Trustee
hereby agree as follows:
CONVEYANCE
To provide for the distribution of the interest on and/or principal of the
Floating Rate Certificates in accordance with their terms, all of the sums
distributable under this Agreement with respect to the Floating Rate
Certificates and the performance of the covenants contained in this Agreement,
(i) the Depositor hereby sells, sets over, assigns, transfers and otherwise
conveys to the Trust, without recourse and for the exclusive benefit of the
Holders of the Floating Rate Certificates, all of its right, title and interest
in and to (a) the REMIC Certificates issued pursuant to a Pooling and Servicing
Agreement dated November 1, 1999 among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, Washington Mutual Bank, FA, as Seller and
Servicer, and Bank One, National Association, as Trustee (the "Pooling and
Servicing Agreement"); and (b) proceeds of all the foregoing (including, but not
by way of limitation, cash
1
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, rights to payment of any and every kind, and
other forms of obligations and receivables which at any time constitute all or
part of or are included in the proceeds of any of the foregoing) to pay the
Certificates as specified herein; and (ii) the Grantor Trustee hereby enters
into each Swap Agreement on behalf of the Trust for the benefit of the related
Class of Floating Rate Certificates; ((i) and (ii) above shall be collectively
referred to herein as the "Trust Estate").
The Grantor Trustee acknowledges such sale, accepts the Trust hereunder in
accordance with the provisions hereof and agrees to perform its duties in
accordance with the terms of this Agreement.
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 1.01 DEFINITIONS.
For all purposes of this Agreement, the following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
"Account": Any account established in accordance with Section 7.02 hereof.
"Accrual Period": With respect to the Floating Rate Certificates and any
Distribution Date, the period commencing on the 23rd calendar day of the month
immediately preceding the month in which such Distribution Date occurs, to and
including the 22nd calendar day of the month in which such Distribution Date
occurs. All calculations of interest on the Floating Rate Certificates will be
made on the basis of twelve 30-day months and a 360-day year.
"Agreement": This Grantor Trust Agreement, as it may be amended from time
to time, including any Exhibits hereto.
"Authorized Officer": With respect to any Person, any officer of such
Person who is authorized to act for such Person in matters relating to the
Agreement, and whose action is binding upon such Person; with respect to the
Depositor, the President and any Vice President, and with respect to the Grantor
Trustee, any Vice President, Assistant Vice President, Trust Officer or any
other officer of the Grantor Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject located at the Corporate Trust Office.
"Business Day": Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the States of New York or Washington or the
state in which the Corporate Trust Office is located are authorized or obligated
by law or executive order to be closed.
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"Calculation Agent": The Swap Counterparty or such other Person as may be
specified in the related Swap Agreement.
"Certificateholder or Holder": The Person in whose name a Floating Rate
Certificate is registered in the Register.
"Certificate Rate": As defined in the Pooling and Servicing Agreement.
"Class 4 A-2 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class 4 A-2 Floating Rate Certificates less any amounts actually distributed on
such Class 4 A-2 Floating Rate Certificates with respect to principal thereon
pursuant to Section 7.03(d) and less any amounts of Realized Losses allocated to
reduce the outstanding principal balance of the related Class of REMIC
Certificates pursuant to the Pooling and Servicing Agreement prior to the REMIC
Distribution Date immediately preceding such date of determination.
"Class 5 A-3 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class 5 A-3 Floating Rate Certificates less any amounts actually distributed on
such Class 5 A-3 Floating Rate Certificates with respect to principal thereon
pursuant to Section 7.03(d) and less any amounts of Realized Losses allocated to
reduce the outstanding principal balance of the related Class of REMIC
Certificates pursuant to the Pooling and Servicing Agreement prior to the REMIC
Distribution Date immediately preceding such date of determination.
"Class 6 A-3 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class 6 A-3 Floating Rate Certificates less any amounts actually distributed on
such Class 6 A-3 Floating Rate Certificates with respect to principal thereon
pursuant to Section 7.03(d) and less any amounts of Realized Losses allocated to
reduce the outstanding principal balance of the related Class of REMIC
Certificates pursuant to the Pooling and Servicing Agreement prior to the REMIC
Distribution Date immediately preceding such date of determination.
"Class": The Class 4 A-2 Floating Rate Certificates, Class 5 A-3 Floating
Rate Certificates or Class 6 A-3 Floating Rate Certificates, as applicable.
"Class 4 A-2 Floating Rate Certificate": Any one of the Certificates
designated on the face thereof as a Class 4 A-2 Grantor Trust Certificate,
substantially in the form annexed hereto as Exhibit A, authenticated and
delivered by the Grantor Trustee, representing the right to distributions as set
forth herein. The Class 4 A-2 Floating Rate Certificates represent an interest
in the Class 4 A-2 REMIC Certificates and the Swap Agreement relating to the
Class 4 A-2 Floating Rate Certificates.
"Class 5 A-3 Floating Rate Certificate": Any one of the Certificates
designated on the face thereof as a Class 5 A-3 Grantor Trust Certificate,
substantially in the form annexed hereto as Exhibit A, authenticated and
delivered by the Grantor Trustee, representing the right to
3
distributions as set forth herein. The Class 5 A-3 Floating Rate Certificates
represent an interest in the Class 5 A-3 REMIC Certificates and the Swap
Agreement relating to the Class 5 A-3 Floating Rate Certificates.
"Class 6 A-3 Floating Rate Certificate": Any one of the Certificates
designated on the face thereof as a Class 6 A-3 Grantor Trust Certificate,
substantially in the form annexed hereto as Exhibit A, authenticated and
delivered by the Grantor Trustee, representing the right to distributions as set
forth herein. The Class 6 A-3 Floating Rate Certificates represent an interest
in the Class 6 A-3 REMIC Certificates and the Swap Agreement relating to the
Class 6 A-3 Floating Rate Certificates.
"Closing": As defined in Section 4.02 hereof.
"Code": The Internal Revenue Code of 1986, as amended.
"Conversion Date": The latest date on which a Swap Agreement terminates,
which shall be the Distribution Date in January 2002, in the case of the Swap
Agreement relating to the Class 4 A-2 Certificates, April 2003, in the case of
the Swap Agreement relating to the Class 5 A-3 Certificates, February 2004, in
the case of the Swap Agreement relating to the Class 6 A-3 Certificates.
"Corporate Trust Office": The designated office of the Grantor Trustee in
the State of Illinois at which any particular time its corporate trust business
shall be administered, which office at the date of the execution of this
Agreement is located is located at 1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"Current Interest": With respect to each Class of Floating Rate
Certificates, on any Distribution Date, the amount of interest paid on the
related REMIC Certificate on the immediately preceding REMIC Distribution Date.
"DCR": Duff & ▇▇▇▇▇▇ Credit Rating Company, or any successor thereto.
"Depositor": Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or any successor thereto.
"Depository": The Depository Trust Company, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and any successor Depository hereafter named.
"Direct Participant" or "DTC Participant": Any broker-dealer, bank or
other financial institution for which the Depository holds Floating Rate
Certificates from time to time as a securities depository.
"Distribution Date": Any date on which the Grantor Trustee is required to
make distributions to the Holders, which shall be the 23rd calendar day of each
month, or if such day is not a Business Day, the next Business Day, commencing
in December, 1999.
4
"Eligible Account": Either (i) an account or accounts maintained with a federal
or state-chartered depository institution or trust company (which may be
Washington Mutual or an affiliate of Washington Mutual or which may be the
Grantor Trustee or an affiliate of the Grantor Trustee) 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 short-term
unsecured debt obligations of such holding company) are rated by each Rating
Agency not lower than P-1 in the case of Moody's and A-1+ in the case of DCR;
provided that so long as Washington Mutual is the Servicer, any account
maintained with the Servicer shall be an Eligible Account if the long-term
unsecured debt obligations of Washington Mutual are rated not lower than A2 by
Moody's, (ii) an account or accounts the deposits in which are fully insured by
the FDIC, provided that any such deposits not so insured shall be otherwise
maintained such that (as evidenced by an Opinion of Counsel delivered to the
Grantor Trustee and the Rating Agencies) the applicable 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 with
which such account is maintained, (iii) a trust account or accounts maintained
with the Grantor Trustee or the trust department of a federal or state chartered
depository institution or trust company acting in its fiduciary capacity,
provided that any such state chartered depository institution is subject to
regulation regarding funds on deposit substantially similar to the regulations
set forth in 12 C.F.R. Section 9.10(b) or (iv) any account maintained at any
Federal Home Loan Bank.
"Eligible Investments": Those investments so designated pursuant to
Section 7.05 hereof.
"▇▇▇▇▇▇ Mae": Federal National Mortgage Association, a federally-chartered
and privately-owned corporation existing under the Federal National Mortgage
Association Charter Act, as amended, or any successor thereof.
"FDIC": The Federal Deposit Insurance Corporation, a corporate
instrumentality of the United States, or any successor thereto.
"Floating Pass-Through Rate": For any Distribution Date and the Class 4
A-2 Floating Rate Certificates, Class 5 A-3 Floating Rate Certificates and Class
6 A-3 Floating Rate Certificates, LIBOR plus 0.54%, 0.22% and 0.26% per annum,
respectively, plus the Certificate Rate for the related Class of REMIC
Certificates for the immediately preceding REMIC Distribution Date, minus the
Certificate Rate for such Class of REMIC Certificates for the initial REMIC
Distribution Date.
"Floating Rate Certificate": Any of the Class 4 A-2 Floating Rate
Certificates, Class 5 A-3 Floating Rate Certificates or Class 6 A-3 Floating
Rate Certificates.
"Floating Rate Certificate Principal Balance": The Class 4 A-2 Certificate
Principal Balance, the Class 5 A-3 Certificate Principal Balance or the Class 6
A-3 Certificate Principal Balance, as applicable.
5
"▇▇▇▇▇▇▇ Mac": The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created pursuant to the Emergency Home
Finance Act of 1970, as amended, or any successor thereof.
"Grantor Trust Account": The certificate account established in accordance
with Section 7.02 hereof and maintained in the corporate trust department of the
Grantor Trustee; provided that the funds in such account shall not be commingled
with other funds held by the Grantor Trustee.
"Grantor Trustee": Bank One, National Association, a national banking
association, not in its individual capacity but solely as Grantor Trustee under
this Agreement, and any successor hereunder.
"Highest Lawful Rate": As defined in Section 11.13.
"Indirect Participants": Entities, such as banks brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with a
DTC Participant, either directly or indirectly.
"Interest Carry Forward Amount": With respect to each Class of Floating
Rate Certificates, on any Distribution Date, the amount, if any, by which (i)
the sum of (A) the related Interest Distribution Amount as of the immediately
preceding Distribution Date and (B) any related unpaid Interest Carry Forward
Amount from all previous Distribution Dates exceeds (ii) the amount of the
actual distribution with respect to interest made to the Holders of the related
Floating Rate Certificates on such immediately preceding Distribution Date.
"Interest Distribution Amount": For each Class of Floating Rate
Certificates, as of any Distribution Date on or prior to the date on which the
related Swap Agreement terminates, interest accrued during the related Accrual
Period on the Floating Rate Certificate Principal Balance of such Class at the
Floating Pass-Through Rate for such Class and Distribution Date, minus any
Realized Losses applied to reduce interest payable on the related class of REMIC
Certificates on the immediately preceding REMIC Distribution Date. For each
Class of Floating Rate Certificates, as of any Distribution Date after the date
on which the related Swap Agreement terminates, interest payable on the related
Class of REMIC Certificates pursuant to the terms of the Pooling and Servicing
Agreement.
"LIBOR": With respect to any Accrual Period for the Floating Rate
Certificates, the rate determined by the Calculation Agent on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided that if such rate does not appear on Telerate Page
3750, the rate for such date and Class of Floating Rate Certificates will be
determined on the basis of the rates at which one-month U.S. dollar deposits in
amounts equal to the Floating Rate Certificate Principal Balance of the related
Class to leading European banks are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Calculation Agent will request the
principal
6
London office of each of the Reference Banks to provide a quotation of its rate.
If at least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Calculation Agent, at
approximately 11:00 a.m. (New York City time) on such date for one-month U.S.
dollar loans in amounts equal to the Floating Rate Certificate Principal Balance
of the related Class to leading European banks.
"LIBOR Determination Date": With respect to any Accrual Period for the
Certificates, two London and New York Banking Days preceding the commencement of
such Accrual Period.
"London and New York Banking Day": Any day on which commercial banks are
open for business (including dealings in foreign exchange and foreign currency
options) in London and New York City.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
"Officer's Certificate": A certificate signed by any Authorized Officer of
any Person delivering such certificate delivered hereunder.
"Opinion of Counsel": A written opinion of counsel, who may be counsel to
the Depositor or the Servicer, reasonably acceptable to the Grantor Trustee.
"Outstanding": With respect to all Certificates of a Class, as of any date
of determination, all such Floating Rate Certificates theretofore executed and
delivered hereunder except:
(i) Floating Rate Certificates theretofore canceled by the
Registrar or delivered to the Registrar for cancellation;
(ii) Floating Rate Certificates or portions thereof for which
full and final payment of money in the necessary amount has been theretofore
deposited with the Grantor Trustee in trust for the Holders of such Floating
Rate Certificates;
(iii) Floating Rate Certificates in exchange for or in lieu of
which other Floating Rate Certificates have been executed and delivered pursuant
to this Agreement, unless proof satisfactory to the Grantor Trustee is presented
that any such Floating Rate Certificates are held by a bona fide purchaser;
(iv) Floating Rate Certificates alleged to have been
destroyed, lost or stolen for which replacement Floating Rate Certificates have
been issued as provided for in Section 5.05 hereof; and
(v) Floating Rate Certificates as to which the Grantor Trustee
has made the final distribution thereon, whether or not such Floating Rate
Certificate is ever returned to the Grantor Trustee.
7
"Percentage Interest": With respect to a Class of the Floating Rate
Certificates, a fraction, expressed as a percentage, the numerator of which is
the initial Floating Rate Certificate Principal Balance represented by such
Certificate and the denominator of which is the aggregate initial Floating Rate
Certificate Principal Balance represented by all the Floating Rate Certificates
in such Class.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Pooling and Servicing Agreement": The Pooling and Servicing Agreement,
dated as of November 1, 1999, among the Depositor, Washington Mutual, as seller
and servicer, and Bank One, National Association, as trustee.
"Principal Distribution Amount": For each Class, as of any Distribution
Date, the payment received by the Trust in respect of principal of the related
Class of REMIC Certificates on the immediately preceding REMIC Distribution
Date.
"Rating Agencies": Collectively, Moody's, DCR or any successors thereto.
"Realized Losses": As defined in the Pooling and Servicing Agreement.
"Record Date": With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which the
applicable Distribution Date occurs.
"Reference Banks": Any four major banks in the London interbank market
selected by the Calculation Agent.
"Register": The register maintained by the Registrar in accordance with
Section 5.04 hereof, in which the names of the Holders are set forth.
"Registrar": The Grantor Trustee, acting in its capacity as Registrar
appointed pursuant to Section 5.04 hereof.
"REMIC Distribution Date": The 19th calendar day of each month, commencing
December 19, 1999, or if such day is not a Business Day, the next Business Day.
"Servicer": Washington Mutual Bank, FA, as servicer under the Pooling and
Servicing Agreement.
"Startup Day": December 3, 1999.
"Swap Payment": On each Swap Payment Date and with respect to each Swap
Agreement, (A) the amount that is payable to the Grantor Trustee from the Swap
Counterparty equal to the Interest Distribution Amount on the related Class of
Floating Rate Certificates on the
8
related Distribution Date or (B) the amount that is payable to the Swap
Counterparty from the Grantor Trustee, equal to the Current Interest received on
such Distribution Date on the related Class of REMIC Certificates, in each case
in accordance with the terms of the related Swap Agreement.
"Swap Payment Date": Each Distribution Date.
"Tax Return": The federal income tax return to be filed on behalf of the
Trust together with any and all other information reports or returns that may be
required to be furnished to the Holders of the Certificates or filed with the
Internal Revenue Service as any other governmental taxing authority under any
applicable provision of federal, state or local tax laws.
"Telerate Page 3750": The display designated as page "3750" on the Dow
▇▇▇▇▇ Telerate Service (or such other page as may replace page 3750 on that
report for the purpose of displaying London interbank offered rates of major
banks).
"Trust": Washington Mutual Bank, FA Series 1999-WM1 Grantor Trust, the
trust created under this Agreement.
"Trust Estate": As defined in the conveyance clause under this Agreement.
"Voting Rights": The portion of the aggregate voting rights of all the
Floating Rate Certificates evidenced by a Floating Rate Certificate, which will
be allocated to the Floating Rate Certificates (without regard to Class) in
proportion to their respective initial Floating Rate Certificate Principal
Balances.
"Washington Mutual": Washington Mutual Bank, FA, and its successors and
assigns.
Section 1.02 USE OF WORDS AND PHRASES.
"Herein", "hereby", "hereunder", "hereof", "hereinbefore", "hereinafter"
and other equivalent words refer to this Agreement as a whole and not solely to
the particular section of this Agreement in which any such word is used. The
definitions set forth in Section 1.01 hereof include both the singular and the
plural. Whenever used in this Agreement, any pronoun shall be deemed to include
both singular and plural and to cover all genders.
Section 1.03 CAPTIONS; TABLE OF CONTENTS.
The captions or headings in this Agreement and the Table of Contents are
for convenience only and in no way define, limit or describe the scope and
intent of any provisions of this Agreement.
Section 1.04 OPINIONS.
Each opinion with respect to the validity, binding nature and
enforceability of documents or Floating Rate Certificates may be qualified to
the extent that the same may be limited by
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applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
principles of equity (whether considered in a proceeding or action in equity or
at law) and may state that no opinion is expressed on the availability of the
remedy of specific enforcement, injunctive relief or any other equitable remedy.
Any opinion required to be furnished by any Person hereunder must be delivered
by counsel upon whose opinion the addressee of such opinion may reasonably rely,
and such opinion may state that it is given in reasonable reliance upon an
opinion of another, a copy of which must be attached, concerning the laws of a
foreign jurisdiction.
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ARTICLE II
ESTABLISHMENT AND ORGANIZATION OF THE TRUST
Section 2.01 ESTABLISHMENT OF THE TRUST.
The parties hereto do hereby create and establish, pursuant to the laws of
the State of New York and this Agreement, the Trust, which, for convenience,
shall be known as "Washington Mutual Bank, FA Series 1999-WM1 Grantor Trust".
Section 2.02 OFFICE.
The office of the Trust shall be in care of the Grantor Trustee, addressed
to ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Corporate Trust
Services, or at such other address as the Grantor Trustee may designate by
notice to the Depositor and the Servicer.
Section 2.03 PURPOSES AND POWERS.
The purpose of the Trust is to engage in the following activities and only
such activities: (i) the issuance of the Floating Rate Certificates and
distribution of payments thereon, the acquiring, owning and holding of the REMIC
Certificates, executing each Swap Agreement and making and receiving payments
thereunder in connection therewith; (ii) activities that are necessary, suitable
or convenient to accomplish the foregoing or are incidental thereto or connected
therewith, including the investment of moneys in accordance with this Agreement;
and (iii) such other activities as may be required in connection with
conservation of the Trust Estate and distributions to the Holders.
Section 2.04 APPOINTMENT OF THE GRANTOR TRUSTEE; DECLARATION OF TRUST.
The Depositor hereby appoints the Grantor Trustee as Grantor Trustee of
the Trust effective as of the Startup Day, to have all the rights, powers and
duties set forth herein. The Grantor Trustee hereby acknowledges and accepts
such appointment, represents and warrants its eligibility as of the Startup Day
to serve as Grantor Trustee pursuant to Section 10.06 hereof and declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the benefit of the Holders.
Section 2.05 EXPENSES OF THE TRUST.
The expenses of the Trust, including any fees payable to the Grantor
Trustee, shall be paid by Washington Mutual pursuant to a separate agreement
between Washington Mutual and the Grantor Trustee.
Section 2.06 OWNERSHIP OF THE TRUST.
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On the Startup Day the ownership interests in the Trust shall be
transferred as set forth in Section 4.02 hereof, such transfer to be evidenced
by sale of the Floating Rate Certificates as described therein. Thereafter,
transfer of any ownership interest shall be governed by Sections 5.04 hereof.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEPOSITOR
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents, warrants and covenants to the Grantor
Trustee and the Holders that as of the Startup Day:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and is
in good standing as a foreign corporation in each jurisdiction in which the
nature of its business, or the properties owned or leased by it make such
qualification necessary. The Depositor has all requisite corporate power and
authority to own and operate its properties, to carry out its business as
presently conducted and as proposed to be conducted and to enter into and
discharge its obligations under this Agreement.
(b) The execution and delivery of this Agreement by the Depositor
and its performance and compliance with the terms of this Agreement have been
duly authorized by all necessary corporate action on the part of the Depositor
and will not violate the Depositor's Certificate of Incorporation 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 a breach of, any material
contract, agreement or other instrument to which the Depositor is a party or by
which the Depositor is bound or violate any statute or any order, rule or
regulation of any court, governmental agency or body or other tribunal having
jurisdiction over the Depositor or any of its properties.
(c) Assuming due authorization, execution and delivery by the other
parties hereto, this Agreement each constitutes a valid, legal and binding
obligation of the Depositor, enforceable against it in accordance with the terms
hereof, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(d) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default would materially and adversely
affect the condition (financial or other) or operations of the Depositor or its
properties or the consequences of which would materially and adversely affect
its performance hereunder.
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(e) No litigation is pending with respect to which the Depositor has
received service of process or, to the best of the Depositor's knowledge,
threatened against the Depositor which litigation might have consequences that
would prohibit its entering into this Agreement or that would materially and
adversely affect the condition (financial or otherwise) or operations of the
Depositor or its properties or might have consequences that would materially and
adversely affect its performance hereunder.
It is understood and agreed that the representations and warranties set
forth in this Section 3.01 shall survive delivery of the REMIC Certificates to
the Grantor Trustee.
Section 3.02 CONVEYANCE OF THE REMIC CERTIFICATES.
On the Startup Day the Depositor, concurrently with the execution and
delivery hereof, hereby sells, transfers, assigns, delivers, sets over and
otherwise conveys, without recourse, to the Trust all of its respective right,
title and interest in and to the Trust Estate. It is the express intent of the
Depositor and the Grantor Trustee that the conveyance by the Depositor to the
Grantor Trustee of the Depositor's right, title and interest in and to the Trust
Estate be, and be construed as, an absolute sale and assignment by the Depositor
to the Grantor Trustee of the Trust Estate for the benefit of the
Certificateholders. Further, it is not intended that the conveyance be deemed to
be a pledge of the Trust Estate by the Depositor to the Grantor Trustee to
secure a debt or other obligation. However, in the event that the Trust Estate
is held to be property of the Depositor, or if for any reason this Agreement is
held or deemed to create a security interest in the Trust Estate, then it is
intended that (i) this Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code
and the Uniform Commercial Code of any other applicable jurisdiction; (ii) the
conveyances provided for herein shall be deemed to be a grant by the Depositor
to the Grantor Trustee on behalf of the Certificateholders, to secure payment in
full of the Secured Obligations (as defined below), of a security interest in
all of the Depositor's right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to the Trust
Estate including all accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and investment property and all cash and non-cash
proceeds of any of the foregoing; (iii) the possession or control by the Grantor
Trustee or any other agent of the Grantor Trustee of the Trust Estate or such
other items of property as constitute instruments, money, documents, advices of
credit, letters of credit, goods, certificated securities or chattel paper shall
be deemed to be a possession or control by the secured party, or possession or
control by a purchaser, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-305 or 9-115 thereof); and (iv) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for, the Grantor Trustee, as applicable, for the purpose of perfecting
such security interest under applicable law. "Secured Obligations" means (i) the
rights of each Certificateholder to be paid any amount owed to it under this
Agreement, (ii) all other obligations of the Depositor under this Agreement and
(iii) the right of the Certificateholders to the Trust Estate.
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The Depositor, and, at the Depositor's direction, the Grantor Trustee,
shall, to the extent consistent with this Agreement, take such reasonable
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Trust Estate and the other property described
above, such security interest would be deemed to be a perfected security
interest of first priority as applicable. The Depositor shall file, at its
expense, all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in any
jurisdiction to perfect the Grantor Trustee's security interest in the Trust
Estate, including without limitation (i) continuation statements, (ii) such
other statements as may be occasioned by any transfer of any interest of the
Depositor in the Trust Estate; and (iii) filings necessary as a result in any
change in the Uniform Commercial Code.
Section 3.03 ACCEPTANCE BY TRUSTEE
The Grantor Trustee hereby acknowledges receipt of each of the REMIC
Certificates and each Swap Agreement and declares that it will hold such
documents and any amendments, replacement or supplements thereto, as well as any
other assets included in the definitions of Trust Estate and delivered to the
Trustee, as Trustee in trust upon and subject to the conditions set forth herein
for the benefit of the Holders.
ARTICLE IV
ISSUANCE AND SALE OF CERTIFICATES
Section 4.01 ISSUANCE OF CERTIFICATES.
On the Startup Day the Grantor Trustee, pursuant to the written request of
the Depositor executed by an officer of the Depositor, shall execute and cause
the Floating Rate Certificates to be authenticated and delivered to or upon the
order of the Depositor in authorized denominations.
Section 4.02 SALE OF CERTIFICATES.
At 11 a.m. New York City time on the Startup Day (the "Closing"), at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, the Depositor will sell and convey the REMIC Certificates to the Grantor
Trustee, and the Grantor Trustee will deliver to the Depositor each Class of the
Floating Rate Certificates each with a Percentage Interest equal to 100%,
registered in the name of Cede & Co., or in such other names as the Depositor
shall direct.
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ARTICLE V
FLOATING RATE CERTIFICATES AND TRANSFER OF INTERESTS
Section 5.01 TERMS.
(a) The Floating Rate Certificates are pass-through securities
having the rights described therein and herein. Notwithstanding references
herein or therein with respect to the Floating Rate Certificates to "principal"
and "interest", no debt of any Person is represented thereby, nor are the
Floating Rate Certificates guaranteed by any Person. Each Class of the Floating
Rate Certificates is payable solely from payments received on or with respect to
the Class 4 A-2 REMIC Certificates and the related Swap Agreement, in the case
of the Class 4 A-2 Floating Rate Certificates, the Class 5 A-3 REMIC
Certificates and the related Swap Agreement, in the case of the Class 5 A-3
Floating Rate Certificates, and the Class 6 A-3 REMIC Certificates and the
related Swap Agreement, in the case of the Class 6 A-3 Floating Rate
Certificates, moneys in the Grantor Trust Account, and the proceeds of property
held as a part of the Trust Estate. Each Floating Rate Certificate entitles the
Holder thereof to receive monthly on each Distribution Date, in order of
priority of distributions with respect to such Floating Rate Certificates as set
forth in Section 7.03, a specified portion of such payments, pro rata in
accordance with such Holder's Percentage Interest in such Class.
(b) The Grantor Trustee will notify each Holder of the final
distribution on such Holder's Certificate, and such final payment shall be made
upon presentation and surrender of such Certificate.
Section 5.02 FORMS.
The Floating Rate Certificates shall be in substantially the form set
forth in Exhibit A hereof with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the Depositor's judgment be necessary, appropriate or
convenient to comply, or facilitate compliance, with applicable laws, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
applicable securities laws.
Section 5.03 EXECUTION, AUTHENTICATION AND DELIVERY.
Each Floating Rate Certificate shall be executed and authenticated by the
manual or facsimile signature of one of the Grantor Trustee's Authorized
Officers. Upon proper authentication by the Grantor Trustee, the Certificates
shall bind the Trust.
The initial Floating Rate Certificates shall be dated as of the Startup
Day and delivered at the Closing to the parties specified in Section 4.02
hereof. Subsequently issued Certificates will be dated as of the issuance of the
Certificate.
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No Certificate shall be valid until executed and authenticated as set
forth above.
Section 5.04 REGISTRATION AND TRANSFER OF CERTIFICATES.
(a) The Grantor Trustee shall cause to be kept a register (the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Grantor Trustee shall provide for the registration of Floating
Rate Certificates and the registration of transfer of Floating Rate
Certificates. The Grantor Trustee is hereby appointed Registrar for the purpose
of registering Floating Rate Certificates and transfers of Floating Rate
Certificates as herein provided.
(b) At the option of any Holder, Floating Rate Certificates of any
Class owned by such Holder may be transferred or exchanged for other Floating
Rate Certificates authorized of like Class and tenor and a like aggregate
original principal amount or Percentage Interest and bearing numbers not
contemporaneously outstanding, upon surrender of the Floating Rate Certificates
to be transferred or exchanged at the office designated as the location of the
Register. Whenever any Floating Rate Certificate is so surrendered for exchange,
the Grantor Trustee shall execute, authenticate and deliver the Floating Rate
Certificate or Certificates which the Holder making the exchange is entitled to
receive. Any transfer of a Floating Rate Certificate is subject to the transfer
restrictions set forth in Section 5.04(d).
(c) All Floating Rate Certificates issued upon any registration of
transfer or exchange of Floating Rate Certificates shall be valid evidence of
the same ownership interests in the Trust and entitled to the same benefits
under this Agreement as the Floating Rate Certificates surrendered upon such
registration of transfer or exchange.
(d) Every Floating Rate Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Registrar duly
executed by the Holder thereof or his attorney duly authorized in writing. No
transfer of a Floating Rate Certificate shall be made to any employee benefit or
other plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Code, to a trustee or other
person acting on behalf of any such plan, or to any other person using "plan
assets" to effect such acquisition (each, a "Plan Investor"), unless the
prospective transferee of a Certificateholder desiring to transfer its Floating
Rate Certificate provides the Grantor Trustee with either (A) an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Grantor
Trustee and the Depositor to the effect that the purchase or holding of such
Floating Rate Certificate is permissible under applicable law, will not
constitute or result in any non-exempt prohibited transaction under Section 406
of ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), and will not subject the Grantor Trustee, the Depositor
or the Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement or the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be an expense of the Grantor Trustee, the Depositor
or the Servicer; or (B) the prospective transferee shall be required to provide
the Grantor Trustee and the Depositor with a certification, which the Grantor
Trustee and the Depositor may rely upon without further inquiry or
investigation, or such other certifications as
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the Grantor Trustee or the Depositor may deem desirable or necessary in order to
establish that such transferee or the Person in whose name such registration is
requested either (a) is not a Plan Investor or (b) one or more of the following
class exemptions are applicable to the holding by the prospective transferee of
the Floating Rate Certificates by or with Plan Assets of a Plan: (i) Prohibited
Transaction Class Exemption ("PTCE") ▇▇-▇▇, (▇▇) ▇▇▇▇ ▇▇-▇▇, (▇▇▇) PTCE 91-38,
(iv) PTCE 90-1; or (v) PTCE 84-14. Notwithstanding the foregoing, an Opinion of
Counsel or certification will not be required with respect to the transfer of
any Floating Rate Certificate for so long as such Floating Rate Certificate is
held in the name of a Depository or its nominee (each such Floating Rate
Certificate, a "Book-Entry Certificate"). Any transferee of a Book-Entry
Certificate will be deemed to have represented by virtue of its purchase or
holding of such Book-Entry Certificate (or interest therein) that either (a)
such transferee is not a Plan Investor or (b) one or more of the following class
exemptions are applicable to the holding by the prospective transferee of the
Floating Rate Certificates by or with Plan Assets of a Plan: (i) Prohibited
Transaction Class Exemption ("PTCE") ▇▇-▇▇, (▇▇) ▇▇▇▇ ▇▇-▇▇, (▇▇▇) PTCE 91-38,
(iv) PTCE 90-1; or (v) PTCE 84-14. If any Book-Entry Certificate (or any
interest therein) is acquired or held in violation of the provisions of clause
(b) above, then the last preceding transferee that either (i) is not a Plan
Investor or (ii) whose holding is exempt as provided in clause (b) above shall
be restored, to the extent permitted by law, to all rights and obligations as
Certificateholder thereof retroactive to the date of such transfer of such
Book-Entry Certificate. Any purported Certificateholder whose acquisition or
holding of any Book-Entry Certificate (or interest therein) was effected in
violation of the restrictions in this Section 5.04(d) shall indemnify and hold
harmless the Depositor, the Grantor Trustee, the Servicer, and the Trust from
and against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding. The Grantor Trustee shall be
under no liability to any Person for making any payments due on any Certificate
to such preceding transferee that is not a Plan Investor or whose holding is
exempt as provided in clause (b) above.
(e) No service charge shall be made to a Holder for any registration
of transfer or exchange of Floating Rate Certificates, but the Registrar or
Grantor Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Floating Rate Certificates; any other
expenses in connection with such transfer or exchange shall be an expense of the
Trust.
(f) It is intended that the Floating Rate Certificates be registered
so as to participate in a global book entry system with the Depository, as set
forth herein. The Floating Rate Certificates shall, except as otherwise provided
in Subsection (g), be initially issued in the form of a single fully registered
Certificate of such Class. Upon initial issuance, the ownership of each such
Certificate shall be registered in the Register in the name of Cede & Co., or
any successor thereto, as nominee for the Depository.
The Floating Rate Certificates will be in fully-registered form only in
minimum denominations of $25,000 Certificate Principal Balance and integral
multiples of $1 in excess thereof.
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With respect to the Certificates registered in the Register in the name of
Cede & Co., as nominee of the Depository, the Depositor, the Servicer and the
Grantor Trustee shall have no responsibility or obligation to Direct or Indirect
Participants or beneficial owners for which the Depository holds Floating Rate
Certificates from time to time as a Depository. Without limiting the immediately
preceding sentence, the Depositor, the Servicer and the Grantor Trustee shall
have no responsibility or obligation with respect to (i) the accuracy of the
records of the Depository, Cede & Co., or any Direct or Indirect Participant
with respect to the ownership interest in the Certificates, (ii) the delivery to
any Direct or Indirect Participant or any other Person, other than a registered
Holder of a Certificate as shown in the Register, of any notice with respect to
the Floating Rate Certificates or (iii) the payment to any Direct or Indirect
Participant or any other Person, other than a registered Holder of a Certificate
as shown in the Register, of any amount with respect to any distribution of
principal or interest on the Floating Rate Certificates. No Person other than a
registered Holder of a Certificate as shown in the Register shall receive a
certificate evidencing such Certificate.
Upon delivery by the Depository to the Grantor Trustee of written notice
to the effect that the Depository has determined to substitute a new nominee in
place of Cede & Co., and subject to the provisions hereof with respect to the
payment of interest by the mailing of checks or drafts to the registered Holders
of Floating Rate Certificates appearing as registered Holders in the
registration books maintained by the Grantor Trustee at the close of business on
a Record Date, the name "Cede & Co." in this Agreement shall refer to such new
nominee of the Depository.
(g) In the event that (i) the Depository or the Depositor advises
the Grantor Trustee in writing that the Depository is no longer willing or able
to discharge properly its responsibilities as nominee and depository with
respect to the Floating Rate Certificates and the Depositor or the Grantor
Trustee is unable to locate a qualified successor or (ii) the Depositor at its
sole option elects to terminate the book-entry system through the Depository,
the Floating Rate Certificates shall no longer be restricted to being registered
in the Register in the name of Cede & Co. (or a successor nominee) as nominee of
the Depository. At that time, the Depositor may determine that the Floating Rate
Certificates shall be registered in the name of and deposited with a successor
depository operating a global book-entry system, as may be acceptable to the
Depositor and at the Depositor's expense, or such depository's agent or designee
but, if the Depositor does not select such alternative global book-entry system,
then the Floating Rate Certificates may be registered in whatever name or names
registered Holders of the Floating Rate Certificates transferring the Floating
Rate Certificates shall designate, in accordance with the provisions hereof.
(h) Notwithstanding any other provision of this Agreement to the
contrary, so long as any of the Floating Rate Certificates is registered in the
name of Cede & Co., as nominee of the Depository, all distributions of principal
or interest on such Floating Rate Certificates and all notices with respect to
such Floating Rate Certificates shall be made and given, respectively, to the
Depository.
Section 5.05 MUTILATED, DESTROYED, LOST OR STOLEN FLOATING RATE
CERTIFICATES.
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If (i) any mutilated Floating Rate Certificate is surrendered to the
Grantor Trustee, or the Grantor Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Floating Rate Certificate, and (ii) in the
case of any mutilated Floating Rate Certificate, such mutilated Floating Rate
Certificate shall first be surrendered to the Grantor Trustee, and in the case
of any destroyed, lost or stolen Floating Rate Certificate, there shall be first
delivered to the Grantor Trustee such security or indemnity as may be reasonably
required by it to hold the Grantor Trustee harmless, then, in the absence of
notice to the Grantor Trustee or the Registrar that such Floating Rate
Certificate has been acquired by a bona fide purchaser, the Depositor shall
execute and the Grantor Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Floating Rate
Certificate, a new Floating Rate Certificate of like Class, tenor and aggregate
principal amount, bearing a number not contemporaneously outstanding.
Upon the issuance of any new Floating Rate Certificate under this Section,
the Registrar or Grantor Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto; any other expenses in connection with such issuance shall be an expense
of the Trust.
Every new Floating Rate Certificate issued pursuant to this Section in
exchange for or in lieu of any mutilated, destroyed, lost or stolen Floating
Rate Certificate shall constitute evidence of a substitute interest in the
Trust, and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Floating Rate Certificates of the same
Class duly issued hereunder and such mutilated, destroyed, lost or stolen
Floating Rate Certificate shall not be valid for any purpose.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Floating Rate Certificates.
Section 5.06 PERSONS DEEMED OWNERS.
The Grantor Trustee and any agent of the Grantor Trustee may treat the
Person in whose name any Floating Rate Certificate is registered as the owner of
such Floating Rate Certificate for the purpose of receiving distributions with
respect to such Floating Rate Certificate and for all other purposes whatsoever
and neither the Grantor Trustee, the Servicer nor any agent of the Grantor
Trustee or the Servicer shall be affected by notice to the contrary.
Section 5.07 CANCELLATION.
All Floating Rate Certificates surrendered for registration of transfer or
exchange shall, if surrendered to any Person other than the Grantor Trustee, be
delivered to the Grantor Trustee and shall be promptly canceled by it. No
Floating Rate Certificate shall be authenticated in lieu of or in exchange for
any Floating Rate Certificate canceled as provided in this Section, except as
expressly permitted by this Agreement. All canceled Floating Rate Certificates
may be held by the Grantor Trustee in accordance with its standard retention
policy.
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Section 5.08 ASSIGNMENT OF RIGHTS.
A Holder may pledge, encumber, hypothecate or assign all or any part of
its right to receive distributions hereunder, but such pledge, encumbrance,
hypothecation or assignment shall not constitute a transfer of an ownership
interest sufficient to render the transferee a Holder of the Trust without
compliance with the provisions of Section 5.04 hereof.
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ARTICLE VI
COVENANTS
Section 6.01 DISTRIBUTIONS.
On each Distribution Date, the Grantor Trustee will withdraw amounts from
the Grantor Trust Account and make the distributions with respect to the
Floating Rate Certificates and each Swap Agreement in accordance with the terms
of the Floating Rate Certificates, each Swap Agreement and this Agreement. Such
distributions shall be made by wire transfer to the account specified in writing
by the Certificateholder to the Grantor Trustee if the Initial Certificate
Principal Balance evidenced by such Holder's Certificate is at least equal to
$2,500,000 or the Percentage Interest thereof is 100%. In each case, the account
must be specified in writing at least five Business Days prior to the Record
Date for the Distribution Date on which wire transfers will commence. All other
distributions shall be made by check payable to the Certificateholder mailed by
first class mail to the address of such Certificateholder reflected in the
Register.
Section 6.02 WITHHOLDING.
(a) The Grantor Trustee on behalf of the Trust to comply with all
requirements of the Code and applicable state and local law with respect to the
withholding from any distributions made by it to any Holder of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
(b) Any money held by the Grantor Trustee in trust for the payment
of any amount due with respect to any Certificate and remaining unclaimed by the
Holder of such Certificate for the period then specified in the escheat laws of
the State of New York after such amount has become due and payable shall be
discharged from such trust and paid to the Servicer; and the Holder of such
Certificate shall thereafter, as an unsecured general creditor, look only to
Servicer for payment thereof and all liability of the Grantor Trustee with
respect to such trust money shall thereupon cease; provided, however, that the
Grantor Trustee before being required to make any such payment, may, at the
expense of the Trust, cause to be published once, in the eastern edition of The
Wall Street Journal, notice that such money remains unclaimed and that, after a
date specified therein, which shall be not fewer than 30 days from the date of
such publication. The Grantor Trustee shall, at the direction of the Depositor,
also adopt and employ, at the expense of the Trust, any other reasonable means
of notification of such payment (including but not limited to mailing notice of
such payment to Holders whose right to or interest in moneys due and payable but
not claimed is determinable from the records of the Registrar or the Grantor
Trustee, at the last address of record for each such Holder).
Section 6.03 PROTECTION OF TRUST ESTATE.
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(a) The Grantor Trustee will hold the Trust Estate in trust for the
benefit of the Holders and will from time to time execute and deliver all such
supplements and amendments hereto pursuant to Section 11.14 hereof and all
instruments of further assurance and other instruments, and will take such other
action upon such request from the Depositor, to:
(i) more effectively hold in trust all or any portion of the
Trust Estate;
(ii) perfect, publish notice of, or protect the validity of
any grant made or to be made by this Agreement;
(iii) enforce the REMIC Certificates;
(iv) enforce each Swap Agreement; or
(v) preserve and defend title to the Trust Estate and the
rights of the Grantor Trustee, and the ownership interests of the Holders
represented thereby, in such Trust Estate against the claims of all Persons and
parties.
The Grantor Trustee shall send copies of any request received from the
Depositor to take any action pursuant to this Section 6.03 to the other parties
hereto.
(b) The Grantor Trustee shall have the power to enforce, and shall
enforce the obligations and rights of the other parties to this Agreement, the
rights of the Trust as owner of the REMIC Certificates, and the obligations of
the Swap Counterparty under each Swap Agreement. In addition, the Holders shall
also have the power to enjoin, by action or suit in equity, any acts or
occurrences which may be unlawful or in violation of the rights of the Holders
as such rights are set forth in this Agreement, provided, however, that nothing
in this Section shall require any action by the Grantor Trustee unless the
Grantor Trustee shall first (i) have been furnished indemnity satisfactory to it
and (ii) when required by this Agreement, have been requested by the Holders of
a majority of the Voting Rights represented by the Floating Rate Certificates
then Outstanding.
(c) The Grantor Trustee shall execute any instrument required
pursuant to this Section so long as such instrument does not conflict with this
Agreement or with the Grantor Trustee's fiduciary duties, or adversely affect
its rights and immunities hereunder.
Section 6.04 PERFORMANCE OF OBLIGATIONS.
The Grantor Trustee will not take any action that would release any Person
from any of such Person's covenants or obligations under any instrument or
document relating to the Floating Rate Certificates or the Swap Agreements or
which would result in the amendment, hypothecation, subordination, termination
or discharge of, or impair the validity or effectiveness of, any such instrument
or document, except as expressly provided in this Agreement or such other
instrument or document.
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The Grantor Trustee may contract with other Persons to assist it in
performing its duties hereunder pursuant to Section 10.02(g).
Section 6.05 NEGATIVE COVENANTS.
The Grantor Trustee will not permit the Trust to:
(i) sell, transfer, exchange or otherwise dispose of any of
the Trust Estate except as expressly permitted by this Agreement;
(ii) claim any credit on or make any deduction from the
distributions payable in respect of, the Floating Rate Certificates (other than
amounts properly withheld from such payments under the Code) or assert any claim
against any present or former Holder by reason of the payment of any taxes
levied or assessed upon any of the Trust Estate;
(iii) incur, assume or guaranty any indebtedness of any Person
except pursuant to this Agreement;
(iv) dissolve or liquidate in whole or in part, except
pursuant to Article IX hereof; or
(v) (A) permit the validity or effectiveness of this Agreement
to be impaired, or permit any Person to be released from any covenants or
obligations with respect to the Trust or to the Floating Rate Certificates or
the Swap Agreements under this Agreement, except as may be expressly permitted
hereby or (B) permit any lien, charge, adverse claim, security interest,
mortgage or other encumbrance to be created on or extend to or otherwise arise
upon or burden the Trust Estate or any part thereof or any interest therein or
the proceeds thereof.
Section 6.06 NO OTHER POWERS.
The Grantor Trustee will not permit the Trust to engage in any business
activity or transaction other than those activities permitted by Section 2.03
hereof.
Section 6.07 LIMITATION OF SUITS.
No Holder shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Agreement, any Swap Agreement or for the
appointment of a receiver or Grantor Trustee of the Trust, or for any other
remedy with respect to an event of default hereunder, unless:
(1) such Holder has previously given written notice to the
Depositor and the Grantor Trustee of such Holder's intention to institute such
proceeding;
(2) the Holders of not less than 25% of the Voting Rights
represented by the Floating Rate Certificates then Outstanding, shall have made
written request to the
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Grantor Trustee to institute such proceeding in its own name as Grantor Trustee
establishing the Trust;
(3) such Holder or Holders have offered to the Grantor Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Grantor Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such proceeding;
and
(5) no direction inconsistent with such written request has
been given to the Grantor Trustee during such 60-day period by the Holders of a
majority of the Voting Rights represented by the Floating Rate Certificates;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing themselves of, any
provision of this Agreement to affect, disturb or prejudice the rights of any
other Holder or to obtain or to seek to obtain priority or preference over any
other Holder or to enforce any right under this Agreement, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.
Section 6.08 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE DISTRIBUTIONS.
Notwithstanding any other provision in this Agreement, the Holder of any
Floating Rate Certificate shall have the right, which is absolute and
unconditional, to receive distributions to the extent provided herein and
therein with respect to such Floating Rate Certificate or to institute suit for
the enforcement of any such distribution, and such right shall not be impaired
without the consent of such Holder.
Section 6.09 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided herein, no right or remedy herein conferred
upon or reserved to the Grantor Trustee or the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. Except as otherwise provided herein, the assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.10 DELAY OR OMISSION NOT WAIVER.
No delay of the Grantor Trustee or any Holder of any Floating Rate
Certificate to exercise any right or remedy under this Agreement shall impair
any such right or remedy or constitute a waiver of any such event or an
acquiescence therein. Every right and remedy given by this Article VI or by law
to the Grantor Trustee or the Holders may be exercised from time to
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time, and as often as may be deemed expedient, by the Grantor Trustee or the
Holders, as the case may be.
Section 6.11 CONTROL BY HOLDERS.
The Holders of a majority of the Voting Rights represented by the Floating
Rate Certificates then Outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Grantor Trustee with
respect to the Floating Rate Certificates or exercising any trust or power
conferred on the Grantor Trustee with respect to the Floating Rate Certificates
or the Trust Estate, including, but not limited to, those powers set forth in
Section 6.03, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Agreement;
(2) the Grantor Trustee shall have been provided with
indemnity satisfactory to it; and
(3) the Grantor Trustee may take any other action deemed
proper by the Grantor Trustee, as the case may be, which is not inconsistent
with such direction; provided, however, that the Grantor Trustee need take any
action which it determines might involve it in liability or may be unjustly
prejudicial to the Holders not so directing.
Section 6.12 ACCESS TO CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders (i) request in writing
from the Grantor Trustee a list of the names and addresses of
Certificateholders, (ii) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Floating Rate Certificates and (iii) provide a copy
of the communication which such Certificateholders propose to transmit, then the
Grantor Trustee shall, within ten Business Days after the receipt of such
request, afford such Certificateholders access during normal business hours to a
current list of the Certificateholders. The expense of providing any such
information requested by a Certificateholder shall be borne by the
Certificateholders requesting such information and shall not be borne by the
Grantor Trustee. Every Certificateholder, by receiving and holding a Floating
Rate Certificate, agrees that the Grantor 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.
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ARTICLE VII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 7.01 COLLECTION OF MONEY.
Except as otherwise expressly provided herein, the Grantor Trustee shall
demand payment or delivery of all money and other property payable to or
receivable by the Grantor Trustee pursuant to this Agreement, each Swap
Agreement and the REMIC Certificates. The Grantor Trustee shall hold all such
money and property received by it hereunder as part of the Trust Estate and
shall apply it as provided in this Agreement.
Section 7.02 ESTABLISHMENT OF ACCOUNTS.
The Depositor shall cause to be established on the Startup Day, and the
Grantor Trustee shall maintain, at the Corporate Trust Office, the Grantor Trust
Account, which shall be an Eligible Account and is to be held by the Grantor
Trustee in trust on behalf of the Holders of the Floating Rate Certificates and
the Grantor Trustee. The Grantor Trust Account shall be identified as follows:
"Bank One, National Association, as Grantor Trustee under the Grantor Trust
Agreement dated as of December 3, 1999".
Section 7.03 FLOW OF FUNDS.
(a) The Grantor Trustee shall deposit to the Grantor Trust Account,
without duplication, upon receipt, all payments received under the Swap
Agreements, the proceeds of any liquidation of the assets of the Trust, the
Current Interest paid on each class of the REMIC Certificates and the Principal
Distribution Amount paid on each Class of the REMIC Certificates.
(b) On each Distribution Date, the Grantor Trustee will distribute
the payments received from the Swap Counterparty under each Swap Agreement to
the Holders of the related Class of Floating Rate Certificates, to be applied to
the Interest Distribution Amount.
(c) On each Distribution Date, the Grantor Trustee shall make the
following disbursements from the Current Interest in respect of the immediately
preceding REMIC Distribution Date on each class of REMIC Certificate in the
following order of priority:
(i) First, to the Swap Counterparty, any regularly scheduled
payment due to the Swap Counterparty under Section 2 of the related Swap
Agreement;
(ii) Second, to the Holders of the related Class of Floating
Rate Certificates, to be applied to the Interest Distribution Amount for such
Class of Floating Rate Certificates, and any amount in excess of the Interest
Distribution Amount (after taking into
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account payments made pursuant to Section 7.03(b) on such Distribution Date)
shall be applied to the related Interest Carry Forward Amount with respect
Floating Rate Certificates.
(d) On each Distribution Date, the Grantor Trustee shall pay 100% of
the Principal Distribution Amount received with respect to each class of REMIC
Certificates to the Holders of the related Class of Floating Rate Certificates.
(e) Any money remaining in the Grantor Trust Account will be paid to
the Holders of the Floating Rate Certificates in accordance with their
respective Voting Rights.
Section 7.04 INVESTMENT OF ACCOUNTS.
(a) All funds in the Grantor Trust Account shall be held (i)
uninvested (up to the limits insured by the FDIC) or (ii) invested in Eligible
Investments, at the direction of Washington Mutual. Any investments of funds in
the Grantor Trust Account shall mature or be withdrawable at par on or prior to
the Distribution Date on which they are to be distributed. Any investment
earnings net of investment losses on funds held in the Grantor Trust Account
shall be for the account of Washington Mutual. Any investment losses on funds
held in the Grantor Trust Account shall be for the account of Washington Mutual
and promptly upon the realization of such loss shall be contributed by
Washington Mutual to the Grantor Trust Account. Any references herein to amounts
on deposit in the Grantor Trust Account shall refer to amounts net of such
investment earnings.
(b) The Grantor Trustee may make withdrawals from the amounts on
deposit in the Grantor Trust Account, with respect to the REMIC Certificates,
for the following purposes:
(i) to make a disbursement to Washington Mutual on each
Distribution Date immediately prior to the disbursements under Section 7.03
hereof of investment earnings (net of investment losses) on amounts on deposit
in the Grantor Trust Account;
(ii) to withdraw amounts that have been deposited to the
Grantor Trust Account in error;
(iii) to make distributions to the Certificateholders pursuant
to Section 7.03; and
(iv) to clear and terminate the Grantor Trust Account
following the termination of the Trust pursuant to Article IX.
Section 7.05 ELIGIBLE INVESTMENTS.
The following are Eligible Investments:
(a) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the United States;
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(b) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
rating of Moody's and DCR, and will not result in the downgrading or withdrawal
of the rating, if any, then assigned to the Certificates by each applicable
Rating Agency;
(c) commercial paper (having original maturities of not more than
270 days) which is then rated in the highest commercial paper rating category of
Moody's and DCR, and will not result in the downgrading or withdrawal of the
rating then assigned to the Floating Rate Certificates by each applicable Rating
Agency;
(d) certificates of deposit, demand or time deposits, federal funds
or bankers' acceptances (in each case having maturities of not more than 365
days) 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 debt obligations of such depository
institution or trust company (or in the case of a depository institution or
trust company that is the principal subsidiary of a holding company, the
commercial paper or long-term debt obligations of such holding company) are then
rated in the highest rating category of Moody's and DCR, in the case of
commercial paper, and in the highest category in the case of long-term debt
obligations, and will not result in the downgrading or withdrawal of the rating
then assigned to the Floating Rate Certificates by each applicable Rating
Agency, and, in the case of short-term debt obligations which have maturities of
30 days or less, a rating of P-1 by Moody's, and a rating of A-1+ by DCR;
(e) demand or time deposits or certificates of deposit issued by (i)
any Federal Home Loan Bank or (ii) any bank or trust company or savings
association which is rated at least "A" by DCR which has combined capital,
surplus and undistributed profits of not less than $50 million and fully insured
by the FDIC;
(f) repurchase obligations with respect to any security described in
(a) and (b) above or any other security issued or guaranteed by an agency or
instrumentality of the United States, in either case entered into with a
depository institution or trust company (acting as principal) described in (d)
above;
(g) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any state
thereof which, at the time of such investment or contractual commitment
providing for such investments are then rated in the highest rating category of
Moody's and DCR or in such lower rating category as will not result in the
downgrading or withdrawal of the rating, if any, then assigned to the Floating
Rate Certificates by each applicable Rating Agency; and
(h) units of taxable money-market portfolios rated in the highest
rating category by Moody's and DCR and not restricted to obligations issued or
guaranteed by any agency or instrumentality of the United States or entities
whose obligations are backed by the full faith and credit of the United States
and repurchase agreements collateralized by such obligations.
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provided that (1) such obligation or security is held for a temporary period
pursuant to Treasury Regulations Section 1.860G-2(g)(1), and (2) Eligible
Investments shall include only such obligations or securities that are payable
on demand or mature on or before the Business Day immediately preceding the next
Distribution Date with respect to amounts on deposit in the Grantor Trust
Account. In addition, no Eligible Investment which incorporates a penalty for
early withdrawal will be used unless the maturity of such Eligible Investment is
on or before the Business Day immediately preceding the next Distribution Date.
Section 7.06 ACCOUNTING BY GRANTOR TRUSTEE.
The Grantor Trustee shall provide to the Calculation Agent the
information required to be provided by the Grantor Trustee pursuant to each Swap
Agreement shall determine (a) the payment due to the Grantor Trustee under each
Swap Agreement and (b) the payment due to the Swap Counterparty under each Swap
Agreement not later than 12:00 noon on the Business Day immediately preceding
the related Distribution Date and the Grantor Trustee shall notify the Swap
Counterparty of such amounts to be received and to be paid under the related
Swap Agreement.
Section 7.07 REPORTS BY GRANTOR TRUSTEE TO HOLDERS.
(a) On each Distribution Date the Grantor Trustee shall report in
writing to the Depositor, each Holder and the Rating Agencies:
(i) the aggregate amount of the distribution with respect to
such Holders' Floating Rate Certificates;
(ii) the amount of such Holder's distributions allocable to
principal;
(iii) the amount of such Holder's distributions allocable to
interest;
(iv) the Interest Carry Forward Amount remaining unpaid, if
any after giving effect to the distributions made on such Distribution Date;
(v) the Floating Rate Certificate Principal Balance of such
Class of Floating Rate Certificates which will be Outstanding after giving
effect to any payment of principal on such Distribution Date;
(vi) based upon information furnished by the Depositor, such
information as may be required by Section 6049(d)(7)(C) of the Code and the
regulations promulgated thereunder to assist the Holders in computing their
market discount;
(vii) the amount of the Swap Payment received from the Swap
Counterparty and the amount of the Swap Payment paid by the Grantor Trustee to
the Swap Counterparty on the applicable Swap Payment Date;
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(viii) all information received by the Grantor Trust as Holder
of the related class of REMIC Certificates; and
(ix) the Floating Pass-Through Rate with respect to such Class
and such Distribution Date.
Section 7.08 REPORTS BY GRANTOR TRUSTEE.
The Grantor Trustee shall report to the Depositor, and Washington
Mutual, with respect to the amount on deposit in the Grantor Trust Account and
the identity of the investments included therein, as the Depositor or the
Servicer may from time to time request. Without limiting the generality of the
foregoing, the Grantor Trustee shall, at the request of the Depositor transmit
promptly to the Depositor copies of all accounting of receipts in respect of the
REMIC Certificates furnished to it by the Servicer.
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ARTICLE VIII
SWAP AGREEMENTS
Section 8.01 TERMINATION OF SWAP AGREEMENTS.
The Grantor Trustee shall give prompt written notice to the Holders of the
related Class of Floating Rate Certificates if, pursuant to the terms of a Swap
Agreement, the Swap Agreement is terminable by the Grantor Trustee prior to the
Conversion Date. The Grantor Trustee will terminate such Swap Agreement if
directed to do so by the Holders of 66-2/3% of the Percentage Interests of the
related Class of Floating Rate Certificates.
Section 8.02 TRANSFER OF SWAP AGREEMENTS.
The Grantor Trustee shall give prompt written notice to the Holders of the
related Class of Floating Rate Certificates if, pursuant to the terms of a Swap
Agreement, the Grantor Trustee has the right or obligation to direct the Swap
Counterparty to transfer its rights and obligations under the Swap Agreement to
a successor swap counterparty or to replace the Swap Agreement with another swap
agreement containing substantially similar terms, or to take any other action or
to consent to any action or inaction on the part of the Swap Counterparty
pursuant to the terms of such Swap Agreement. Any such notice shall include the
circumstances under which such right or obligation arose. The Grantor Trustee
will act pursuant to such Swap Agreement in accordance with the directions of
the Holders of 66-2/3% of the Percentage Interests of the related Class of
Floating Rate Certificates.
The Grantor Trustee shall give written notice to Moody's of the
downgrading of the short-term or long-term debt obligations of the Swap
Counterparty by Moody's promptly after receiving notice of such event from the
Swap Counterparty pursuant to the Swap Agreement.
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ARTICLE IX
TERMINATION OF TRUST
Section 9.01 TERMINATION OF TRUST.
The Trust created hereunder and all obligations created by this Agreement
will terminate upon the earlier of (a) the payment to the Holders of all
Floating Rate Certificates of all amounts held by the Grantor Trustee and
required to be paid to such Holders pursuant to this Agreement following the
final payment or other liquidation (or any advance made with respect thereto) of
all of the REMIC Certificates and the Swap Agreements and (b) the consent of
100% of the Certificateholders together with the consent of the Grantor Trustee
(which consent shall not be unreasonably withheld) to terminate the Trust
created hereunder following the termination of all of the Swap Agreements. If
the Trust is terminated pursuant to clause (b) of this Section 9.01, the Grantor
Trustee shall transfer all of its right, title and interest in and to the REMIC
Certificates to the Holders of the related Floating Rate Certificates in
accordance with their respective Percentage Interests, such transfer to be
effected in accordance with the Pooling and Servicing Agreement. In no event,
however, will the Trust created by this Agreement continue beyond the expiration
of twenty-one (21) years from the death of the last survivor of the descendants
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of
Saint ▇▇▇▇▇, living on the date hereof. The Grantor Trustee shall give written
notice of termination of the Agreement to each Holder in the manner set forth in
Section 11.05.
Section 9.02 DISPOSITION OF PROCEEDS.
The Grantor Trustee shall, upon receipt thereof, deposit the proceeds of
any liquidation of the Trust Estate pursuant to this Article IX to the Grantor
Trust Account.
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ARTICLE X
THE GRANTOR TRUSTEE
Section 10.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Grantor Trustee (i) (A) undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement against the
Grantor Trustee and (B) the banking institution that is the Grantor Trustee
shall serve as the Grantor Trustee at all times under this Agreement, and (ii)
in the absence of bad faith on its part, may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished pursuant to and conforming to the
requirements of this Agreement; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Grantor Trustee, shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Grantor Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Grantor Trustee shall not be personally liable for any
error of judgment made in good faith by an Authorized Officer, unless it shall
be proved that the Grantor Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Grantor Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of 25% or more of the Percentage Interests of the
Floating Rate Certificates of the affected Class or Classes relating to the
time, method and place of conducting any proceeding for any remedy available to
the Grantor Trustee, or exercising any trust or power conferred upon the Grantor
Trustee, under this Agreement relating to such Floating Rate Certificates.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Grantor Trustee shall be subject to the provisions
of this Section.
(d) No provision of this Agreement shall require the Grantor Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
33
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) The permissive right of the Grantor Trustee to take actions
enumerated in this Agreement shall not be construed as a duty and the Grantor
Trustee shall not be answerable for other than its own negligence or willful
misconduct.
(f) The Grantor Trustee shall be under no obligation to institute
any suit, or to take any remedial proceeding under this Agreement, or to take
any steps in the execution of the trusts hereby created or in the enforcement of
any rights and powers hereunder until it shall be indemnified to its
satisfaction against any and all costs and expenses, outlays and counsel fees
and other reasonable disbursements and against all liability, except liability
which is adjudicated to have resulted from its negligence or willful misconduct,
in connection with any action so taken.
Section 10.02 CERTAIN RIGHTS OF THE GRANTOR TRUSTEE.
Except as otherwise provided in Section 10.01 hereof:
(a) the Grantor Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Depositor or the Holders of any
Class of Floating Rate Certificates mentioned herein shall be sufficiently
evidenced in writing;
(c) whenever in the administration of this Agreement the Grantor
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Grantor Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Grantor Trustee may consult with counsel, and the written
advice of such counsel (selected in good faith by the Grantor Trustee) or any
Opinion of Counsel to any of the other parties hereto shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reasonable reliance thereon;
(e) the Grantor Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement at the request or
direction of any of the Holders pursuant to this Agreement, unless such Holders
shall have offered to the Grantor Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Grantor 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, direction, consent, order, bond,
note or other paper or document, but the Grantor Trustee
34
in its discretion may make such further inquiry or investigation into such facts
or matters as it may see fit;
(g) the Grantor Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys or custodians;
(h) the Grantor Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be authorized by
the Authorized Officer of any Person or within its rights or powers under this
Agreement other than as to validity and sufficiency of its authentication of the
Floating Rate Certificates;
(i) the right of the Grantor Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Grantor Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act; and
(j) the Grantor Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Estate created hereby or the
powers granted hereunder.
Section 10.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF CERTIFICATES.
The recitals and representations contained herein and in the Floating Rate
Certificates, except any such recitals and representations relating to the
Grantor Trustee, shall be taken as the statements of the Depositor and the
Grantor Trustee assumes no responsibility for their correctness.
Section 10.04 MAY OWN CERTIFICATES.
The Grantor Trustee, in its individual or any other capacity, may become
the owner or pledgee of Certificates and may transact business with the other
parties with the same rights it would have if it were not Grantor Trustee.
Section 10.05 MONEY HELD IN TRUST.
Money held by the Grantor Trustee in trust hereunder shall be kept in a
separate and segregated trust account in accordance with Section 7.02 hereof.
Section 10.06 CORPORATE GRANTOR TRUSTEE REQUIRED; ELIGIBILITY.
The Grantor Trustee hereunder shall at all times be a corporation or
association having its principal office in a state and city acceptable to the
Depositor and organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers, having ratings on its long-term debt obligations at the time of such
appointment in at least the third highest rating category by both Moody's and
DCR or such lower ratings as will not cause Moody's or DCR to lower their
then-current ratings of the
35
Certificates, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 10.06 the combined capital and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Grantor Trustee shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Grantor Trustee shall
resign immediately in the manner and with the effect specified in Section 10.07
hereof.
Section 10.07 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Grantor Trustee and no
appointment of a successor Grantor Trustee pursuant to this Article X shall
become effective until the acceptance of appointment by the successor Grantor
Trustee under Section 10.08 hereof.
(b) The Grantor Trustee, or any Grantor Trustee or Grantor Trustees
hereafter appointed, may resign at any time by giving written notice of
resignation to the Depositor, the Servicer and by mailing notice of resignation
by first-class mail, postage prepaid, to the Holders at their addresses
appearing on the Register; provided, that the Grantor Trustee shall have also
resigned as Trustee pursuant to the Pooling and Servicing Agreement. A copy of
such notice shall be sent by the resigning Grantor Trustee to the Rating
Agencies. Upon receiving notice of resignation, the Depositor shall promptly
appoint a successor Grantor Trustee or Grantor Trustees; provided that any
successor Grantor Trustee so appointed shall be the Trustee under the Pooling
and Servicing Agreement. If no successor Grantor Trustee shall have been
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Grantor Trustee may petition any court of
competent jurisdiction for the appointment of a successor Grantor Trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
appropriate, appoint a successor Grantor Trustee
(c) If at any time the Grantor Trustee shall cease to be eligible in
accordance with the provisions of Section 10.06 hereof and shall fail to resign
after written request thereto by the Depositor, or if at any time the Grantor
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Grantor Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Grantor
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation or if the Grantor Trustee breaches any of its
obligations or representations hereunder, then the Depositor may remove the
Grantor Trustee and appoint a successor Grantor Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Grantor
Trustee and one copy to the successor Grantor Trustee ; provided that any
successor Grantor Trustee so appointed shall be the Trustee under the Pooling
and Servicing Agreement.
(d) The Depositor shall give notice of any removal of the Grantor
Trustee by mailing notice of such event by first-class mail, postage prepaid, to
the Rating Agencies and to
36
the Holders as their names and addresses appear in the Register. Each notice
shall include the name of the successor Grantor Trustee and the address of its
corporate trust office.
Section 10.08 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR GRANTOR TRUSTEE.
Every successor Grantor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Depositor on behalf of the Trust and to its
predecessor Grantor Trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor Grantor Trustee
shall become effective and such successor Grantor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts, duties and obligations of its predecessor hereunder. The Depositor and
the predecessor Grantor Trustee shall execute and deliver any and all
instruments for more fully and certainly vesting in and confirming to such
successor Grantor Trustee all such rights, powers and trusts.
Upon acceptance of appointment by a successor Grantor Trustee as provided
in this Section, the Depositor shall mail notice thereof by first-class mail,
postage prepaid, to the Holders at their last addresses appearing upon the
Register and to Washington Mutual. The Depositor shall send a copy of such
notice to the Rating Agencies. If the Depositor fails to mail such notice within
ten days after acceptance of appointment by the successor Grantor Trustee, the
successor Grantor Trustee shall cause such notice to be mailed at the expense of
the Depositor.
No successor Grantor Trustee shall accept its appointment unless at the
time of such acceptance such successor shall be qualified and eligible under
this Article X.
Section 10.09 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
OF THE GRANTOR TRUSTEE.
Any Person into which the Grantor Trustee may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Grantor Trustee shall be a party, or
any Person succeeding to all or substantially all of the corporate trust
business of the Grantor Trustee, shall be the successor of the Grantor Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, that such corporation
or association shall be otherwise qualified and eligible under this Article X.
Section 10.10 LIABILITY OF THE GRANTOR TRUSTEE.
The Grantor Trustee shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Grantor Trustee herein. Neither the Grantor Trustee nor any of the directors,
officers, employees or agents of the Grantor Trustee shall be under any
liability on any Floating Rate Certificate or otherwise to the Depositor, the
Servicer or any Holder 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
37
provision shall not protect the Grantor Trustee, its directors, officers,
employees or agents or any such Person against any liability which would
otherwise be imposed by reason of negligent action, negligent failure to act or
willful misconduct in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
Section 10.11 APPOINTMENT OF CO-GRANTOR TRUSTEE OR SEPARATE GRANTOR
TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Estate or Property may at the time be located, the Grantor
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Grantor Trustee to act as co-Grantor
Trustee or co-Grantor Trustees, jointly with the Grantor Trustee, of all or any
part of the Trust Estate or separate Grantor Trustee or separate Grantor
Trustees of any part of the Trust Estate, and to vest in such Person or Persons,
in such capacity and for the benefit of the Holders, such title to the Trust
Estate, or any part thereof, and, subject to the other provisions of this
Section 10.11, such powers, duties, obligations, rights and trusts as the
Grantor Trustee may consider necessary or desirable. No co-Grantor Trustee or
separate Grantor Trustee hereunder shall be required to meet the terms of
eligibility as a successor Grantor Trustee under Section 10.06 and no notice to
Holders of the appointment of any co-Grantor Trustee or separate Grantor Trustee
shall be required under Section 10.07.
Every separate Grantor Trustee and co-Grantor Trustee shall, to the extent
permitted, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Grantor Trustee shall be conferred or imposed upon and
exercised or performed by the Grantor Trustee and such separate Grantor Trustee
or co-Grantor Trustee jointly (it being understood that such separate Grantor
Trustee or co-Grantor Trustee is not authorized to act separately without the
Grantor Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed, the
Grantor 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 Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate Grantor
Trustee or co- Grantor Trustee, but solely at the direction of the Grantor
Trustee; and
(ii) No co-Grantor Trustee hereunder shall be held personally
liable by reason of any act or omission of any other co-Grantor Trustee
hereunder.
Any notice, request or other writing given to the Grantor Trustee shall be
deemed to have been given to each of the then separate Grantor Trustees and
co-Grantor Trustees, as effectively as if given to each of them. Every
instrument appointing any separate Grantor Trustee or co-Grantor Trustee shall
refer to this Agreement and the conditions of this Section 10.11. Each separate
Grantor Trustee and co-Grantor Trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either
38
jointly with the Grantor 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 Grantor Trustee. Every such instrument shall
be filed with the Grantor Trustee and a copy thereof given to Washington Mutual.
Any separate Grantor Trustee or co-Grantor Trustee may, at any time,
constitute the Grantor 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
Grantor Trustee or co- Grantor 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 Grantor Trustee, to the extent
permitted by law, without the appointment of a new or successor Grantor Trustee.
39
ARTICLE XI
MISCELLANEOUS
Section 11.01 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Depositor or the Holders to the
Grantor Trustee to take any action under any provision of this Agreement, the
Depositor or the Holders, as the case may be, shall furnish to the Grantor
Trustee a certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate need be furnished.
Except as otherwise specifically provided herein, each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Agreement (including one furnished pursuant to specific requirements of
this Agreement relating to a particular application or request) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; and
(c) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 11.02 FORM OF DOCUMENTS DELIVERED TO THE GRANTOR TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Grantor Trustee
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such Authorized Officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of an Authorized Officer of the Grantor Trustee or any opinion of counsel may be
based, insofar as it relates to
40
factual matters upon a certificate or opinion of, or representations by, one or
more Authorized Officers of the Depositor, stating that the information with
respect to such factual matters is in the possession of the Depositor, unless
such Authorized Officer or counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous. Any opinion of counsel may also be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Authorized Officer of the Grantor Trustee, stating that
the information with respect to such matters is in the possession of the Grantor
Trustee, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous. Any opinion of counsel may be based on the written
opinion of other counsel, in which event such opinion of counsel shall be
accompanied by a copy of such other counsel's opinion and shall include a
statement to the effect that such counsel believes that such counsel and the
Grantor Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 11.03 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Grantor Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Grantor Trustee
and the Trust, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The ownership of Certificates shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind the Holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything
41
done, omitted or suffered to be done by the Grantor Trustee or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Certificates.
Section 11.04 NOTICES, ETC. TO GRANTOR TRUSTEE.
Any request, demand, authorization, direction, notice, consent, waiver or
act of the Holders or other documents provided or permitted by this Agreement to
be made upon, given or furnished to, or filed with the Grantor Trustee by any
Holder or the Depositor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with and received by the Grantor
Trustee at the Corporate Trust Office.
Section 11.05 NOTICES AND REPORTS TO HOLDERS; WAIVER OF NOTICES.
Where this Agreement provides for notice to Holders of any event or the
mailing of any report to Holders, such notice or report shall be sufficiently
given (unless otherwise herein expressly provided) if mailed, first-class
postage prepaid, to each Holder affected by such event or to whom such report is
required to be mailed, at the address of such Holder as it appears on the
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice or the mailing of such report. In
any case where a notice or report to Holders is mailed in the manner provided
above, neither the failure to mail such notice or report nor any defect in any
notice or report so mailed to any particular Holder shall affect the sufficiency
of such notice or report with respect to other Holders, and any notice or report
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given or provided.
Where this Agreement provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Grantor Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Agreement, then any manner of giving such notice as
shall be satisfactory to the Grantor Trustee shall be deemed to be a sufficient
giving of such notice.
Where this Agreement provides for notice to any Rating Agency that rated
any Floating Rate Certificates, failure to give such notice shall not affect any
other rights or obligations created hereunder.
Section 11.06 RULES BY GRANTOR TRUSTEE.
The Grantor Trustee may make reasonable rules for any meeting of Holders.
Section 11.07 SUCCESSORS AND ASSIGNS.
42
All covenants and agreements in this Agreement by any party hereto shall
bind its successors and assigns, whether so expressed or not.
Section 11.08 SEVERABILITY.
In case any provision in this Agreement or in the Floating Rate
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 11.09 BENEFITS OF AGREEMENT.
Nothing in this Agreement or in the Floating Rate Certificates, expressed
or implied, shall give to any Person, other than the Holders and the parties
hereto and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
Section 11.10 LEGAL HOLIDAYS.
In any case where the date of any Distribution Date, any other date on
which any distribution to any Holder is proposed to be paid, or any date on
which a notice is required to be sent to any Person pursuant to the terms of
this Agreement shall not be a Business Day, then (notwithstanding any other
provision of the Floating Rate Certificates or this Agreement) payment or
mailing need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made or mailed on the nominal
date of any such Distribution Date, or such other date for the payment of any
distribution to any Holder or the mailing of such notice, as the case may be,
and no interest shall accrue for the period from and after any such nominal
date, provided such payment is made in full on such next succeeding Business
Day.
Section 11.11 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.12 COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 11.13 USURY.
43
The amount of interest payable or paid on any Certificate under the terms
of this Agreement shall be limited to an amount which shall not exceed the
maximum nonusurious rate of interest allowed by the applicable laws of the State
of New York or any applicable law of the United States permitting a higher
maximum nonusurious rate that preempts such applicable New York laws, which
could lawfully be contracted for, charged or received (the "Highest Lawful
Rate"). In the event any payment of interest on any Certificate exceeds the
Highest Lawful Rate, the Trust stipulates that such excess amount will be deemed
to have been paid to the Holder of such Certificate as a result of an error on
the part of the Grantor Trustee acting on behalf of the Trust and the Holder
receiving such excess payment shall promptly, upon discovery of such error or
upon notice thereof from the Grantor Trustee on behalf of the Trust, refund the
amount of such excess or, at the option of such Holder, apply the excess to the
payment of principal of such Certificate, if any, remaining unpaid. In addition,
all sums paid or agreed to be paid to the Grantor Trustee for the benefit of
Holders of Certificates for the use, forbearance or detention of money shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full term of such Certificates.
Section 11.14 AMENDMENT.
(a) The Grantor Trustee and the Depositor may, at any time and from
time to time, and without the consent of the Holders, amend this Agreement for
the purpose of (i) curing any ambiguity, correcting or supplementing any
provision hereof which may be inconsistent with any other provision hereof, or
adding provisions hereto which are not inconsistent with the provisions hereof;
and (ii) complying with the requirements of the Code and the regulations
proposed or promulgated thereunder. The Depositor and the Grantor Trustee, with
the consent of the Holders of Floating Rate Certificates aggregating not less
than 66-2/3% of the Percentage Interests of the affected Class of Certificates,
may amend this Agreement in any other respect; provided, however, that no such
amendment may (i) change in any manner the amount of, change the timing of, or
change the manner in which payments are required to be distributed in respect of
any Floating Rate Certificate without the consent of the Holder of such Floating
Rate Certificate, (ii) reduce the aforesaid percentages of Percentage Interests,
the Holders of which are required to consent to any such amendment, without the
consent of 100% of the Holders of Certificates of the Class affected thereby, or
(iii) terminate the Agreement or the Trust created thereunder without the
consent of 100% of the Holders of all Classes of the Floating Rate Certificates;
and provided further that no such amendment shall effect a merger between the
Trust and any other Person, or otherwise extend the activities of the Trust
beyond the activities specified in Section 2.03. Any such consent by the Holder
of a Floating Rate Certificate shall be conclusive and binding on such Holder
and upon all future Holders of such Floating Rate Certificate and of any
Floating Rate Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof whether or not notation of such consent is made upon
the Certificate.
(b) Promptly after the execution of any such amendment, the Grantor
Trustee shall furnish written notification of the substance of such amendment to
each Holder in the manner set forth in Section 11.05, and to the Rating
Agencies.
44
(c) The Rating Agencies shall be provided with copies of any
amendments to this Agreement, together with copies of any opinions or other
documents or instruments executed in connection therewith.
(d) Prior to the execution of any amendment to this Agreement or any
Swap Agreement, the Grantor Trustee shall be furnished with an Opinion of
Counsel to the effect that (i) any such amendment is authorized or permitted
hereunder and (ii) such amendment would not, in and of itself, cause any federal
income tax to be imposed on the Trust.
Section 11.15 ADDITIONAL LIMITATION ON ACTION AND IMPOSITION OF TAX.
Any provision of this Agreement to the contrary notwithstanding, the
Grantor Trustee shall not, without having obtained an opinion of counsel
experienced in federal income tax matters to the effect that such transaction
does not result in a tax imposed on the Trust (i) sell any assets in the Trust
Estate, (ii) accept any contribution of assets after the Startup Day or (iii)
agree to any amendment or modification of this Agreement.
Section 11.16 NOTICES.
All notices hereunder shall be given as follows, until any superseding
instructions are given to all other Persons listed below:
The Grantor Trustee: Bank One, National Association
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Global Corporate Trust Services
The Depositor: Credit Suisse First Boston Mortgage
Securities Corp.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Washington Mutual: Washington Mutual Bank, FA
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Moody's: ▇▇▇▇▇'▇ Investors Service
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage-Backed Securities
Surveillance Department
Holders: As set forth in the Register.
45
IN WITNESS WHEREOF, the Depositor, Washington Mutual and the Grantor
Trustee have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:_____________________________________
Name:
Title:
WASHINGTON MUTUAL BANK, FA
By:_____________________________________
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
as Grantor Trustee
By:_____________________________________
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
): ss.:
COUNTY OF NEW YORK )
On the ________ day of December 1999, before me personally came
________________, to me known who, being by me duly sworn, did depose and say
that he/she is a/an __________________ Credit Suisse First Boston Securities
Corp., a Delaware Corporation; and that he/she signed his/her name thereto by
order of the respective Boards of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
47
STATE OF WASHINGTON )
): ss.:
COUNTY OF )
On the ________ day of December, 1999, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he/she is a _________________ of Washington Mutual Bank, FA, a
___________________; and that he/she signed his name thereto by order of the
respective Boards of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
48
STATE OF ILLINOIS )
): ss.:
COUNTY OF ▇▇▇▇ )
On the ________ day of December, 1999, before me personally came
_________________, to me known, who, being by me duly sworn did depose and say
that he/she is an _______________ of Bank One, National Association, the banking
association described in and that executed the above instrument as Grantor
Trustee; and that he signed his name thereto by order of the Board of Directors
of said New York banking corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
NOTARIAL SEAL
49
EXHIBIT A
FORM OF FLOATING RATE CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., CREDIT SUISSE FINANCIAL PRODUCTS,
WASHINGTON MUTUAL BANK, FA OR THE GRANTOR TRUSTEE REFERRED TO BELOW, OR OF ANY
OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENT AGENCY OR INSTRUMENTALITY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE 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.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT OR OTHER PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE UNLESS THE TRANSFEREE PROVIDES EITHER A
CERTIFICATION PURSUANT TO SECTION 5.04(d) OF THE AGREEMENT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE DEPOSITOR AND THE GRANTOR TRUSTEE THAT THE PURCHASE
OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN IS PERMISSIBLE UNDER APPLICABLE
LAW AND WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE.
NOTWITHSTANDING THE ABOVE, WITH RESPECT TO THE TRANSFER OF THIS CERTIFICATE TO A
DEPOSITORY OR ANY SUBSEQUENT TRANSFER OF ANY INTEREST IN THIS CERTIFICATE FOR SO
LONG AS THIS CERTIFICATE IS HELD BY A DEPOSITORY, (I) NEITHER AN OPINION OF
COUNSEL NOR A CERTIFICATION, EACH AS DESCRIBED IN THE FOREGOING PARAGRAPH, SHALL
BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS SHALL APPLY:
1. ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE
REPRESENTED BY VIRTUE OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR
INTEREST HEREIN) THAT EITHER (A) SUCH TRANSFEREE IS NOT A PLAN INVESTOR OR
(B) SUCH PURCHASE AND HOLDING IS EXEMPT UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") ▇▇-▇▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ 91-38, PTCE 90-1 OR PTCE 84-14;
AND
A-1
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD
IN VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST
PRECEDING TRANSFEREE THAT EITHER (I) IS NOT A PLAN INVESTOR OR (II) WHOSE
HOLDING IS EXEMPT PURSUANT TO ONE OF THE FOREGOING EXEMPTIONS SHALL BE
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS
CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF THIS
CERTIFICATE. THE GRANTOR TRUSTEE SHALL BE UNDER NO LIABILITY TO ANY PERSON
FOR MAKING ANY PAYMENTS DUE ON THIS CERTIFICATE TO SUCH PRECEDING
TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS IN SECTION
5.04(D) OF THE AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR,
WASHINGTON MUTUAL BANK, FA AND THE GRANTOR TRUSTEE FROM AND AGAINST ANY AND ALL
LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF
SUCH ACQUISITION OR HOLDING.
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WASHINGTON MUTUAL BANK, FA. SERIES 1999-WM1 GRANTOR TRUST
CLASS [4 A-2][5 A-3][6 A-3] FLOATING RATE CERTIFICATE
Evidencing an undivided interest in a Trust whose assets consist of three
mortgage pass-through certificates, three interest rate swap agreements and
other related property transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP ______________ $_________________ INITIAL AGGREGATE CLASS
[4 A-2][5 A-3][6 A-3]
CERTIFICATE PRINCIPAL
BALANCE
Certificate No._______ $_________________ INITIAL CERTIFICATE
PRINCIPAL BALANCE OF THIS
CERTIFICATE
First Distribution Date: Scheduled Final
December 23, 1999 Distribution Date:
October 23, 2039
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
beneficial interest in the Trust referred to below consisting of three mortgage
pass-through certificates backed by a pool of adjustable-rate conventional
mortgage loans secured by first liens on one- to four-family residential real
properties (the "Mortgage Loans") and certain other property, three interest
rate swap agreements, and other related property, held in trust and transferred
to the Trust by Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). The Trust was created pursuant to the Grantor Trust Agreement,
dated as of November 1, 1999 (the "Agreement"), between the Depositor,
Washington Mutual Bank, FA and Bank One, National Association, as grantor
trustee (the "Grantor Trustee", which term includes any successor entity under
the Agreement), a summary of certain of the pertinent provisions of which is set
forth herein. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the Agreement for a statement of the
respective rights thereunder of the Depositor and the Grantor Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in (i) the
Washington Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series
1999-WM1, Class [4 A-2][5 A-3][6 A-3], (ii) the interest rate swap agreement,
between Credit Suisse Financial Products and the Grantor Trustee relating to
payments in such certificates, and (iii) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or other liquid
property. Pursuant to the Agreement, the Grantor Trustee will also issue the
Class [4 A-2][5 A-3][6 A-3] Floating Rate Certificates and the Class [4 A-2][5
A-3][6 A-3] Floating Rate Certificates, each of which will represent rights in
and to a separate class of mortgage pass-through certificates and a separate
swap agreement.
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This Certificate represents a Percentage Interest equal to the
Initial Certificate Principal Balance of this Certificate divided by the Initial
Certificate Principal Balance of the Class [4 A-2][5 A-3][6 A-3] Certificates,
both as set forth above.
The Grantor Trustee shall distribute from the Grantor Trust Account,
to the extent of available funds, on the 23rd day of each month, or if such 23rd
day is not a Business Day, on the next succeeding Business Day (each, a
"Distribution Date"), to the Person in whose name this Certificate is registered
at the close of business on the last Business Day of the month immediately
preceding the month of such distribution (each, a "Record Date"), an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount of interest and principal, if any, required to be distributed to
the Class [4 A-2][5 A-3][6 A-3] Floating Rate Certificates on such Distribution
Date.
Not later than each Distribution Date, the Grantor Trustee will send
to each Certificateholder a statement containing information relating to the
payments made to Certificateholders.
Distributions on this Certificate will be made by the Grantor
Trustee by check mailed to the address of the Holder hereof entitled thereto at
the address appearing in the Certificate Register or, if such Holder holds one
or more of this Class of Certificates with an aggregate initial Certificate
Principal Balance of at least $2,500,000 or all of the Certificates of this
Class, by wire transfer in immediately available funds to the account of such
Certificateholder designated in writing to the Grantor Trustee at least five
Business Days prior to the applicable Record Date. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice of the
pendency of such final distribution and only upon presentation and surrender of
this Certificate at the office or agency designated in such notice.
The Agreement permits, with certain exceptions, the amendment
thereof and the modification of the rights and obligations of the Depositor and
the Grantor Trustee and the rights of the Certificateholders under the Agreement
at any time by the Depositor and the Grantor Trustee with the consent of the
Holders of Certificates aggregating not less than 66-2/3% of the Percentage
Interests of the affected Class of Certificates; provided, however, that no such
amendment may (i) change in any manner the amount of, change the timing of, or
change the manner in which payments are required to be distributed in respect of
any Certificate without the consent of the Holder of such Certificate, (ii)
reduce the aforesaid percentages of Percentage Interests, the Holders of which
are required to consent to any such amendment, without the consent of 100% of
the Holders of Certificates of the Class affected thereby, or (iii) terminate
the Agreement or the Trust created thereunder without the consent of 100% of the
Holders of all Classes of the Certificates. 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 herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
Depositor and the Grantor Trustee to amend certain terms and conditions set
forth in the Agreement without the consent of Holders of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable on the
Certificate Register upon surrender of this
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Certificate for registration of transfer at the office or agency of the Grantor
Trustee designated therefor, duly endorsed by, or accompanied by a written
instrument of transfer in a form satisfactory to the Grantor Trustee duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class and of
authorized denominations, and for the same aggregate interest in the Trust will
be issued to the designated transferee or transferees.
The Class [4 A-2][5 A-3][6 A-3] Floating Rate Certificates will be
issued in fully registered form in minimum denominations of $25,000 Certificate
Principal Balance and in integral multiples of $1 in excess of such amount. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates of the same
Class and of authorized denominations evidencing a like aggregate Certificate
Principal Balance, as requested by the Holder surrendering the same.
No service charge will be made for such registrations of transfers
or exchanges, but the Grantor Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. The
Grantor Trustee and any agent of the Grantor Trustee may treat the person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Grantor Trustee nor any such agent thereof shall be affected by
notice to the contrary.
The obligations and responsibilities of the Depositor and the
Grantor Trustee created by the Agreement will terminate upon the earlier of (a)
the distribution of all amounts payable on all Classes of the Certificates or
(b) upon the consent of 100% of the Certificates .
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning. If the terms hereof are inconsistent with the
Agreement, the Agreement shall control.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Grantor Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid or obligatory for
any purpose.
The recitals contained herein shall be taken as statements of the
Depositor and not of the Grantor Trustee. The Grantor Trustee assumes no
responsibility for the correctness of the statements contained in this
Certificate and makes no representation as to the validity or sufficiency of the
Agreement, this Certificate, or any related document.
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IN WITNESS WHEREOF, the Grantor Trustee has caused this Certificate
to be duly executed under its corporate seal.
BANK ONE, NATIONAL ASSOCIATION
solely as Grantor Trustee and not
individually
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date:__________________________
BANK ONE, NATIONAL ASSOCIATION,
as Grantor Trustee
By:________________________________
Authorized Officer
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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, or
assignee) the undivided interest in the Trust Fund evidenced by the within
Certificate and hereby authorize(s) the transfer of registration of such
interest to the assignee on the Certificate Register.
I (we) further direct the Grantor Trustee to issue a new Certificate of
the same Class and of a like Initial Certificate Principal Balance and undivided
interest in the Trust Fund to the above-named assignee and to deliver such
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:_____________________
___________________________________ ________________________________________
Social Security or Signature by or on behalf of assignor
other Tax Identification (signature must be signed as registered)
No. of Assignee
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for the information of the
Servicer:
Distribution shall be made by check mailed to___________________________________
__________________________________________________________________________, or
if the aggregate Initial Certificate Principal Balance of Certificates of this
Class held by the Holder is at least $2,500,000 or the Percentage Interest
within such Class is 100%, and the Grantor Trustee shall have received
appropriate wiring instructions in accordance with the Agreement, by wire
transfer in immediately available funds to___________________the account of ,
account number______________________. This information is provided by the
assignee named above, or its agent.
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