EXHIBIT 1
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
WASHINGTON MUTUAL BANK, FA,
Seller and Servicer,
WASHINGTON MUTUAL BANK fsb
Seller,
WASHINGTON MUTUAL BANK,
Seller
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2000
relating to
MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2000-WM2
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ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF TRUST FUND; REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund.....................................25
SECTION 2.02 Acceptance by Trustee........................................27
SECTION 2.03 Representations, Warranties and Covenants of the
Sellers......................................................28
SECTION 2.04 Representations, Warranties and Covenants of the Sellers
with respect to the Mortgage Loans...........................30
SECTION 2.05 Issuance of Certificates.....................................39
SECTION 2.06 REMIC Provisions.............................................39
SECTION 2.07 Representations and Warranties of the Servicer...............43
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01 Servicing Standard...........................................45
SECTION 3.02 Sub-Servicing Agreements between Servicer and
Sub-Servicers; Enforcement of the Obligations of
Sub-Servicers................................................46
SECTION 3.03 Termination of the Rights of Sub-Servicers...................47
SECTION 3.04 Liability of the Servicer....................................47
SECTION 3.05 Rights of the Depositor, the Sellers and the Trustee in
Respect of the Servicer......................................48
SECTION 3.06 Trustee to Act as Servicer...................................48
SECTION 3.07 Collection of Mortgage Loan Payments.........................48
SECTION 3.08 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.....................................................50
SECTION 3.09 Permitted Withdrawals from the Custodial Account.............52
SECTION 3.10 Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder.......................................53
SECTION 3.11 Maintenance of Hazard Insurance and Errors and Omissions
andFidelity Coverage.........................................54
SECTION 3.12 Enforcement of Due-On-Sale Clauses; Assumption Agreements....56
SECTION 3.13 Realization Upon Defaulted Mortgage Loans....................57
SECTION 3.14 Trustee to Cooperate; Release of Trustee Mortgage Files......60
SECTION 3.15 Documents, Records and Funds in Possession of Servicer
to be Held for the Depositor and the Trustee for the
Benefit of the Certificateholders............................61
SECTION 3.16 Servicing Compensation.......................................62
SECTION 3.17 Reports to the Depositor; Account Statements.................62
SECTION 3.18 Annual Statement as to Compliance............................62
SECTION 3.19 Annual Independent Public Accountants' Servicing Report......63
SECTION 3.20 Reports to Trustee...........................................63
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Certificate Account..........................................64
SECTION 4.02 Distributions................................................64
SECTION 4.03 Allocation of Realized Losses................................68
SECTION 4.04 Monthly Statements to Certificateholders.....................69
ARTICLE V
ADVANCES
SECTION 5.01 Monthly Advances by the Servicer.............................71
SECTION 5.02 Monthly Advances for Attorneys' Fees.........................71
SECTION 5.03 Nonrecoverable Advances......................................72
SECTION 5.04 Advance Procedures...........................................72
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.............................................73
SECTION 6.02 Registration of Transfer and Exchange of Certificates........73
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............78
SECTION 6.04 Persons Deemed Owners........................................79
SECTION 6.05 Access to List of Certificateholders' Names and Addresses....79
SECTION 6.06 Maintenance of Office or Agency..............................79
SECTION 6.07 Book-Entry Certificates......................................79
SECTION 6.08 Notices to Clearing Agency...................................80
SECTION 6.09 Definitive Certificates......................................80
ARTICLE VII
THE DEPOSITOR, THE SELLERS AND THE SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor and the Servicer...82
SECTION 7.02 Merger or Consolidation of the Depositor, the Sellers, or
the Servicer.................................................82
SECTION 7.03 Limitation on Liability of the Depositor, the Sellers, the
Servicer and Others..........................................83
SECTION 7.04 Servicer Not to Resign.......................................83
SECTION 7.05 Sellers and Servicer May Own Certificates....................83
SECTION 7.06 Obligations of the Sellers...................................84
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default............................................85
SECTION 8.02 Trustee to Act; Appointment of Successor.....................86
SECTION 8.03 Notification to Certificateholders...........................87
SECTION 8.04 Waiver of Events of Default..................................88
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee............................................89
SECTION 9.02 Certain Matters Affecting the Trustee........................90
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans........92
SECTION 9.04 Trustee May Own Certificates.................................92
SECTION 9.05 Trustee's Fees and Expenses..................................92
SECTION 9.06 Eligibility Requirements for Trustee.........................93
SECTION 9.07 Resignation and Removal of Trustee...........................93
SECTION 9.08 Successor Trustee............................................94
SECTION 9.09 Merger or Consolidation of Trustee...........................94
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee................94
SECTION 9.11 Office of the Trustee........................................96
SECTION 9.12 Tax Returns..................................................96
SECTION 9.13 Monthly Reports..............................................96
ARTICLE X
TERMINATION
SECTION 10.01 Termination upon Liquidation or Repurchase of all Mortgage
Loans........................................................97
SECTION 10.02 Procedure Upon Optional Termination..........................97
SECTION 10.03 Additional Termination Requirements..........................98
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment...................................................100
SECTION 11.02 Recordation of Agreement; Counterparts......................101
SECTION 11.03 Governing Law...............................................101
SECTION 11.04 Intention of Parties........................................101
SECTION 11.05 Notices.....................................................103
SECTION 11.06 Severability of Provisions..................................103
SECTION 11.07 Limitation on Rights of Certificateholders..................103
SECTION 11.08 Certificates Nonassessable and Fully Paid...................104
EXHIBITS
Exhibit A: Form of Class A Certificate A-1
Exhibit B: Form of Class M-1 Certificate B-1
Exhibit C: Form of Class B (Public) Certificate C-1
Exhibit D: Form of Class B (Private) Certificate D-1
Exhibit E: Form of Class S Certificate E-1
Exhibit F: Form of Class P Certificate F-1
Exhibit G: Form of Class R Certificate G-1
Exhibit H: Schedule of Mortgage Loans H-1
Exhibit I: Form of Initial Certification of Trustee I-1
Exhibit J: Form of Final Certification of Trustee J-1
Exhibit K: Form of Request for Release K-1
Exhibit L: Form of Investor Representation Letter L-1
Exhibit M: Form of Transferor Representation Letter M-1
Exhibit N: Form of Investor Transfer Affidavit and Agreement N-1
Exhibit O: Form of Transfer Certificate O-1
Exhibit P: WMBFA Mortgage Loans P-1
Exhibit Q: WMBFSB Mortgage Loans Q-1
Exhibit R: WMB Mortgage Loans R-1
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2000, is
hereby executed by and between CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware corporation, as depositor (the "Depositor"), WASHINGTON
MUTUAL BANK, FA, a federally chartered savings association, as servicer (in
such capacity, the "Servicer") and as a seller (in such capacity, a "Seller"
or "WMBFA"), WASHINGTON MUTUAL BANK fsb (in such capacity, a "Seller" or
"WMBFSB"), and WASHINGTON MUTUAL BANK (in such capacity, a "Seller" or "WMB"
and together with WMBFA and WMBFSA, the "Sellers") and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee").
Capitalized terms used in this Agreement and not otherwise defined will have
the meanings assigned to them in Article I below.
PRELIMINARY STATEMENT
The Depositor is the owner of the assets constituting the Trust Fund
that are hereby conveyed to the Trustee in return for the Certificates. The
Trust Fund for federal income tax purposes will consist of a single REMIC. The
Certificates will represent the entire beneficial ownership interest in the
Trust Fund. The Regular Certificates will represent the "regular interests" in
the Trust Fund and the Residual Certificates will represent the single
"residual interest" in the Trust Fund. All interests created hereby will be
retired on or before the Scheduled Final Distribution Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which such Classes shall be issuable (except that one Certificate
of each Class of Certificates may be issued in a different amount and, in
addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
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Integral
Pass- Multiples
Class Initial Certificate Through Minimum in Excess of
Designation Principal Balance Rate Denomination Minimum
___________ _________________ __________ ____________ ____________
Class A $149,026,000 7.75% $25,000.00 $1
Class M-1 $2,338,000 7.75% $25,000.00 $1
Class M-2 $1,637,000 7.75% $25,000.00 $1
Class M-3 $779,000 7.75% $25,000.00 $1
Class B-1 $546,000 7.75% $100,000.00 $1
Class B-2 $467,000 7.75% $100,000.00 $1
Class B-3 $468,549.61 7.75% $100,000.00 $1
Class P $626,559 (1) $25,000.00 $1
Class S (2) 7.75% 20% N/A
Class R $100 7.75% 20% N/A
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_____________
(1) The Class P Certificates will be Principal Only Certificates and will not
bear interest.
(2) The Class S Certificates will be Interest Only
Certificates. The Class S Certificates will have no principal balance
and will bear interest on its Class S Notional Amount. The initial
Class S Notional Amount of the Class S Certificates will be
$3,399,223.
(3) The Class S Certificates will accrue interest at a
Pass-Through Rate equal to the excess of the average of the Net
Mortgage Rates of the Premium Mortgage Loans, weighted on the basis
of their Stated Principal Balances, over 7.75% per annum.
Set forth below are designations of Classes or Components of
Certificates to the categories used herein:
Book-Entry Certificates.............................. All Classes of Certificates other than the Physical
Certificates.
ERISA-Restricted Certificates........................ Class R and Private Certificates.
Offered Certificates................................. All Classes of Certificates other than the Private
Certificates.
Private Certificates................................. Class B-1, Class B-2 and Class B-3 Certificates.
Physical Certificates................................ Class R and Private Certificates.
Rating Agencies...................................... S&P and Fitch.
Regular Certificates................................. All Classes of Certificates other than the Class R
Certificates.
Residual Certificates................................ Class R Certificates.
Senior Certificates.................................. Class A, Class P, Class S and Class R Certificates.
Subordinate Certificates............................. Class M-1, Class M-2, Class M-3, Class B-1, Class B-2
and Class B-3 Certificates.
Class A Certificates................................. The Class A-1 Certificates.
Class M Certificates................................. The Class M-1, Class M-2 and Class M-3 Certificates.
Class B Certificates................................. The Class B-1, Class B-2 and Class B-3 Certificates.
All covenants and agreements made by the Depositor herein are for the
benefit and security of the Certificateholders. The Depositor is entering into
this Agreement, and the Trustee is accepting the trusts created hereby and
thereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged. The principal balance of the Mortgage Loans as
of the Cut-off Date is $155,888,208.86.
The parties hereto intend to effect an absolute sale and assignment
of the Mortgage Loans to the Trustee for the benefit of Certificateholders
under the Assignment Agreement and this Agreement. However, the Depositor will
hereunder absolutely assign and, as a precautionary matter grant a security
interest, in and to its rights, if any, in the related Mortgage Loans to the
Trustee on behalf of Certificateholders to ensure that the interest of the
Certificateholders hereunder in the Mortgage Loans is fully protected.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Sellers and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Acceptable Servicing Procedures: The procedures, including
prudent collection and loan administration procedures, and the standard of
care employed by prudent mortgage servicers which service mortgage loans of
the same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located. Such standard of care shall not be lower
than that the Servicer customarily employs and exercises in servicing and
administering similar mortgage loans for its own account and shall be in full
compliance with all federal, state and local laws, ordinances, rules and
regulations.
Adverse REMIC Event: As defined in Section 2.06(f).
Agreement: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto.
Applicable Requirements: With respect to each Mortgage Loan, (i) the
terms of the Mortgage and Mortgage Note related to each Mortgage Loan, (ii)
the federal, state, local and foreign laws, statutes, rules, regulations,
ordinances, standards, requirements, administrative rulings, orders and
processes pertaining to Mortgage Loans, including but not limited to those
pertaining to the processing, origination and servicing of the Mortgage Loans,
(iii) the requirements of the Trustee on behalf of the Certificateholders as
set forth in this Agreement and (iv) the reasonable and customary mortgage
servicing practices of prudent mortgage lending institutions which service
mortgage loans of the same type as the Mortgage Loans in the jurisdictions in
which the related Mortgaged Properties are located.
Applicable Seller: With respect to the WMB Mortgage Loans, WMB. With
respect to the WMBFA Mortgage Loans, WMBFA. With respect to the WMBFSB
Mortgage Loans, WMBFSB.
Appraised Value: With respect to any Mortgage Loan, the lesser of
(i)the value set forth on the appraisal made in connection with the
origination of the related Mortgage Loan as the value of the related Mortgaged
Property or (ii)the purchase price paid for the Mortgaged Property, provided,
however, in the case of a refinanced Mortgage Loan, such value shall be based
solely on the appraisal made in connection with the origination of such
Mortgage Loan.
Assignment Agreement: The Assignment Agreement, dated as of November
1, 2000, between Credit Suisse First Boston Mortgage Capital LLC, as assignor,
and Credit Suisse First Boston Mortgage Securities Corp., as assignee.
Available Distribution Amount: With respect to any Distribution Date
the sum of: (i) all amounts in respect of Monthly Payments (net of the related
Expense Fees and the Retained Yield) due on the Due Date in the month in which
such Distribution Date occurs and received prior to the related Determination
Date, together with any Monthly Advances in respect thereof; (ii) all
Insurance Proceeds and all Liquidation Proceeds received during the related
Prepayment Period applicable to such Distribution Date; (iii) all Principal
Prepayments received during the Prepayment Period applicable to such
Distribution Date, excluding prepayment penalties and premiums; (iv) amounts
received with respect to such Distribution Date as the Substitution Adjustment
Amount or purchase price in respect of a Mortgage Loan repurchased by the
Applicable Seller or the Servicer as of such Distribution Date, in the case of
clauses (i) through (iv) above reduced by amounts in reimbursement for Monthly
Advances previously made and other amounts as to which the Servicer is
entitled to be reimbursed pursuant to Section 3.09; and (v) any amounts
payable as Compensating Interest by the Servicer on such Distribution Date.
Bankruptcy Code: The United States Bankruptcy Code, as amended from
time to time (11 U.S.C.).
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: A Deficient Valuation or Debt Service Reduction;
provided, however, that a Bankruptcy Loss shall not be deemed a Bankruptcy
Loss hereunder so long as the Servicer has notified the Trustee in writing
that the Servicer is diligently pursuing any remedies that may exist in
connection with the related Mortgage Loan and either (A) the related Mortgage
Loan is not in default with regard to payments due thereunder or (B)
delinquent payments of principal and interest under the related Mortgage Loan
and any related escrow payments in respect of such Mortgage Loan are being
advanced on a current basis by the Servicer, in either case without giving
effect to any Debt Service Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Loss
Coverage Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to the Certificates since the Cut-off Date and (ii) any permissible
reductions in the Bankruptcy Loss Coverage Amount as evidenced by a letter of
each Rating Agency to the Trustee to the effect that any such reduction will
not result in a downgrading, or otherwise adversely affect, of the then
current ratings assigned to the Classes of Certificates rated by it.
Beneficial Holder: A Person holding a beneficial interest in any
Certificate through a Participant or an Indirect Participant or a Person
holding a beneficial interest in any Definitive Certificate, as defined in
Section 6.07.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in New York or the state in which the
Servicer or the Corporate Trust Office are located are authorized or obligated
by law or executive order to be closed.
Certificate: Any Class A, Class M, Class B, Class P, Class S or Class
R Certificate executed and authenticated by the Trustee for the benefit of the
Certificateholders in substantially the form or forms attached as Exhibits
hereto.
Certificate Account: The separate account or accounts created and
maintained by the Trustee pursuant to Section 4.01, in the name of the Trustee
for the benefit of the Certificateholders for deposit of payments and
collections in respect of the Mortgage Loans pursuant to Section 4.01 hereof,
which account or accounts must be an Eligible Account or Accounts.
Certificate Principal Balance: On any date and with respect to the
Class A, Class M, Class B and Class P Certificates, the Initial Certificate
Principal Balance of such Class less the sum of (i) all amounts previously
distributed to Holders of such Class with respect to principal pursuant to
Section 4.02 and (ii) all amounts of Realized Losses previously allocated to
such Class pursuant to Section 4.03.
Certificate Register: The register maintained pursuant to Section
6.02(a) hereof.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register.
Class: Each of the Class A, Class M, Class B, Class P, Class S or
Class R Certificates, as appropriate.
Class A Certificates: As specified in the Preliminary Statement.
Class B Certificates: As specified in the Preliminary Statement.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of
Interest Distribution Amount for such Class, exceeds the amount of interest
actually distributed on such Class on such Distribution Date.
Class M Certificates: As specified in the Preliminary Statement.
Class Notional Amount: The Class S Notional Amount.
Class P Fraction: With respect to any Class P Mortgage Loan, a
fraction, the numerator of which is 7.75% minus the Net Mortgage Rate on such
Class P Mortgage Loan and the denominator of which is 7.75%.
Class P Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate of
less than 7.75%.
Class P Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the aggregate of, for all Class P
Mortgage Loans, the product for each such Class P Mortgage Loan of the
applicable Class P Fraction and the sum of (x) scheduled payments of principal
on such Class P Mortgage Loan due (whether or not received), including amounts
which have been advanced as part of an Monthly Advance with respect to such
Distribution Date, (y) the principal portion received in respect of such Class
P Mortgage Loan during the prior calendar month of (1) Curtailments, (2)
Insurance Proceeds, (3) the amount, if any, of repurchase proceeds received
with respect to any such Mortgage Loan which was repurchased as permitted or
required by this Agreement during the calendar month preceding the month of
the Distribution Date, (4) Liquidation Proceeds and (5) Principal Prepayments
in Full and (z) Realized Losses (subject to the provisions of Section
4.03(c)), other than Excess Losses and Extraordinary Losses.
Class S Notional Amount: As to any Distribution Date will equal the
product of (x) the aggregate Stated Principal Balance, as of the second
preceding Due Date after giving effect to scheduled payments for that Due
Date, whether or not received, or for the initial Distribution Date, as of the
Cut-off Date, of the Premium Rate Mortgage Loans and (y) a fraction, the
numerator of which is the weighted average of the Stripped Interest Rates for
the Premium Rate Mortgage Loans as of that Due Date and the denominator of
which is 7.75%.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest-bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Interest Distribution Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
which initially shall be DTC.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest Payment: For any Distribution Date, the lesser
of (i) the aggregate Servicing Fee payable to the Servicer for such
Distribution Date and (ii) the aggregate Prepayment Interest Shortfall for
such Distribution Date.
Condemnation Proceeds: All awards or settlements in respect of a
taking of all or part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation.
Corporate Trust Office: The designated office of the Trustee in the
State of Minnesota at which at any particular time its corporate trust
business shall be administered, which office at the date of the execution of
this Agreement is located at: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Structured
Finance, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Credit Support Depletion Date: The date on which the aggregate
Certificate Principal Balance of the Class M and Class B Certificates has been
reduced to zero.
Curtailment: Any payment of principal on a Mortgage Loan, made by or
on behalf of the related Mortgagor, other than a Monthly Payment, a prepaid
Monthly Payment or a Principal Prepayment in Full, which is applied to reduce
the outstanding Stated Principal Balance of the Mortgage Loan.
Custodial Account: The deposit account or accounts created and
maintained by the Servicer pursuant to Section 3.07 hereof, which account or
accounts must be Eligible Accounts.
Cut-off Date: November 1, 2000.
Debt Service Reduction: With respect to Mortgage Loan, a reduction by
a court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Monthly Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or any reduction that results in a permanent forgiveness of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding indebtedness under the Mortgage Loan, or that
results in a permanent forgiveness of principal, which valuation in either
case results from a proceeding under the Bankruptcy Code.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by
a Replacement Mortgage Loan.
Delivery Date: December 6, 2000.
Depositor: Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
Depository Agreement: The Letter of Representation dated as of
December 6, 2000 by and among DTC, the Depositor and the Trustee.
Determination Date: With respect to each Distribution Date, the
thirteenth (13th) day of each month (or if such day is not a Business Day, the
next Business Day), commencing in the month following the end of the calendar
month in which Cut-off Date occurs.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the ▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class R Certificate by such Person may cause the
REMIC or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class R Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
Distribution Date: The 21st day of any month, or if such 21st day is
not a Business Day, the Business Day immediately following such 21st day,
commencing in December 2000.
DTC: The Depository Trust Company.
Due Date: With respect to any Distribution Date, the first day of the
month in which the --------- related Distribution Date occurs.
Due Period: With respect to any Distribution Date, the period
beginning on the first day of the month preceding such Distribution Date and
ending on the last day of such month.
Eligible Account: Either (i) an account or accounts maintained with a
federal or state-chartered depository institution or trust company (which may
be the Servicer or an affiliate of the Servicer or which may be the Trustee or
an affiliate of the 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 S&P, provided that so
long as WMBFA is the Servicer, any account maintained with the Servicer shall
be an Eligible Account if the long-term unsecured debt obligations of WMBFA
are rated A- by S&P, (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 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 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. ss. 9.10(b) or (iv) any
account maintained at any Federal Home Loan Bank.
Eligible Investments: At any time, any one or more of the following
obligations, instruments and securities:
(i) direct obligations of, or obligations fully guaranteed as
to principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) repurchase obligations with respect to any security
described in clause (i)above, provided that the unsecured long-term
obligations of the party agreeing to repurchase such obligations are at the
time rated by S&P or Moody's in one of its two highest rating categories;
(iii) federal funds, certificates of deposit, time deposits, and
bankers' acceptances of any bank or trust company incorporated under the laws
of the United States or any state, provided that the long-term debt
obligations of such bank or trust company (or, in the case of the principal
bank in a bank holding company system, the long-term debt obligations of the
bank holding company) at the date of acquisition thereof have been rated by
S&P or Moody's in one of its two highest rating categories;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof which on the date of acquisition has
been rated by S&P or Moody's in its highest short-term rating category; and
(v) any other demand, money market, common trust fund or time deposit
or obligation, or interest-bearing or other security or investment rated in
the highest rating category by either Rating Agency.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: As defined in Section 3.08.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, if any, fire and hazard
insurance premiums, and other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to any Mortgage Loan.
Event of Default: As defined in Section 8.01 hereof.
Excess Loss: The amount of any (i) Fraud Loss on a Mortgage Loan
realized after the Fraud Loss Coverage Termination Date, (ii) Special Hazard
Loss on a Mortgage Loan realized after the Special Hazard Coverage Termination
Date or (iii) Bankruptcy Loss on a Mortgage Loan realized after the Bankruptcy
Coverage Termination Date.
Expense Fees: As to each Mortgage Loan, the sum of the related
Servicing Fee, the Trustee Fee and the Retained Yield.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Servicing Fee Rate, the Trustee Fee Rate and the Retained Yield Rate.
Extraordinary Events: Any of the following conditions with respect to
a Mortgaged Property or Mortgage Loan causing or resulting in a loss which
causes the liquidation of such Mortgage Loan: (a) losses that are of the type
that would be covered by the fidelity bond and the errors and omissions
insurance policy required to be maintained pursuant to Section 3.11
but are in excess of the coverage maintained thereunder; (b) nuclear reaction
or nuclear radiation or radioactive contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate or remote
or be in whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss"; (c) hostile or
warlike action in time of peace or war, including action in hindering,
combating or defending against an actual, impending or expected attack: (i) by
any government or sovereign power, de jure or de facto, or by any authority
maintaining or using military, naval or air forces; or (ii) by military, naval
or air forces; or (iii) by an agent of any such government, power, authority
or forces; (d) any weapon of war employing atomic fission or radioactive force
whether in time of peace or war; or (e) insurrection, rebellion, revolution,
civil war, usurped power or action taken by governmental authority in
hindering, combating or defending against such an occurrence, seizure or
destruction under quarantine or customs regulations, confiscation by order of
any government or public authority; or risks of contraband or illegal
transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by
or resulting from an Extraordinary Event.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01, which Final Distribution Date shall in no event be later than the end
of the 90-day liquidation period described in Section 10.03.
Fitch: Fitch, Inc., or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss Coverage Amount: As of the Delivery Date, $1,558,882,
subject in each case to reduction from time to time by the amount of Fraud
Losses allocated to the Certificates. On each anniversary of the Cut-off Date,
the Fraud Loss Coverage Amount will be reduced as follows: (a) prior to the
fifth anniversary of the Cut-off Date, the Fraud Loss Coverage Amount will be
reduced to an amount equal to the lesser of (i) on the first and second
anniversaries of the Cut-off Date, 1%, and on the third and fourth anniversary
of the Cut-off Date, 0.5%, of the aggregate Stated Principal Balance of the
Mortgage Loans and (ii) the excess of the Fraud Loss Coverage Amount as of the
preceding anniversary of the Cut-off Date (or, in the case of the first such
anniversary, as of the Cut-off Date) over the cumulative amount of Fraud
Losses on the Mortgage Loans allocated to the Certificates since such
preceding anniversary or the Cut-off Date, as the case may be, and (b) on the
fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
applicable Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Mortgage Loans as to which a
loss is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Mortgage
Insurance Policy because of such fraud, dishonesty or misrepresentation.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Indirect Participants: Entities, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly.
Initial Bankruptcy Loss Coverage Amount: $100,000.
Initial Certificate Principal Balance: As set forth in the
Preliminary Statement.
Insurance Proceeds: Proceeds of any Primary Mortgage
Insurance Policy, any title policy, any hazard insurance policy or any other
insurance policy covering a Mortgage Loan or the related Mortgaged Property,
to the extent such proceeds are not to be applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in accordance with
Acceptable Servicing Procedures.
Interest Accrual Period: With respect to each Distribution Date, the
calendar month prior to the month of such Distribution Date.
Interest Distribution Amount: With respect to any Distribution Date
and interest-bearing Class, the sum of (i) one month's interest accrued during
the related Interest Accrual Period at the applicable Pass-Through Rate for
such Class on the related Certificate Principal Balance or Class Notional
Amount, as applicable, subject to reduction pursuant to Section 4.02(d), and
(ii) any Class Unpaid Interest Amounts for such Class and Distribution Date.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments
or as Insurance Proceeds, Liquidation Proceeds, Condemnation Proceeds or
otherwise, which represent late payments or collections of Monthly Payments
due but delinquent for a previous Due Period and not previously recovered.
Liquidation Expenses: Customary and reasonable "out of pocket"
expenses incurred by the Servicer (or the related Sub-Servicer) in connection
with the liquidation of any defaulted Mortgage Loan and not recovered by the
Servicer (or the related Sub-Servicer) under a Primary Mortgage Insurance
Policy for reasons other than the Servicer's failure to comply with Section
3.10 hereof, such expenses including, without limitation, legal fees and
expenses, any unreimbursed amount expended by the Servicer pursuant to Section
3.11 hereof respecting the related Mortgage and any related and unreimbursed
expenditures for real estate property taxes or for property restoration or
preservation to the extent not previously reimbursed under any hazard
insurance policy for reasons other than the Servicer's failure to comply with
Section 3.11 hereof.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated
during the calendar month preceding the month of that Distribution Date and as
to which the Servicer has determined (in accordance with this Agreement) that
it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of the
related REO Property.
Liquidation Principal: As to any Distribution Date, the principal
portion of Liquidation Proceeds received with respect to each Mortgage Loan
which became a Liquidated Mortgage Loan (but not in excess of the principal
balance thereof) during the preceding calendar month (exclusive of the
applicable Class P Fraction thereof, in the case of a Class P Mortgage Loan).
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of the Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or in connection with the sale of the Mortgaged Property if the
Mortgaged Property is acquired in satisfaction of the Mortgage.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the Principal Balance of the related
Mortgage Loan at the date of determination and the denominator of which is the
Appraised Value of the Mortgaged Property or, in the case of a Replacement
Mortgage Loan, is the appraised value of the Mortgaged Property based upon an
appraisal made within 180 days prior to the date of substitution of such
Replacement Mortgage Loan for a Deleted Mortgage Loan.
Majority Class R Holder: A Class R Certificateholder with a
percentage interest in excess of 50%.
Monthly Advance: The aggregate of the advances made by or on behalf
of the Servicer with respect to any Distribution Date pursuant to Section 5.01
hereof, the amount of any such advances being equal to the Monthly Payments
that were due on the related Due Date and delinquent as of the close of
business on the related Determination Date, after adjustment of any delinquent
interest payment to be equal to interest at a rate equal to the Mortgage Rate
less the Servicing Fee Rate and the Retained Yield Rate on the Principal
Balance of the Mortgage Loans, less the aggregate amount of any such
delinquent payments that the Servicer has determined would constitute a
Nonrecoverable Advance if made.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan which is payable by a Mortgagor from time to time
under the related Mortgage Note.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
Mortgage: The mortgage, mortgage deed, deed of trust, or other
instrument creating a first lien on or first priority ownership interest in
real property securing a Mortgage Note including any riders, addenda,
assumption agreements, or modifications relating thereto.
Mortgage File: For each Mortgage Loan, the Trustee Mortgage File and
the Servicer Mortgage File.
Mortgage Loan: Each of the mortgage loans (exclusive of the Retained
Yield and the servicing rights) transferred and assigned to the Trustee
pursuant to the provisions hereof as from time to time are held as a part of
the Trust Fund, evidenced by a Mortgage Note and secured by a Mortgage, the
mortgage loans so held being identified in the Mortgage Loan Schedule, as
amended from time to time.
Mortgage Loan Repurchase Price: The price, calculated as set forth in
Section 10.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to an Optional Termination of the Trust Fund.
Mortgage Loan Schedule: The list of Mortgage Loans transferred to the
Trustee as part of the Trust Fund for the Certificates and from time to time
subject to this Agreement (as from time to time amended by the Servicer to
reflect the addition of Replacement Mortgage Loans and the deletion of Deleted
Mortgage Loans pursuant to the provisions of this Agreement), attached hereto
as Exhibit H, setting forth the following information with respect to each
Mortgage Loan:
(i) the loan number;
(ii) the city, state and zip code for each Mortgaged Property;
(iii) the Mortgage Rate;
(iv) the original term to maturity;
(v) the remaining term to maturity;
(vi) the original principal balance;
(vii) the Principal Balance as of the Cut-off Date;
(viii) the first Due Date;
(ix) the Monthly Payment in effect as of the Cut-off Date;
(x) the Loan-to-Value Ratio at origination;
(xi) the Appraised Value of the Mortgaged Property;
(xii) the Net Mortgage Rate;
(xiii) a code indicating whether the Mortgaged Property is
either (a) a detached single-family dwelling or a de minimis planned unit
development, (b) a condominium unit or a dwelling in a planned unit
development, or (c) a two- to four-family residential property;
(xiv) a code indicating whether the Mortgaged Property at the
time of origination was represented to be owner-occupied;
(xv) the purpose for which the financing was made; and
(xvi) the Retained Yield Rate.
Such schedule shall also set forth the total of the amounts described under
(vi) above for all of the Mortgage Loans. Such schedule may be in the form of
more than one list collectively setting forth all of the information required
and shall also be in a computer-readable format acceptable to the Trustee.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders or
addenda thereto.
Mortgage Rate: The annual fixed rate of interest borne by a Mortgage
Note.
Mortgaged Property: The property securing a Mortgage Note pursuant to
the related Mortgage.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate for such Mortgage Loan less the related
Expense Fee Rate.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the Compensating Interest Payment for such
Distribution Date.
1933 Act: The Securities Act of 1933, as amended.
Nonrecoverable Advance: Any portion of any Servicing Advance
or Monthly Advance previously made or proposed to be made in respect of a
Mortgage Loan by the Servicer hereunder which, in the good faith judgment of
the Servicer, will not be ultimately recoverable from Late Collections. The
determination by the Servicer that it has made a Nonrecoverable Advance or
that any proposed Monthly Advance or Servicing Advance, if made, would
constitute a Nonrecoverable Advance shall be evidenced by an Officers'
Certificate delivered to the Trustee.
Offered Certificate: As set forth in the Preliminary Statement.
Officers' Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, the President, an Executive Vice
President, Senior Vice President, a Vice President, an Assistant Vice
President or other authorized officer, and by the Treasurer, the Secretary, or
one of the Assistant Treasurers, Assistant Vice Presidents or Assistant
Secretaries of the Depositor, the Sellers, the Servicer, a Sub-Servicer or the
Trustee, as the case may be, and delivered to the Depositor, the Sellers, the
Servicer or the Trustee, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Servicer, reasonably acceptable to the Trustee. With
respect to the definition of Eligible Account in this Article I and Sections
2.04 and 7.04 hereof and any opinion dealing with the qualification of the
REMIC or compliance with the REMIC Provisions, such counsel must (i) in fact
be independent of the Depositor and the Servicer, (ii) not have any direct
financial interest in the Depositor or the Servicer or in any affiliate of
either of them and (iii) not be connected with the Depositor or the Servicer
as an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions.
Optional Termination: The purchase of the Mortgage Loans pursuant to
Section 10.01.
Optional Termination Date: The date fixed by the Servicer for the
purchase of the Mortgage Loans pursuant to Section 10.01.
Participant: A broker, dealer, bank, other financial institution or
other Person for whom DTC effects book-entry transfers and pledges of
securities deposited with DTC.
Pass-Through Entity: (a) a regulated investment company described in
Section 851 of the Code, a real estate investment trust described in Section
856 of the Code, a common trust fund or an organization described in Section
1381(a) of the Code, (b) any partnership, trust or estate or (c) any person
holding a Class A Certificate as nominee for another person.
Pass-Through Rate: For any interest-bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement. Interest on the Certificates will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Percentage Interest: The percentage interest (which may be expressed
as a fraction) evidenced by any Certificate, which (a) in the case of the
Class A, Class M, Class B, Class P and Class S Certificates, is equal to a
fraction, the numerator of which is the Initial Certificate Principal (or, in
the case of the Class S Certificates, the initial Class S Notional Amount)
Balance of such Certificate, and the denominator of which is equal to the
aggregate Initial Certificate Principal Balances (or, in the case of the Class
S Certificates, the initial Class S Notional Amount) of all Certificates of
the same Class and (b) in the case of the Class S or Class R Certificates, is
set forth on the face thereof.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Premium Rate Mortgage Loans: The Mortgage Loans having Net Mortgage
Rates equal to or in excess of 7.75%.
Prepayment Interest Shortfall: As to any Distribution Date and
Principal Prepayment in Full, the difference between (i) one full month's
interest at the applicable Mortgage Rate (giving effect to any applicable
Relief Act Reduction, Debt Service Reduction and Deficient Valuation), as
reduced by the Servicing Fee Rate and the related Retained Yield Rate, on the
outstanding principal balance of the related Mortgage Loan immediately prior
to such prepayment and (ii) the amount of interest actually received with
respect to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment Period: With respect to any Distribution Date, the
calendar month prior to the month in which such Distribution Date occurs.
Primary Mortgage Insurance Policy: Each primary policy of mortgage
guaranty insurance with respect to the Mortgage Loans or any replacement
policy therefor.
Principal Balance: With respect to any Mortgage Loan, as of the date
of any determination, the principal balance of such Mortgage Loan remaining to
be paid by the Mortgagor as of the Cut-off Date after deduction of all
payments due on or before the Cut-off Date, reduced (but not below zero) by
the sum of (i) all amounts previously received or collected by the Servicer in
respect of principal of such Mortgage Loan subsequent to the Cut-off Date,
other than amounts representing payments due on such Mortgage Loan on or prior
to the Cut-off Date; (ii) all Liquidation Proceeds (net of Liquidation
Expenses) and Insurance Proceeds allocated to principal; (iii) all amounts
allocable to the principal of such Mortgage Loan previously paid by the
Servicer as part of a Monthly Advance, in each case which were distributed to
Certificateholders pursuant to Section 4.02; and (iv) all Realized Losses
allocated to Certificateholders with respect thereto on any previous
Distribution Date. In the case of a Replacement Mortgage Loan, "Principal
Balance" shall mean, at the time of any determination, the principal balance
of such Replacement Mortgage Loan on the date of substitution after deduction
of all payments due on or before the Due Date in the month of substitution,
reduced by the sums described in (i) through (iv), above, after such Due Date.
Principal Payment Amount: For any Distribution Date, the sum of (i)
the principal portion of the Monthly Payments on the Mortgage Loans due on the
related Due Date, (ii) the principal portion of repurchase proceeds received
with respect to any Mortgage Loan which was repurchased as permitted or
required by this Agreement during the related Prepayment Period and (iii) any
other unscheduled payments of principal which were received on the Mortgage
Loans during the related Prepayment Period, other than Principal Prepayments
or Liquidation Principal.
Principal Prepayment: Any payment or other recovery of principal in
full ( a "Principal Prepayment in Full") or in part (a "Principal Prepayment
in Part") of the then-outstanding principal on a Mortgage Loan (other than
Condemnation Proceeds, Insurance Proceeds, and Liquidation Proceeds) which is
received in advance of its scheduled Due Date (not including any prepayment
charge or premium thereon), and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or
months subsequent to the month of prepayment.
Principal Prepayment Amount: For any Distribution Date, the sum of
all Principal Prepayments relating to the Mortgage Loans which were received
during the related Prepayment Period.
Private Certificates: As set forth in the Preliminary Statement.
Pro Rata Allocation: With respect to Excess Losses or Extraordinary
Losses, the allocation of the principal portion of such losses to all Classes
of Certificates (other than the Class P and Class S Certificates), pro rata
according to their respective Certificate Principal Balances in reduction
thereof (except if the loss is recognized with respect to a Class P Mortgage
Loan, in which case the applicable Class P Fraction of such loss will be
allocated to the Class P Certificates and the remainder will be allocated as
described above), and the allocation of the interest portion of such losses to
all Classes of Certificates (other than the Class P Certificates), pro rata
according to the amount of interest accrued but unpaid on each such Class, in
reduction thereof, and then to such Classes pro rata according to their
respective Certificate Principal Balances in reduction thereof.
Pro Rata Share: As to any Distribution Date and any Class of Class M
Certificates and any Class of Class B Certificates, the portion of the
Subordinate Principal Distribution Amount allocable to such Class, equal to
the product of the Subordinate Principal Distribution Amount on such
Distribution Date and a fraction, the numerator of which is the related
Certificate Principal Balance of such Class and the denominator of which is
the aggregate of the Certificate Principal Balances of the Class M
Certificates and the Class B Certificates.
Prospectus: The Prospectus, dated August 28, 2000, relating to the
offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the 1933 Act with respect to the offer and sale of the offered
certificates.
Prospectus Supplement: The Prospectus Supplement, dated December 5,
2000, relating to the offering of the Offered Certificates in the form in
which it was or will be filed with the Securities and Exchange Commission
pursuant to Rule 424(b) under the 1933 Act with respect to the offer and sale
of the offered certificates.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Applicable Seller or the Servicer pursuant to Section 2.01,
2.02 or 2.04, the sum of (i) 100% of the Principal Balance of the Mortgage
Loan on the date of such purchase, (ii) accrued and unpaid interest on the
Mortgage Loan at a rate equal to the sum of the Net Mortgage Rate and the
Trustee Fee Rate and (iii) the amount of any unreimbursed Monthly Advances and
other advances made by the Servicer with respect to such Mortgage Loan and
reimbursable to the Servicer hereunder. With respect to any Mortgage Loan
required or allowed to be purchased, the Servicer or the Applicable Seller, as
applicable, shall deliver to the Trustee an Officers' Certificate as to the
calculation of the Purchase Price.
Qualified Depository: (i) A depository, the long-term unsecured debt
obligations of which are rated by Moody's or S&P (or a comparable rating
agency) in one of its three highest rating categories, (ii) the corporate
trust department of a national bank or (iii) a depository which fully insures
the Custodial Account and the Escrow Account with insurance provided by the
FDIC.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each other state having jurisdiction over such insurer in
connection with the insurance policy issued by such insurer, duly authorized
and licensed by the insurance regulatory authority of the state of its
principal place of business and, to the extent required by applicable law,
each such other state, to transact a mortgage guaranty insurance business in
such state and each such other state and to write the insurance provided by
the insurance policy issued by it and approved as an insurer by ▇▇▇▇▇▇▇ Mac or
▇▇▇▇▇▇ Mae and whose claims-paying ability will not adversely affect the
rating on the Certificates.
Rating Agency: S&P and Fitch or any successor thereto.
Realized Loss: An amount determined by the Servicer and evidenced by
an Officers' Certificate delivered to the Trustee, in connection with any
Mortgage Loan equal to (a) with respect to any Liquidated Mortgage Loan, the
excess of the Principal Balance of such Liquidated Mortgage Loan plus interest
thereon at the Net Mortgage Rate from the Due Date as to which interest was
last paid up to the Due Date next succeeding such liquidation over proceeds,
if any, received in connection with such liquidation, after application of all
withdrawals permitted to be made by the Servicer from the related Custodial
Account with respect to such Mortgage Loan, (b) with respect to any Mortgage
Loan which has become the subject of a Deficient Valuation, the excess of the
Principal Balance of the Mortgage Loan over the principal amount as reduced in
connection with the proceedings resulting in the Deficient Valuation, (c) with
respect to any Mortgage Loan which has become the subject of a Debt Service
Reduction, the present value of all monthly Debt Service Reductions on such
Mortgage Loan, assuming that the Mortgagor pays each Monthly Payment on the
applicable Due Date and that no Principal Prepayments are received with
respect to such Mortgage Loan, discounted monthly at the applicable Mortgage
Rate or (d) the amount of any reduction by the Servicer to the Principal
Balance of the Mortgage Loan pursuant to any modification permitted in
accordance with the terms of this Agreement.
Record Date: With respect to any Distribution Date, other than the
first Distribution Date, the close of business on the last Business Day of the
month preceding the month in which the applicable Distribution Date occurs.
With respect to the first Distribution Date, the Closing Date.
Registration Statement: That certain registration statement on Form
S-3, as amended (Registration No. 333-37616), relating to the offering by the
Depositor from time to time of its Mortgage-Backed Pass-Through Certificates
(Issuable in Series) as heretofore declared effective by the Securities and
Exchange Commission.
Regular Certificates: All of the Certificates other than the Class R
Certificates.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit", within the
meaning of Section 860D of the Code.
REMIC Election: An election, for federal income tax purposes, to
treat certain assets as a REMIC.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Section 860A through 860G of the Subchapter M of
Chapter 1 of the Code and related provisions, and regulations promulgated
thereunder, as the foregoing may be in effect from time to time.
REO Property: Any Mortgaged Property acquired by or in the name of
the Trustee for the benefit of the Certificateholders in foreclosure or by
deed-in-lieu of foreclosure.
Replacement Mortgage Loan: A Mortgage Loan substituted by the
Servicer or the Applicable Seller for a Deleted Mortgage Loan which must, on
the date of such substitution, as confirmed in an Officers' Certificate
delivered to the Trustee, (i) have an outstanding principal balance, after
deduction of all scheduled payments due in the month of substitution (or in
the case of a substitution of more than one mortgage loan for a Deleted
Mortgage Loan, an aggregate principal balance), not in excess of the
outstanding principal balance of the Deleted Mortgage Loan (the amount of any
shortfall shall be deposited in the Certificate Account by the Applicable
Seller out of its own funds without right of reimbursement as provided in
Section 2.04), (ii) have a Mortgage Interest Rate not less than and not more
than 1% greater than the Mortgage Interest Rate of the Deleted Mortgage Loan,
(iii) have a remaining term to maturity not greater than and not more than one
year less than that of the Deleted Mortgage Loan, (iv) be of the same type as
the Deleted Mortgage Loan, (vi) have a Net Mortgage Rate not less than, and
not more than 1% greater than the Deleted Mortgage Loan and (vii) comply with
each representation and warranty relating to the Mortgage Loans set forth in
Section 2.04 hereof. Any Replacement Mortgage Loan that replaces a Class P
Mortgage Loan will be treated as having the same Net Mortgage Rate for
purposes of calculating the Class P Fraction in respect of such Replacement
Mortgage Loan.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement in respect of such Mortgage Loan or the related Mortgaged
Property.
Responsible Officer: When used with respect to the Trustee, shall
mean any officer within the corporate trust department of the Trustee,
including any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
Restricted Class: As defined in Section 4.02(e).
Retained Yield: With respect to any Mortgage Loan and a Due Period,
the amount equal to the applicable Retained Yield Rate and the Principal
Balance of such Mortgage Loan on the first day of the related Due Period.
Retained Yield Rate: With respect to any Mortgage Loan, as set forth
on the Mortgage Loan Schedule.
Rule 144A: Rule 144A under the 1933 Act, as in effect from time to
time.
Scheduled Final Distribution Date: The Distribution Date in December,
2030.
Seller: Washington Mutual Bank, FA., Washington Mutual Bank fsb and
Washington Mutual Bank, each only with respect to the Mortgage Loans sold by
it to Credit Suisse First Boston Mortgage Capital LLC.
Senior Certificates: As specified in the Preliminary Statement.
Senior Liquidation Amount: As to any Distribution Date, the
aggregate, for each Mortgage Loan which became a Liquidated Mortgage Loan
during the related Prepayment Period, of the lesser of (i) the Senior
Percentage of the Stated Principal Balance of such Mortgage Loan (exclusive of
the Class P Fraction thereof, with respect to any Class P Mortgage Loan) and
(ii) the Senior Prepayment Percentage of the Liquidation Principal with
respect to such Mortgage Loan.
Senior Percentage: As to any Distribution Date, the percentage
equivalent of a fraction the numerator of which is the aggregate of the
Certificate Principal Balances of the Class A and Class R Certificates and the
denominator of which is the aggregate of the Certificate Principal Balances of
the Class A, Class M, Class B and Class R Certificates, in each case,
immediately prior to such Distribution Date; provided, however, in no event
will the Senior Percentage exceed 100%.
Senior Prepayment Percentage: The Senior Prepayment Percentage for
any Distribution Date occurring during the five years beginning on the first
Distribution Date will equal 100%. The Senior Prepayment Percentage for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date will be as follows: for any Distribution Date in the first
year thereafter, the Senior Percentage plus 70% of the Subordinate Percentage
for such Distribution Date; for any Distribution Date in the second year
thereafter, the Senior Percentage plus 60% of the Subordinate Percentage for
such Distribution Date; for any Distribution Date in the third year
thereafter, the Senior Percentage plus 40% of the Subordinate Percentage for
such Distribution Date; for any Distribution Date in the fourth year
thereafter, the Senior Percentage plus 20% of the Subordinate Percentage for
such Distribution Date; and for any Distribution Date thereafter, the Senior
Percentage for such Distribution Date (unless on any of the foregoing
Distribution Dates the Senior Percentage exceeds the initial Senior
Percentage, in which case the Senior Prepayment Percentage will once again
equal 100%).
Notwithstanding the foregoing no decrease in the reduction to the
Senior Prepayment Percentage as described above will occur if as of the first
Distribution Date as to which any such decrease applies (i) the outstanding
principal balance of the Mortgage Loans delinquent 60 days or more (averaged
over the preceding six month period), as a percentage of the aggregate
Certificate Principal Balance of the Subordinate Certificates as of such
Distribution Date is equal to or greater than 50% and (ii) cumulative Realized
Losses exceed (a) with respect to the Distribution Date on the fifth
anniversary of the first Distribution Date, 30% of the aggregate Certificate
Principal Balance of the Subordinate Certificates as of the Delivery Date (the
"Original Subordinate Principal Balance"), (b) with respect to the
Distribution Date on the sixth anniversary of the first Distribution Date, 35%
of the Original Subordinate Principal Balance, (c) with respect to the
Distribution Date on the seventh anniversary of the first Distribution Date,
40% of the Original Subordinate Principal Balance, (d) with respect to the
Distribution Date on the eighth anniversary of the first Distribution Date,
45% of the Original Subordinate Principal Balance and (e) with respect to the
Distribution Date on the ninth anniversary of the first Distribution Date, 50%
of the Original Subordinate Principal Balance.
Senior Principal Distribution Amount: As to any Distribution Date,
the sum of (i) the Senior Percentage of the Principal Payment Amount
(exclusive of the portion thereof attributable to the Class P Principal
Distribution Amount), (ii) the Senior Prepayment Percentage of the Principal
Prepayment Amount (exclusive of the portion thereof attributable to the Class
P Principal Distribution Amount), and (iii) the Senior Liquidation Amount.
Servicer: Washington Mutual Bank, FA or any successor under the terms
of this Agreement.
Servicer Advance Date: The date on which the Servicer is required to
make a Monthly Advance pursuant to Section 5.04 hereof.
Servicer Mortgage File: All documents pertaining to a Mortgage Loan
not required to be included in the Trustee Mortgage File and held by the
Servicer or any Sub-Servicer.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii)
expenses reimbursable to the Servicer pursuant to Section 3.13 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Sections 3.10 and 3.11.
Servicing Fee: For each calendar month, as to each Mortgage Loan, an
amount equal to one month's interest (or in the event of any payment of
interest which accompanies a Principal Prepayment in full made by the
Mortgagor, interest for the number of days covered by such payment of
interest) at the Servicing Fee Rate on the Principal Balance of such Mortgage
Loan immediately preceding the Distribution Date occurring in such month.
Servicing Fee Rate: 0.25% per annum.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Trustee on the
Delivery Date by the Servicer pursuant to this Agreement, as such list may
from time to time be amended.
Special Hazard Loss: Any Realized Loss not in excess of the cost of
the lesser of repair or replacement of a Mortgaged Property suffered by such
Mortgaged Property on account of direct physical loss, exclusive of (i) any
loss of a type covered by a hazard policy or a flood insurance policy required
to be maintained in respect of such Mortgaged Property pursuant to Section
3.11, except to the extent of the portion of such loss not covered as a result
of any coinsurance provision and (ii) any Extraordinary Loss.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $1,806,110. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan, and (iii) the aggregate
principal balances of the Mortgage Loans secured by Mortgaged Properties
located in the single California postal zip code area having the highest
aggregate principal balance of any such zip code area and (b) the Special
Hazard Loss Coverage Amount as of the Delivery Date less the amount, if any,
of Special Hazard Losses allocated to the Certificates since the Delivery
Date. All principal balances for the purpose of this definition will be
calculated as of the first day of the calendar month preceding the month of
such Distribution Date after giving effect to Monthly Payments on the Mortgage
Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which
a Special Hazard Loss has occurred.
Standard Hazard Policy: Each standard hazard insurance policy or
replacement therefor referred to in Section 3.11.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to any previous
Curtailments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due
on such Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Step Down Percentage: As of any Distribution Date, the percentage
indicated below:
DISTRIBUTION DATE OCCURRING IN STEP DOWN PERCENTAGE
--------------------------------- --------------------
December 2000 through November 2005 0%
December 2005 through November 2006 30%
December 2006 through November 2007 40%
December 2007 through November 2008 60%
December 2008 through November 2009 80%
December 2009 and thereafter 100%
Stripped Interest Rate: With respect to any Premium Rate Mortgage
Loan, the excess, if any, of the Net Mortgage Rate for such Mortgage Loan over
7.75%.
Sub-Servicer: Any other entity with respect to any Mortgage Loan
under any Sub-Servicing Agreement applicable to such Mortgage Loan and any
successors and assigns under such Sub-Servicing Agreement.
Sub-Servicing Agreement: Any servicing agreement between the Servicer
and a Sub-Servicer pursuant to which the Servicer delegates any of its
servicing responsibilities with respect to any of the Mortgage Loans.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Liquidation Amount: For any Distribution Date, the
excess, if any, of the aggregate Liquidation Principal of all Mortgage Loans
which became Liquidated Mortgage Loans during the related Prepayment Period
over the Senior Liquidation Amount for such Distribution Date.
Subordinate Percentage: As to any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date. The Subordinate Percentage as of
the Delivery Date will be approximately 4.02%.
Subordinate Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date; provided,
however, that if the aggregate Certificate Principal Balance of the Class A
and Class R Certificates has been reduced to zero, then the Subordinate
Prepayment Percentage will equal 100%.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and the Subordinate Certificates will equal the sum of (i)
the Subordinate Percentage of the Principal Payment Amount (exclusive of the
portion thereof attributable to the Class P Principal Distribution Amount),
(ii) the Subordinate Prepayment Percentage of the Principal Prepayment Amount
(exclusive of the portion thereof attributable to the Class P Principal
Distribution Amount), (iii) the Subordinate Liquidation Amount.
Subordination Level: As to any Distribution Date and any Class of
Subordinate Certificates, the percentage obtained by dividing the sum of the
Certificate Principal Balances of all Classes of Certificates which are
subordinate in right of payment to such Class by the sum of the Certificate
Principal Balances of all Classes of Certificates, in each case immediately
prior to such Distribution Date.
Substitution Adjustment Amount: As defined in Section 2.04.
Transferee Affidavit and Agreement: As defined in Section
6.02(g)(i)(B).
Trust Fund: The corpus of the trust created by this Agreement
consisting of (a) the Mortgage Loans listed in the Mortgage Loan Schedule,
including all interest and principal received or receivable by the Depositor
on or with respect to the Mortgage Loans after the Cut-off Date, but not
including payments of principal and interest due and payable on the Mortgage
Loans on or before the Cut-off Date, together with the Mortgage Files relating
to the Mortgage Loans, (b) REO Property, (c) the Custodial Account and the
Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement, (d) any insurance policies with
respect to the Mortgage Loans and (e) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or other liquid
property.
Trustee: U.S. Bank National Association, a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and
any successor thereto, as provided herein.
Trustee Fee: The fee payable to the Trustee on each Distribution Date
for its services as Trustee hereunder, in an amount equal to one-twelfth of
the Trustee Fee Rate multiplied by the Principal Balance of the Mortgage Loans
immediately prior to such Distribution Date.
Trustee Fee Rate: 0.0080% per annum.
Trustee Mortgage File: The mortgage documents listed in Section 2.01
hereof pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Trustee Mortgage File pursuant to this Agreement.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
Voting Rights: The portion of the aggregate voting rights of all the
Certificates evidenced by a Certificate. 98% of all Voting Rights will be
allocated to the Certificates (other than the Class S and Class R
Certificates) in proportion to their Certificate Principal Balances, 1% of all
Voting Rights will be allocated among the Class S Certificates in proportion
to their Percentage Interests and 1% of all Voting Rights will be allocated to
the Class R Certificates.
WMB Mortgage Loans: Those Mortgage Loans listed on Exhibit R hereto.
WMBFA Mortgage Loans: Those Mortgage Loans listed on Exhibit P
hereto.
WMBFSB Mortgage Loans: Those Mortgage Loans listed on Exhibit Q
hereto.
ARTICLE II
CONVEYANCE OF TRUST FUND;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Trust Fund.
The Depositor hereby sells, transfers, assigns, delivers, sets over
and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, the Depositor's right, title and
interest in and to (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, including all interest and principal received or receivable by the
Depositor on or with respect to the Mortgage Loans after the Cut-off Date, but
not including payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date or the related Retained Yield,
which Mortgage Loans the Depositor shall cause to be delivered to the Trustee
on or prior to the Delivery Date, together with the Trustee Mortgage Files
relating to the Mortgage Loans, (b) REO Property, (c) the Custodial Account,
the Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement, (d) any insurance policy with respect
to the Mortgage Loans and (e) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
In connection with any such transfer and assignment, the Depositor
shall deliver or cause to be delivered to, and deposit with, the Trustee the
following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the original Mortgage Note, endorsed (on the Mortgage Note or an
allonge attached thereto) "Pay to the order of _______________________,
without recourse," with all intervening endorsements showing a complete,
valid and proper chain of title from the originator of such Mortgage Loan
to the Applicable Seller; or;
(ii) a certified copy of the Mortgage Note (endorsed as provided
above) together with a lost note affidavit providing indemnification to
the holder thereof for any losses incurred due to the fact that the
original mortgage note is missing;
(iii) the original Mortgage, with evidence of recording thereon,
provided that if the original Mortgage has been delivered for recording
to the appropriate public recording office of the jurisdiction in which
the Mortgaged Property is located but has not yet been returned to the
Applicable Seller or the Depositor by such recording office, the
Depositor shall, no later than 60 days following the Closing Date,
deliver to the Trustee either (x) a certified true, correct and complete
copy of such original Mortgage so certified by the Depositor, together
with a certificate of the Depositor certifying that such original
Mortgage has been so delivered to such recording office or (y) unless the
original of such Mortgage is permanently retained by the applicable
recording office, the original of such Mortgage, with evidence of
recording thereon; if such Mortgage has been lost or if such public
recording office retains the original recorded Mortgage, the Depositor
shall deliver or cause to be delivered to the Trustee a photocopy of such
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage;
(iv) the original Assignment of Mortgage, in blank, which assignment
shall be in form and substance acceptable for recording (except for the
insertion of the name of the assignee and the recording information) and
in compliance with all applicable federal and state laws, rules,
regulations and ordinances; or if as a result of the related Mortgage not
having been returned from the applicable recording office, a copy of the
Assignment of Mortgage excluding the information to be provided by the
recording office;
(v) originals of all intervening Assignments of Mortgage, with
evidence of recording thereon, showing a complete chain of title from the
originator, provided that if any such original intervening Assignment of
Mortgage has been delivered for recording to the appropriate public
recording office of the jurisdiction in which the Mortgaged Property is
located but has not yet been returned to the Applicable Seller or the
Depositor by such recording office, the Depositor may have delivered to
the Trustee a certified true copy of such original Assignment of Mortgage
certified by the Depositor to be a true copy of the original Assignment
of Mortgage which has been so delivered to such recording office; and
(vi) originals of all assumption and modification agreements, if any,
unless such originals are permanently retained by the applicable
recording office (in which event the Depositor shall deliver to the
Trustee a photocopy of each such original, certified by the applicable
public recording office to be a true and complete copy of the original),
and an endorsement to the original policy of title insurance extending
coverage to the date and time of the recording of any such modification
or assumption.
In the event that the Depositor cannot deliver a duplicate original
or true copy certified as stated above of such document required to be
delivered pursuant to clause (iii) above, within 120 days of the Delivery
Date, the Applicable Seller shall purchase the related Mortgage Loan at the
Purchase Price therefor or, replace the Mortgage Loan with a Replacement
Mortgage Loan and deposit in the Custodial Account any related Substitution
Adjustment Amount if the substitution occurs within the time periods for
substitution in Section 2.04. The Applicable Seller shall promptly deliver, or
cause the Servicer to deliver, to the Trustee (A) such original document with
evidence of recording indicated thereon or a photocopy of such document
certified by the appropriate county recorder's office to be a true and
complete copy of the original thereof, upon receipt thereof from the public
recording official or from the Servicer, and (B) upon discovery of any defect
or omission in the deliveries of any of items (ii) through (iv) above with
respect to any Mortgage Loan, a correct and complete document or instrument
meeting the requirements of such item or a certified copy thereof, certified
by the relevant recording office, but in no event shall any such delivery be
made later than 90 days following the Delivery Date (unless such document has
not been returned from the relevant recording office at such time, in which
case the Servicer shall make such delivery within 270 days of the Delivery
Date). From time to time the Servicer may forward or cause to be forwarded to
the Trustee for the benefit of the Certificateholders additional original
documents evidencing an assumption or modification of a Mortgage Loan.
Within 60 days of the Delivery Date, the Depositor shall either (i)
record in the appropriate public office for real property records each
original assignment referred to in (v) above with respect to each Mortgaged
Property, and the Servicer shall release any such assignment to the Depositor
or the Applicable Seller, as applicable, for such purpose or (ii) deliver to
the Trustee an Opinion of Counsel, acceptable to the Rating Agencies, to the
effect that, under the laws of the jurisdiction in which the related Mortgaged
Property is located, recordation of the assignment is not necessary to protect
the Trustee's and the Certificateholder's interest in the related Mortgage
Loan. The Depositor or the Applicable Seller shall promptly deliver to the
Trustee each original assignment with evidence of recording indicated thereon
or a photocopy thereof certified by the appropriate county recorder's office
to be a true and complete copy of the original thereof, upon receipt thereof
from the public recording official. If any assignment is returned unrecorded
to the Depositor or the Applicable Seller because of any defect therein, the
Depositor or the Seller shall cure or correct such defect and cause such
assignment to be recorded in accordance with this paragraph and if such defect
is not cured the Applicable Seller shall purchase the Mortgage Loan at the
Purchase Price therefor.
SECTION 2.02 Acceptance by Trustee.
The Trustee will hold the documents referred to in Section 2.01 above
and the other documents constituting a part of the Trustee Mortgage Files
delivered to it in trust for the use and benefit of all present and future
Certificateholders. Upon execution and delivery of this Agreement and within
45 days after the execution and delivery of this Agreement, the Trustee shall
ascertain whether all documents required to be delivered to it pursuant to
Section 2.01 hereof are in its possession, and shall deliver to the Depositor,
the Sellers and the Servicer a certification (upon execution and delivery of
this Agreement, the "Initial Certification" and within 120 days thereof, the
"Final Certification", respectively) in the forms set forth as Exhibits F and
G hereto to the effect that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule: (a) all documents required to be delivered to the Trustee
pursuant to this Agreement are in its possession, (b) such documents have been
reviewed by it and have not been mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the foregoing documents, the
information set forth in items (i) through (iii) of the definition of Mortgage
Loan Schedule respecting such Mortgage Loan accurately reflects the
information contained in the documents in the Trustee Mortgage File and (d)
each Mortgage Note has been endorsed and each assignment of Mortgage has been
delivered as provided in Section 2.01 hereof. The Trustee shall deliver to the
Depositor, the Sellers and the Servicer a copy of such Final Certification.
If, in the course of such review, the Trustee finds any document or documents
constituting a part of a Mortgage File which do not meet the requirements of
(a)-(d) above, the Trustee shall promptly notify the Servicer, the Applicable
Seller and the Depositor in writing, and request that the Applicable Seller
correct or cure such defect. The Trustee shall promptly notify the Depositor
in writing if any original assignment referred to in clause (v) of Section
2.01 has not been received by it prior to January 31, 2001. In the event the
Applicable Seller fails to cure any document deficiency or defect reflected in
the Final Certification or as otherwise required under Section 2.01, it shall
not be the obligation of the Trustee hereunder to cure the same, and the
Applicable Seller shall purchase the Mortgage Loan at the Purchase Price
therefor or replace the Mortgage Loan with a Replacement Mortgage Loan and
deposit in the Custodial Account any related Substitution Adjustment Amount if
the substitution occurs within the time periods for substitution in Section
2.04.
Each of the Sellers, the Servicer and the Depositor agrees that at
any time and from time to time upon written request of the Trustee, it shall
promptly and duly execute and deliver any and all such further documents and
assurances, and take such further actions as the Trustee reasonably may
request in order to obtain or more fully vest the benefits of the assignment
intended hereunder (as set forth hereinabove in Section 2.01 and hereinbelow
in Section 2.03) and of the rights and powers herein granted.
The Trustee shall retain possession and custody of each Trustee
Mortgage File in accordance with and subject to the terms and conditions set
forth herein.
SECTION 2.03 Representations, Warranties and
Covenants of the Sellers.
As of the Delivery Date, each of the Sellers, severally and not
jointly, hereby makes to the Depositor and the Trustee the representations,
warranties and covenants below.
(i) If WMBFA, the Seller is a federally chartered savings
association, duly organized, validly existing and in good standing under
the laws of the United States. If WMBFSB, the Seller is a savings bank,
duly organized, validly existing and in good standing under the laws of
the United States. If WMB, the Seller is a Washington state chartered
stock savings bank, duly organized, validly existing and in good standing
under the laws of the State of Washington.
(ii) The Seller has all licenses necessary to carry on its business
as now being conducted and is licensed, qualified and in good standing in
the states where the Mortgaged Properties are located if the laws of such
states require licensing or qualification in order to conduct business of
the type conducted by the Seller and to the extent necessary to ensure
the enforceability of each Mortgage Loan. The Seller has the corporate
power and authority to enter into, execute and deliver this Agreement and
all documents and instruments executed and delivered pursuant hereto and
to perform its obligations in accordance therewith. The execution,
delivery and performance of this Agreement by the Seller and the
consummation of the transactions contemplated hereby, including, without
limitation, the repurchase obligations hereinafter contained, have been
duly and validly authorized. This Agreement evidences the valid, binding
and enforceable obligations of the Seller. All requisite corporate action
has been taken by the Seller to make this Agreement valid and binding
upon the Seller in accordance with its terms.
(iii) No consent, approval, authorization, or order of any court or
governmental agency or body relating to the transactions contemplated by
this Agreement is required as to the Seller or, if required, such
consent, approval, authorization, or order has been or will, prior to the
Delivery Date, be obtained, except for any recordations of Assignments of
the Mortgages to or for the benefit of the Trustee on behalf of the
Certificateholders pursuant to this Agreement.
(iv) The consummation of the transactions contemplated by this
Agreement, including without limitation the fulfillment of or compliance
with the terms and conditions of this Agreement, are in the ordinary
course of business of the Seller and will not (i) result in the breach of
any term or provision of the charter or by-laws of the Seller, (ii)
result in the breach of any term or provision of, or conflict with or
constitute a default under, or result in the acceleration of any
obligation under, any material agreement, indenture, loan or credit
agreement or other instrument to which the Seller or its property is
subject or (iii) result in the violation of any law, rule, regulation,
order, judgment, or decree to which the Seller or its property is
subject.
(v) There is no action, suit, proceeding or investigation pending or,
to the best of the Seller's knowledge, threatened against the Seller
which, either in any one instance or in the aggregate, is in the Seller's
judgment, likely to result in any material impairment of the right or
ability of the Seller to carry on its business substantially as now
conducted, or which would draw into question the validity of this
Agreement or the Mortgage Loans, or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein or
therein, or which would be likely to impair materially the ability of the
Seller to perform its obligations hereunder or thereunder.
(vi) The Seller is an approved servicer of mortgage loans for ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇ Mac, in good standing.
(vii) The Seller is a HUD approved mortgagee pursuant to Section 203
of the National Housing Act. No event has occurred, including but not
limited to a change in insurance coverage, which would make the Seller
unable to comply with HUD eligibility requirements or which would
required notification to HUD.
SECTION 2.04 Representations, Warranties and
Covenants of the Sellers with respect
to the Mortgage Loans.
(a) Each Seller, severally and not jointly, hereby makes to the
Depositor and the Trustee for the benefit of the Depositor and the
Certificateholders the representations, warranties and covenants below with
respect only to its related Mortgage Loans. Unless otherwise specified
therein, each of such representations, warranties and covenants is made as of
the Delivery Date unless otherwise stated therein.
(i) The information with respect to such Mortgage Loan set forth on
the Mortgage Loan Schedule is complete, true and correct.
(ii) The Mortgage is a valid, subsisting and enforceable first lien
on the Mortgaged Property, including all buildings, fixtures,
installations and improvements to the Mortgaged Property, and the
Mortgaged Property is free and clear of all encumbrances and liens having
parity with or priority over the first lien of the Mortgage except for
(i)the lien of current real property taxes and assessments not yet due
and payable, (ii)covenants, conditions and restrictions, rights of way,
easements, mineral right reservations and other matters of public record
as of the date of recording of such Mortgage, such exceptions generally
being acceptable under prudent mortgage lending standards or specifically
reflected in the appraisal made in connection with the origination of
such Mortgage Loan and specifically referred to in the mortgagee's policy
of title insurance and (iii)other matters to which like properties are
commonly subject that do not materially interfere with the value (as
determined by the Appraised Value), use, enjoyment or marketability of
the Mortgaged Property. There are no security agreements, chattel
mortgages, or equivalent documents related to the Mortgage.
(iii) (a) The Mortgaged Property is free of material damage or waste
and in good repair, (b) there is no proceeding pending or, to the best of
the Seller's knowledge, threatened for the total or partial condemnation
of the Mortgaged Property and (c) no notice of any such pending or
threatened proceeding has been received, in each of clause (a), (b) and
(c), so as to adversely impair the value or marketability of the
Mortgaged Property.
(iv) All of the improvements which were included for the
purpose of determining the Appraised Value of the Mortgaged Property were
completed at the time that such Mortgage Loan was originated and lie
wholly within the boundaries and building restriction lines of such
Mortgaged Property. No improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation.
(v) The Seller, any of its affiliates and any other entities that
have had any interest in the Mortgage, whether as mortgagee, assignee,
pledgee, or otherwise, are (or, during the period in which they held and
disposed of such interest, were) (i) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located and (ii)(A) organized under the laws of
such state, (B) qualified to do business in such state, (C) federal
savings and loan associations or national banks having principal offices
in such state, (D) not doing business in such state or (E) not required
to qualify to do business in such state.
(vi) There are no custodial agreements in effect adversely affecting
the right or ability of the Seller to make the deliveries specified in
Section 2.01. Each of the documents with respect to such Mortgage Loan
specified in Section 2.01 or in the Mortgage File, is genuine, true,
correct and complete and has not been altered or modified by or on behalf
of the Seller in any way except as noted in the Mortgage File and as
reflected on the Mortgage Loan Schedule.
(vii) The Mortgage Note and the Mortgage are genuine, and each is the
legal, valid and binding obligation of the maker thereof and each party
assuming liability therefor, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the
enforcement of creditors' rights generally and except that the equitable
remedy of specific performance and other equitable remedies are subject
to the discretion of the courts. All parties to the Mortgage Note and the
Mortgage had legal capacity to execute the Mortgage Note and the Mortgage
and convey the estate therein purported to be conveyed, and the Mortgage
Note and the Mortgage have been duly and properly executed by such
parties or pursuant to a valid power-of-attorney that has been recorded
with the Mortgage.
(viii) The Mortgage has been duly assigned and the Mortgage Note has
been duly endorsed as provided in Section 2.01. The Assignment of
Mortgage delivered to the Trustee pursuant to Section 2.01 is in
recordable form except for the insertion of the name of the assignee and
recording information and is acceptable for recording under the laws of
the applicable jurisdiction.
(ix) Any and all requirements of any federal, state, or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity, or disclosure laws applicable to such Mortgage Loan have
been complied with, and the Seller shall maintain, in its possession,
available for the Trustee's inspection, and shall deliver to the Trustee
or its designee upon demand, evidence of compliance with all such
requirements. The consummation of the transactions contemplated by this
Agreement will not cause the violation of any such laws.
(x) The original principal balance of such Mortgage Loan did not
exceed $1.6 million. The proceeds of such Mortgage Loan have been fully
disbursed, there is no requirement for, and the Seller shall not make
any, future advances thereunder. Any future advances made prior to the
Cut-off Date have been consolidated with the principal balance secured by
the Mortgage, and such principal balance, as consolidated, bears a single
interest rate and single repayment term reflected on the related Mortgage
Loan Schedule. There is no obligation on the part of the Seller to make
payments in addition to those made by the Mortgagor, and, unless the
Mortgage Loan is a relocation loan, there is no obligation on the part of
any other party to make payments in addition to those made by the
Mortgagor. The Principal Balance as of the Cut-off Date does not exceed
the original principal amount of such Mortgage Loan. Any and all
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds therefor have been complied with,
and certificates of completion with respect thereto are contained in the
related Mortgage File. All costs, fees and expenses incurred in making,
or closing or recording such Mortgage Loan have been paid.
(xi) As of the date of origination, there was no valid offset,
defense, counterclaim or right of rescission as to the related Mortgage
Note or Mortgage, including the obligation of the Mortgagor to pay the
unpaid principal of or interest on such Mortgage Note.
(xii) Such Mortgage Loan was originated by (a) the Seller, (b) a
savings and loan association, savings bank, commercial bank, credit
union, insurance company or similar institution that is supervised and
examined by a Federal or state authority or (iii) a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act. Such Mortgage Loan has not been sold
by the Seller to any Person other than Credit Suisse First Boston
Mortgage Capital LLC.
(xiii) Principal payments on such Mortgage Loan commenced or will
commence no more than two months after funds were disbursed in connection
with such Mortgage Loan. The Mortgage Note requires a Monthly Payment
which is sufficient to fully amortize the original principal balance over
the remaining term thereof and to pay interest at the Mortgage Interest
Rate.
(xiv) Such Mortgage Loan is a residential mortgage loan having an
original term to maturity of not more than thirty years and thirty-one
days as set forth on the related Mortgage Loan Schedule, with interest
payable in arrears on the first day of each month (or such other day of
the month as may be noted on the related Mortgage Loan Schedule). On the
Delivery Date, the Mortgage Interest Rate is as set forth on the related
Mortgage Loan Schedule. Such Mortgage Loan is fully amortizing over its
term and is not subject to negative amortization.
(xv) The Mortgage Note is not and has not been secured by any
collateral, pledged account or other security, except the lien of the
Mortgage.
(xvi) The Mortgage contains customary and enforceable provisions
which render the rights and remedies of the Trustee thereof adequate for
the realization against the Mortgaged Property of the benefits of the
security, including (a) in the case of a Mortgage designated as a deed of
trust, by trustee's sale, and (b) otherwise by judicial foreclosure.
There is no homestead, dower, courtesy or other exemption or right
available to the Mortgagor or any other person which would interfere with
the right to sell the Mortgaged Property at a trustee's sale or the right
to foreclose the Mortgage. The Mortgage or Mortgage Note contains a
provision that is, to the extent not prohibited by federal or state law,
enforceable and that provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written
consent of the mortgagee thereunder. The Mortgagor has not notified the
Seller and the Seller has no knowledge of any relief requested or allowed
to the Mortgagor under the Soldiers and Sailors Civil Relief Act of 1940.
(xvii) If the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in such Mortgage, and no
fees or expenses are or will become payable by the Trustee to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor.
(xviii) The Mortgaged Property consists of a parcel of real property
separately assessed for tax purposes, upon which is erected a detached or
an attached one-to-four-family residence, an individual condominium or an
individual unit in a planned unit development, in each case that is in
compliance with ▇▇▇▇▇▇ Mae's applicable requirements. Such residence is
not (i)a property held in trust (other than a revocable inter vivos trust
that is in compliance with ▇▇▇▇▇▇ Mae's or ▇▇▇▇▇▇▇ Mac's applicable
requirements, or, if the Mortgaged Property is located in Illinois, an
Illinois land trust), (ii)a property the Mortgagor's ownership interest
in which consists of a leasehold estate, (iii)a mobile home or
manufactured home or (iv)a recreational vehicle.
(xix) The Loan-to-Value Ratio of such Mortgage Loan at the time of
origination was not greater than 95%. If such Mortgage Loan had at the
time of origination a Loan-to-Value Ratio in excess of 80%, such Mortgage
Loan is subject to a Primary Mortgage Insurance Policy.
(xx) Such Mortgage Loan was underwritten in accordance with the
underwriting guidelines of the Seller in effect at the time such Mortgage
Loan was originated.
(xxi) Such Mortgage Loan does not have a shared appreciation feature
or other contingent interest feature.
(xxii) To the best of the Seller's knowledge, no statement, report or
other document constituting a part of the Mortgage File contains any
untrue statement of fact or omits to state a fact necessary to make the
statements contained therein not misleading.
(xxiii) The origination, servicing and collection practices, if any,
used with respect to such Mortgage Loan have been in all material
respects legal, proper, prudent and customary in the mortgage origination
and servicing business.
(xxiv) The appraisal report with respect to the Mortgaged Property
contained in the Mortgage File was signed by a qualified appraiser, who
met the requirements of the Seller's appraisal policies and procedures,
who had no interest, direct or indirect, in the Mortgaged Property or in
any loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of such application and who
otherwise meets the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Such
appraisal was made in accordance with the relevant provisions of the
Financial Institutions Reform, Recovery and Enforcement Act of 1989.
(xxv) Such Mortgage Loan was not originated pursuant to
Section1602(aa) of the Truth-in-Lending Act, as amended (15 USC
Section1602(aa)).
(xxvi) Such Mortgage Loan is not what is commonly referred to as a
"no-doc" or a "low-doc" loan.
(xxvii) No misrepresentation, negligence or fraud with respect to
such Mortgage Loan has taken place on the part of the Seller or any third
party originator of such Mortgage Loan or with respect to the application
for insurance with respect to such Mortgage Loan and the Seller was not
aware, as of the date of origination of the Mortgage Loan, of any fact
that would reasonably lead the Seller to believe that any
misrepresentation, negligence or fraud had taken place on the part of any
other person, including without limitation the Mortgagor, any appraiser,
any builder or developer, or any other party involved in the origination
of the Mortgage Loan or in the application of any insurance in relation
to such Mortgage Loan.
(xxviii) As of the date of origination of the Mortgage Loan, the
Mortgaged Property was lawfully occupied under applicable law; as of the
date of origination of the Mortgage Loan, all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of
occupancy, have been made or obtained from the appropriate authorities.
(xxix) The Seller has no knowledge of any circumstances or condition
existing as of the Delivery Date with respect to the Mortgage, the
Mortgaged Property, the Mortgagor or the Mortgagor's credit standing that
can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment as of the Delivery Date.
(xxx) As of the date of sale of the Mortgage Loan by the Seller, the
related Mortgaged Property was in material compliance with all applicable
environmental laws pertaining to environmental hazards including, without
limitation, asbestos, and neither the Seller nor, to the Seller's
knowledge, the related Mortgagor, has received any notice of any
violation or potential violation of such law.
(xxxi) Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months.
(xxxii)Such Mortgage Loan is not subject to the provisions of the
Homeownership and Equity Protection Act of 1994, as amended.
(xxxiii) All improvements upon the Mortgaged Property are insured
against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area where the Mortgaged Property is located,
pursuant to insurance policies conforming to the requirements of Section
3.11 of this Agreement and issued by an insurer acceptable to ▇▇▇▇▇▇ Mae
or ▇▇▇▇▇▇▇ Mac. Each individual insurance policy has been validly issued
and is in full force and effect. Each individual insurance policy
contains a standard mortgagee clause naming the Applicable Seller, and
its successors and assigns, as mortgagee and loss payee.
(xxxiv) The origination practices, if any, used with respect to such
Mortgage Loan have been in all material respects legal, proper, prudent
and customary in the mortgage origination business.
(b) The Servicer hereby makes to the Depositor and the Trustee for
the benefit of the Depositor and the Certificateholders the representations,
warranties and covenants below. Unless otherwise specified therein, each of
such representations, warranties and covenants is made as of the Cut-Off Date.
(i) The terms of the Mortgage and the Mortgage Note have not been
impaired, waived, altered, or modified in any respect, except by a
written instrument which has been recorded, if necessary, to protect the
interest of the Trustee and each of which is a part of the Trustee
Mortgage File and which has been delivered to the Trustee. The substance
of any such alteration or modification is reflected on the related
Mortgage Loan Schedule.
(ii) No instrument of release, waiver, alteration, or modification
has been executed in connection with such Mortgage Loan, and no Mortgagor
has been released, in whole or in part, except in connection with an
assumption agreement, which is part of the Trustee Mortgage File and has
been delivered to the Trustee, and the terms of which are reflected in
the related Mortgage Loan Schedule.
(iii) There is no default, breach, violation, or event of
acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute such a default, breach,
violation, or event of acceleration, and the Servicer has not waived any
such default, breach, violation, or event of acceleration. All taxes,
governmental assessments (including assessments payable in future
installments), insurance premiums, leasehold payments, or ground rents
which previously became due and owing in respect of or affecting the
related Mortgaged Property have been paid, or an escrow of funds has been
established for the items identified in the related Mortgage Loan
Schedule in an amount sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due and payable. The
Servicer has not induced, solicited, or knowingly received any advance of
funds by a party other than the Mortgagor, directly or indirectly, for
the payment of any amount required by the Mortgage or the Mortgage Note.
(iv) There are no mechanics' or similar liens or claims which have
been filed for work, labor, or material (and no rights are outstanding
that under law could give rise to such lien) which are, or may be, liens
prior or equal to, or coordinate with, the lien of the related Mortgage,
which are not insured against by the related mortgagee's policy of title
insurance.
(v) All payments required to be made under the related Mortgage and
Mortgage Note through and including the related Cut-off Date, have been
made as of the Cut-off Date.
(vi) Such Mortgage Loan is covered by an ALTA mortgage title
insurance policy, with or such other generally used and acceptable form
of policy or insurance acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by
and the valid and binding obligation of a title insurer acceptable to
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the
Applicable Seller, and its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of such
Mortgage Loan, and such mortgage title insurance policy is in full force
and effect. No claims have been made under such policy and the Servicer
has not taken any action to impair the enforceability of such policy.
(vii) No claims have been made under such policies and the Servicer
has not taken any action to impair the enforceability of such policies.
If the Mortgaged Property is located in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), such
Mortgaged Property is covered by flood insurance meeting the requirements
of the current guidelines of the Federal Insurance Administration. The
Servicer has caused to be performed any and all acts required to preserve
the rights and interests of the Trustee in all insurance policies
required by this Agreement, including, without limitation, notification
of insurers, and assignment of policies or interests therein. All
premiums thereon have been paid. The Mortgage obligates the Mortgagor to
maintain all such insurance at the Mortgagor's cost and expense, and upon
the Mortgagor's failure to do so, authorizes the purchaser of the
Mortgage to obtain and maintain such insurance at the Mortgagor's cost
and expense and to seek reimbursement therefor from the Mortgagor, and
the Servicer has not acted or failed to act so as to impair the coverage
of any such insurance policy or the validity, binding effect and
enforceability thereof.
(viii) The servicing and collection practices, if any, used with
respect to such Mortgage Loan have been in all material respects legal,
proper, prudent and customary in the mortgage origination and servicing
business.
(ix) The Servicer has no knowledge of any circumstances or condition
existing as of the Delivery Date with respect to the Mortgage, the
Mortgaged Property, the Mortgagor or the Mortgagor's credit standing that
can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment as of the Delivery Date.
(x) The Mortgaged Property is in material compliance with all
applicable environmental laws pertaining to environmental hazards
including, without limitation, asbestos, and neither the Servicer nor, to
the Servicer's knowledge, the related Mortgagor, has received any notice
of any violation or potential violation of such law.
(xi) There exist no deficiencies in excess of $1000 with respect to
escrow deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made or which the
Servicer expects not to be cured, and no escrow deposits or payments of
other charges or payments due the Applicable Seller have been capitalized
under the Mortgage or the Mortgage Note.
Upon the discovery by the Applicable Seller, the Depositor, the
Servicer or the Trustee (or upon notice thereof in writing from a
Certificateholder) of a breach or breaches of any of the representations and
warranties made in Section this 2.04 in respect of any Mortgage Loan, or any
breach of a representation or warranty of a Seller or the Servicer set forth
in Section 2.03, which breach or breaches, individually or in the aggregate,
materially and adversely affect the interests of the Certificateholders in any
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties. The Trustee shall promptly notify the Applicable
Seller or the Servicer, as applicable, of such breach and request that the
Applicable Seller or the Servicer, as applicable, cure such breach within 60
days from the date of such notice, and if the Applicable Seller or Servicer,
as applicable, does not cure such breach in all material respects, the
Applicable Seller or the Servicer, shall either (i) substitute a Replacement
Mortgage Loan or Loans for the related Mortgage Loan, which substitution must
be made as specified in this Section or (ii) purchase such Mortgage Loan held
for the benefit of the Certificateholders from the Trustee at the Purchase
Price therefor.
The Applicable Seller or the Servicer shall not have any right to
substitute a Replacement Mortgage Loan or Loans for the affected Mortgage Loan
more than three months after the Delivery Date (or more than two years after
the Delivery Date if the related Mortgage Loan is a "defective obligation"
within the meaning of Section 860G(a)(4)(B)(ii) of the Code), and any
substitution must be accompanied by an Officers' Certificate delivered to the
Trustee, certifying that such Replacement Mortgage Loan conforms to the
requirements of this Agreement, and by an Opinion of Counsel to the effect
that such substitution will not cause the Trust Fund to fail to qualify as a
REMIC and will not result in a prohibited transaction tax, which Opinion of
Counsel shall be paid for by the Applicable Seller or the Servicer, as
applicable. Notwithstanding the foregoing, if any such breach would cause a
Mortgage Loan to be other than a "qualified mortgage loan" as described in
Section 860G(a)(3) of the Code, any substitution shall occur within 90 days of
the discovery of the breach.
As to any Replacement Mortgage Loan or Loans, the Applicable Seller
or the Servicer, as applicable, shall deliver to the Trustee for such
Replacement Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
related assignment of the Mortgage, and such other documents and agreements as
are required by Section 2.01, with the Mortgage Note endorsed in blank or to
the Trustee for the benefit of the Holders of the Mortgage-Backed Pass-Through
Certificates, Series 2000-WM2. No substitution will be made in any calendar
month after the Determination Date for such month. Monthly payments due with
respect to Replacement Mortgage Loans in the month of substitution shall not
be part of the Trust Fund and will be remitted by the Servicer to the
Applicable Seller or the Servicer, as applicable, on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the Monthly Payment due on such Deleted
Mortgage Loan for such month and thereafter the Applicable Seller or the
Servicer, as applicable, shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan.
Upon such substitution, the Servicer shall amend or cause to be
amended the Mortgage Loan Schedule to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans.
Upon such substitution, the Replacement Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects and the Applicable
Seller or the Servicer, as applicable, shall be deemed to have made, as of the
date of substitution, with respect to the Replacement Mortgage Loan or Loans,
the representations and warranties pertaining to the Mortgage Loans contained
in Section 2.04 hereof. Upon receipt of the Trustee Mortgage File pertaining
to any Replacement Mortgage Loans, the Trustee shall release the Trustee
Mortgage File held for the benefit of the Certificateholders relating to such
Deleted Mortgage Loan to the Applicable Seller or the Servicer, as applicable,
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be necessary to vest title (to the extent
that such title was transferred to the Trustee) in the Applicable Seller or
the Servicer, as applicable, or its designee to any Deleted Mortgage Loan
substituted for pursuant to this Section 2.04.
In any month in which a Seller or the Servicer substitutes one or
more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the
Servicer will determine the amount (if any) by which the aggregate Principal
Balance of all such Replacement Mortgage Loans as of the date of substitution
is less than the aggregate Principal Balance of all such Deleted Mortgage
Loans (in each case after application of scheduled principal portion of the
monthly payments received in the month of substitution). The amount of such
shortage (the "Substitution Adjustment Amount") shall be deposited into the
Custodial Account by the Applicable Seller or the Servicer, as applicable, in
the month of substitution pursuant to Section 3.07, without any reimbursement
thereof. The Servicer shall give notice in writing to the Trustee of such
event, which notice shall be accompanied by an Officers' Certificate as to the
calculation of such shortage.
In the event that a Seller or the Servicer shall have repurchased a
Mortgage Loan, upon receipt by the Trustee of written notification of the
deposit of the Purchase Price, the Trustee shall release the related Trustee
Mortgage File held for the benefit of the Certificateholders to the Applicable
Seller or the Servicer, as applicable, and the Trustee shall execute and
deliver the related instruments of transfer or assignment, in each case
without recourse, as shall be necessary to transfer title (to the extent that
such title was transferred to the Trustee) from the Trustee for the benefit of
the Certificateholders and vest title in the Applicable Seller or the
Servicer, as applicable, or the designee thereof, as the case may be, to any
Mortgage Loan purchased pursuant to this Section 2.04. It is understood and
agreed that the obligation under this Agreement of any Person to repurchase or
substitute any Mortgage Loan as to which such breach has occurred and is
continuing shall constitute the sole and exclusive remedy respecting such
breach available to Certificateholders or the Trustee on their behalf.
All expenses incidental to any substitution or repurchase of a
Mortgage Loan under this Section shall be borne by the party repurchasing or
substituting such Mortgage Loan.
SECTION 2.05 Issuance of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans
together with the assignment to it of all other assets included in the Trust
Fund, receipt of which (subject to the review and certifications provided for
in Section 2.02) is hereby acknowledged. Concurrently with such assignment and
delivery and in exchange therefor, the Trustee, pursuant to the written
request of the Depositor executed by an officer of the Depositor, has executed
the Class A, Class M-1, Class M-2, Class M-3, Class M-1, Class M-2, Class M-3,
Class P, Class S and Class R Certificates and caused them to be authenticated
and delivered to or upon the order of the Depositor in authorized
denominations which evidence ownership of the Trust Fund. The rights of the
Holders of such Certificates to receive distributions from the Trust Fund and
all ownership interests of the Holders of the Class A, Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2, Class B-3, Class P, Class S and Class R
Certificates in such distributions shall be as set forth in this Agreement.
SECTION 2.06 REMIC Provisions.
(a) The Depositor hereby elects and authorizes the Trustee to treat
the Trust Fund as a REMIC (the "REMIC") under the Code and, if necessary,
under applicable state law. Each such election will be made on Form 1066 or
other appropriate federal tax or information return (including Form 8811) or
any appropriate state return (x) for the taxable year ending on the last day
of the calendar year in which the Certificates are issued and (y) for the
taxable year ending on the last day of the calendar year in which Certificates
are first sold to a third party. The Delivery Date is hereby designated as the
"startup day" of the REMIC within the meaning of Section 860G(a)(9) of the
Code. The "regular interests" (within the meaning of Section 860G of the Code)
in the REMIC shall consist of the Class A, Class M, Class B, Class P and Class
S Certificates and the "residual interest" in the REMIC shall consist of the
Class R Certificates. The Depositor and the Trustee shall not permit the
creation of any "interests" (within the meaning of Section 860G of the Code)
in the REMIC other than the Class A Certificates, Class P Certificates, Class
S Certificates, Class M, Class B and Class R Certificates, respectively.
(b) The Trustee on behalf of the Holders of the Class R Certificates,
shall act as agent for the Class R Certificateholder as the "tax matters
person" (within the meaning of the REMIC Provisions) for the REMIC, in the
manner provided under Treasury regulations section 1.860F-4(d) and temporary
Treasury regulations section 301.6231(a)(7)-1T. By its acceptance of a Class R
Certificate, each Holder thereof shall have agreed to such appointment and
shall have consented to the appointment of the Trustee as its agent to act on
behalf of the REMIC pursuant to the specific duties outlined herein.
(c) A Holder of the Class R Certificates, by the purchase of such
Certificates, shall be deemed to have agreed to timely pay, upon demand by the
Trustee, the amount of any minimum California state franchise taxes due with
respect to the REMIC, respectively, under Sections 23151(a) and 23153(a) of
the California Revenue and Taxation Code. Notwithstanding the foregoing, the
Trustee shall be authorized to retain the amount of such tax from amounts
otherwise distributable to such Holder in the event such Holder does not
promptly pay such amount upon demand by the Trustee. In the event that any
other federal, state or local tax is imposed, including without limitation
taxes imposed on a "prohibited transaction" of a REMIC as defined in Section
860F of the Code, such tax shall be charged against amounts otherwise
available for distribution to the applicable Holder of a Class R Certificate
and then against amounts otherwise available for distribution to the Holders
of Regular Certificates in accordance with the provisions set forth in
Sections 4.02 and 4.03, respectively. The Trustee shall promptly deposit in
the Certificate Account any amount of "prohibited transaction" tax that
results from a breach of the Trustee's duties under this Agreement. The
Servicer shall promptly deposit in the Certificate Account any amount of
"prohibited transaction" tax that results from a breach of the Servicer's
duties under this Agreement.
(d) The Trustee shall act as attorney-in-fact and as agent on behalf
of the tax matters person of the REMIC and in such capacity the Trustee shall:
(i) prepare, sign and file, or cause to be prepared, signed and filed, federal
and state tax returns using a calendar year as the taxable year for the REMIC
when and as required by the REMIC Provisions and other applicable federal
income tax laws as the direct representative of the REMIC in compliance with
the Code and shall provide copies of such returns as required by the Code;
(ii) make an election, on behalf of the REMIC, to be treated as a REMIC on the
federal tax return of such REMIC for its first taxable year, in accordance
with the REMIC Provisions; and (iii) prepare and forward, or cause to be
prepared and forwarded, to the Certificateholders and to any governmental
taxing authority all information reports as and when required to be provided
to them in accordance with the REMIC Provisions. The expenses of preparing and
filing such returns shall be borne by the Trustee. The Depositor and Servicer
shall provide on a prompt and timely basis to the Trustee or its designee such
information with respect to the REMIC as is in their possession and reasonably
required or requested by the Trustee to enable it to perform its obligations
under this subsection.
In its capacity as attorney-in-fact and as agent on behalf of the tax
matters person, the Trustee shall also: (A) act on behalf of the REMIC in
relation to any tax matter or controversy involving the Trust Fund, (B)
represent the Trust Fund in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority with respect
thereto and (C) cause to be paid solely from the sources provided herein the
amount of any taxes imposed on the REMIC when and as the same shall be due and
payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Trustee from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings).
(e) The Trustee shall provide (i) to any transferor of a Class R
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
permitted transferee, (ii) to the Trustee and the Trustee shall forward to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of the REMIC.
(f) The Trustee, the Depositor and the Holder of the Class R
Certificates shall take any action or cause the Trust Fund to take any action
necessary to create or maintain the status of each of the REMIC as a REMIC
under the REMIC Provisions and shall assist each other as necessary to create
or maintain such status. Except for actions expressly permitted under the
terms of this Agreement, neither the Trustee nor the Holder of the Class R
Certificates shall take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause the Trust Fund to take) any action that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of the REMIC as a REMIC or (ii) result in the imposition
of a tax upon the REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code) (either such event, an
"Adverse REMIC Event") unless the Trustee has received an Opinion of Counsel
(at the expense of the party seeking to take such action) to the effect that
the contemplated action will not endanger such status or result in the
imposition of such a tax.
The Trustee shall not take or fail to take any action (whether or not
authorized hereunder) as to which the Servicer or Depositor has advised it in
writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event could occur with respect to such action. In addition,
prior to taking any action with respect to the REMIC or their assets, or
causing the REMIC to take any action, which is not expressly permitted under
the terms of this Agreement, the Trustee will consult with the Servicer and
Depositor or their designees, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to the REMIC and the
Trustee shall not take any such action or cause the REMIC to take any such
action as to which the Servicer or Depositor has advised it in writing that an
Adverse REMIC Event could occur.
In addition, prior to taking any action with respect to the REMIC or
the assets therein, or causing the REMIC to take any action, which is not
expressly permitted under the terms of this Agreement, the Holder of the Class
R Certificates will consult with the Trustee or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur
with respect to the REMIC, and no such Person shall take any action or cause
the Trust Fund to take any such action as to which the Trustee has advised it
in writing that an Adverse REMIC Event could occur. The Trustee may consult
with counsel to make such written advice, and the cost of same shall be borne
by the party seeking to take action not permitted by this Agreement.
At all times as may be required by the Code, the Servicer will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of the REMIC as
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions"
of the REMIC, as defined in Section 860F(a)(2) of the Code, on "net income
from foreclosure property" of the REMIC, as defined in Section 860G(c) of the
Code, on any contributions to the REMIC after the Startup Day therefor
pursuant to Section 860G(d) of the Code, or any other tax is imposed by the
Code or any applicable provisions of state or local tax laws, such tax shall
be charged (i) to the Servicer, if such tax arises out of or results from a
breach by the Servicer of any of its obligations under this Agreement or if
the Servicer has in its sole discretion determined to indemnify the Trust Fund
against such tax, (ii) to the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article II,
or (iii) otherwise against amounts on deposit in the Custodial Account as
provided by Section 3.09 and on the Distribution Date(s) following such
reimbursement the aggregate of such taxes shall be allocated in reduction of
the Interest Distribution Amount on each Class entitled thereto in the same
manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee and the Servicer shall, for federal income tax
purposes, maintain books and records with respect to the REMIC on a calendar
year and on an accrual basis or as otherwise may be required by the REMIC
Provisions.
(i) Following the Startup Day, neither the Servicer nor the Trustee
shall accept any contributions of assets to the REMIC unless (subject to
2.06(f)) the Servicer and the Trustee shall have received an Opinion of
Counsel (at the expense of the party seeking to make such contribution) to the
effect that the inclusion of such assets in the REMIC will not cause the REMIC
to fail to qualify as a REMIC at any time that any Certificates are
outstanding, or subject the REMIC to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(j) Neither the Servicer nor the Trustee shall (subject to Section
2.06(f)) enter into any arrangement by which the REMIC will receive a fee or
other compensation for services nor permit such REMIC to receive any income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3)
of the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(k) Within 30 days after the Delivery Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for the REMIC.
(l) Neither the Trustee nor the Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed
in lieu of foreclosure, (ii) the bankruptcy of the REMIC, (iii) the
termination of the REMIC pursuant to Article X of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement)
nor acquire any assets for the REMIC, nor sell or dispose of any investments
in the Custodial Account or the Certificate Account for gain nor accept any
contributions to the REMIC after the Delivery Date (a) unless it has received
an Opinion of Counsel that such sale, disposition, substitution or acquisition
will not affect adversely the status of the REMIC as a REMIC or (b) unless the
Servicer has determined in its sole discretion to indemnify the Trust Fund
against such tax.
(m) In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided to the Trustee,
within ten days after the Delivery Date, all information or data that the
Trustee determines to be relevant for tax purposes to the valuations and
offering prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flows of the Certificates and
the Mortgage Loans and the Trustee shall be entitled to rely upon any and all
such information and data in the performance of its duties set forth herein.
Thereafter, the Servicer shall provide, promptly upon request therefor, any
such additional information or data that the Trustee may from time to time
reasonably request in order to enable the Trustee to perform its duties as set
forth herein and the Trustee shall be entitled to rely upon any and all such
information and data in the performance of its duties set forth herein. The
Depositor shall indemnify the Trustee and hold its harmless for any loss,
liability, damage, claim or expense of the Trustee arising from any failure of
the Depositor to provide, or to cause to be provided, accurate information or
data to the Trustee on a timely basis. The Servicer shall indemnify the
Trustee and hold it harmless for any loss, liability, damage, claim or expense
of the Trustee arising from any failure of the Servicer to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis. The indemnification provisions hereunder shall survive the termination
of this Agreement and shall extend to any co-trustee appointed pursuant to
this Agreement.
SECTION 2.07 Representations and Warranties of the Servicer.
As of the Delivery Date, the Servicer hereby makes to the Depositor
and the Trustee the representations and warranties below.
(i) The Servicer is a federally chartered savings association, duly
organized, validly existing and in good standing under the laws of the
United States, has all licenses necessary to carry on its business as now
being conducted and is licensed, qualified and in good standing in the
states where the Mortgaged Properties are located, if the laws of such
states require licensing or qualification in order to conduct business of
the type conducted by the Servicer and to the extent necessary to ensure
the servicing of each Mortgage Loan in accordance with this Agreement.
The Servicer has the corporate power and authority to enter into, execute
and deliver this Agreement and all documents and instruments executed and
delivered pursuant hereto and to perform its obligations in accordance
therewith. The execution, delivery and performance of this Agreement by
the Servicer and the consummation of the transactions contemplated hereby
have been duly and validly authorized. This Agreement evidences the
valid, binding and enforceable obligations of the Servicer, except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
receivership, conservatorship, moratorium and similar laws affecting
creditors rights generally. All requisite corporate action has been taken
by the Servicer to make this Agreement valid and binding upon the
Servicer in accordance with its terms.
(ii) No consent, approval, authorization, or order of any court or
governmental agency or body relating to the transactions contemplated by
this Agreement is required as to the Servicer or, if required, such
consent, approval, authorization, or order has been or will, prior to the
date of this Agreement, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement, including without limitation the fulfillment of or compliance
with the terms and conditions of this Agreement, are in the ordinary
course of business of the Servicer and will not (i) result in the breach
of any term or provision of the charter or by-laws of the Servicer, (ii)
result in the breach of any term or provision of, or conflict with or
constitute a default under, or result in the acceleration of any
obligation under, any material agreement, indenture, loan or credit
agreement, or other instrument to which the Servicer or its property is
subject or (iii) result in the violation of any law, rule, regulation,
order, judgment, or decree to which the Servicer or its property is
subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best of the Servicer's knowledge, threatened against the
Servicer which, either in any one instance or in the aggregate, is in the
Servicer's judgment, likely to result in any material impairment of the
right or ability of the Servicer to carry on its business substantially
as now conducted, or which would adversely affect the validity of this
Agreement, or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein or therein, or which
would be likely to impair materially the ability of the Servicer to
perform its obligations hereunder or thereunder.
(v) The Servicer is an approved servicer of mortgage loans for ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇ Mac, in good standing. No event has occurred, including
but not limited to a change in insurance coverage, which would make the
Servicer unable to comply with ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac eligibility
requirements or which would require notification to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01 Servicing Standard.
For and on behalf of the Trustee and the Certificateholders, the
Servicer shall service and administer the Mortgage Loans in accordance with
Acceptable Servicing Procedures except as otherwise expressly provided in this
Agreement. In connection with such servicing and administration, the Servicer
shall have full power and authority, acting alone and/or through any
Sub-Servicer as provided in Section 3.02 hereof, to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof (a) to execute and deliver, on behalf
of the Certificateholders and the Trustee, customary consents or waivers and
other instruments and documents (including, without limitation, estoppel
certificates), (b) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the
manner provided in this Agreement), (c) to collect any Insurance Proceeds and
Liquidation Proceeds, (d) to consent to any subordinate financings to be
secured by any Mortgaged Property to the extent that such consent is required
pursuant to the terms of the related Mortgage, (e) to consent to the
application of any proceeds of insurance policies or condemnation awards to
the restoration of the applicable Mortgaged Property or otherwise, and (f)
subject to the provisions of Section 3.07 and 3.13, to effectuate foreclosure
or other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided, however, that the Servicer shall take no action that
is materially inconsistent with or materially prejudices the interest of the
Trustee or the Certificateholders in any Mortgage Loan or the rights and
interest of the Depositor, the Trustee or the Certificateholders under the
terms of this Agreement unless such action is specifically called for by the
terms hereof.
Without limiting the generality of the foregoing, but subject to the
terms hereof, the Servicer, in its own name or in the name of the Depositor
and the Trustee, is hereby authorized and empowered by the Depositor and the
Trustee, when the Servicer believes it appropriate in its best judgment, to
execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of modification,
satisfaction, cancellation or assignment, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans, and with respect to the Mortgaged Properties held for the benefit of
the Certificateholders. The Servicer shall promptly notify the Trustee of any
such execution and delivery. The Depositor and the Trustee for the benefit of
the Certificateholders shall furnish the Servicer with any powers of attorney
and other documents necessary or appropriate to enable the Servicer to service
and administer the Mortgage Loans.
In accordance with the standards of the second preceding paragraph,
the Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the timely payment of taxes and assessments on each
Mortgaged Property or any related unpaid insurance premiums that are not
timely paid by the Mortgagors prior to any such time as a Mortgage Loan is in
foreclosure; provided, however, that the Servicer shall be required to advance
only to the extent that such advances, in the good faith judgment of the
Servicer, will be recoverable by the Servicer out of Insurance Proceeds,
Liquidation Proceeds (net of Liquidation Expenses) or otherwise; and provided
further, that such payments shall be advanced when the tax, premium or other
cost for which such payment is intended is due. Any such advances shall be
reimbursable in the first instance from related collections from the related
Mortgagors pursuant to Section 3.07 hereof, and further as Liquidation
Expenses as provided in Section 3.13 hereof and may be withdrawn from the
Custodial Account pursuant to Section 3.09 hereof. All costs incurred by the
Servicer or by the related Sub-Servicer in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance
premiums shall not, for the purpose of calculating monthly distributions to
the Certificateholders, be added to the Principal Balance under the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit.
Notwithstanding anything in this Agreement to the contrary, the
Servicer shall not (unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, imminent)
permit any modification with respect to any Mortgage Loan (i) that would
change the Net Mortgage Rate or, reduce or increase the principal balance
(except for reductions resulting from actual payments of principal) or (ii)
that would both constitute a sale or exchange of the Mortgage Loan within the
meaning of Section 1001 of the Code (including any proposed, temporary, or
final regulations promulgated thereunder) (other than in connection with a
proposed conveyance or assumption of the Mortgage Loan that is a Principal
Prepayment made (or treated as made) by the Mortgagor of the entire principal
balance of a Mortgage Loan) and cause the Trust Fund to fail to qualify as a
REMIC under the Code.
SECTION 3.02 Sub-Servicing Agreements between Servicer
and Sub-Servicers; Enforcement of the
Obligations of Sub-Servicers.
(a) The Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers for the servicing and administration of all or part of the
Mortgage Loans. References in this Agreement to actions taken or to be taken
by the Servicer in servicing the Mortgage Loans include actions taken or to be
taken by a Sub-Servicer on behalf of the Servicer. Each Sub-Servicing
Agreement will be on terms consistent with this Agreement. The Servicer shall
give the Trustee prompt written notice of the appointment of any Sub-Servicer.
For purposes of this Agreement, the receipt by a Sub-Servicer of any amount
with respect to a Mortgage Loan (other than amounts representing servicing
compensation or reimbursement for an advance) shall be treated as the receipt
by the Servicer of the amount. The Sub-Servicer shall deposit all collections
in an Eligible Account.
(b) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Depositor, the Trustee and the Certificateholders, shall
supervise, administer, monitor and oversee the servicing of the Mortgage Loans
that are not serviced by it directly, and shall enforce the obligations of
each Sub-Servicer under the related Sub-Servicing Agreement. Such enforcement
shall include, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements, as appropriate, and the pursuit of
other appropriate remedies, and shall be in such form and carried out to such
an extent and at such time as the Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Servicer shall pay the costs of such enforcement at its own expense, but shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a specific recovery
of costs, expenses or attorneys fees against the party against whom such
enforcement is directed. The Servicer shall not waive any event of default by
a Sub-Servicer under a Sub-Servicing Agreement which is a failure to remit any
payment required to be made by such Sub-Servicer that would result in an Event
of Default under this Agreement.
(c) The Servicer may terminate any Sub-Servicing Agreement in
accordance with its terms and without any limitation by virtue of this
Agreement. If the Servicer is no longer the Servicer under this Agreement the
Servicer shall, if so directed by the Trustee or the successor Servicer,
terminate each Sub-Servicing Agreement that may have been entered into, and
the Trustee and the successor servicer shall not be considered to have assumed
any of the Servicer's interest in any Sub-Servicing Agreements, or to have
replaced the Servicer as a party to any Sub-Servicing Agreement.
SECTION 3.03 Termination of the Rights of Sub-Servicers.
If the Servicer terminates the rights of a Sub-Servicer under any
Sub-Servicing Agreement, the Servicer shall service the Mortgage Loans
directly pursuant to and in accordance with the terms of this Agreement, or at
the Servicer's election, enter into a substitute servicing agreement with
another mortgage loan servicing company and reasonably acceptable to the
Servicer under which such mortgage loan servicing company shall assume,
satisfy, perform and carry out all liabilities, duties, responsibilities and
obligations that are to be, or otherwise were to have been, satisfied,
performed and carried out by the terminated Sub-Servicer, regardless of
whether such liabilities, duties, responsibilities or obligations shall have
accrued before or after the termination of the rights of such Sub-Servicer;
provided, however, that any such substitute servicer and any such substitute
servicing shall satisfy the requirements of Sections 3.01 and 3.02. If the
Servicer does not elect to enter into a substitute servicing agreement with a
successor servicer, the Servicer shall nevertheless service the Mortgage Loans
directly pursuant to and in accordance with the terms of this Agreement, until
a substitute Sub-Servicer has been appointed and designated and a substitute
servicing agreement has been entered into by the Servicer and such substitute
Sub-Servicer. The Servicer shall give notice to the Trustee and the Rating
Agencies of any termination of a Sub-Servicer and any appointment or
designation of a substitute Sub-Servicer.
SECTION 3.04 Liability of the Servicer.
Notwithstanding the provisions of any Sub-Servicing Agreement, any of
the provisions of this Agreement relating to agreements or arrangements
between the Servicer or a Sub-Servicer or reference to actions taken through a
Sub-Servicer or otherwise, the Servicer shall remain obligated and liable to
the Depositor, the Trustee and the Certificateholders for the servicing and
administering of the Mortgage Loans included in the Trust Fund in accordance
with (and subject to the limitations contained herein) the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Sub-Servicing Agreements or agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the
same terms and conditions as if the Servicer alone were servicing and
administering the Mortgage Loans. The Servicer shall be entitled to enter into
any agreement with a Sub-Servicer for indemnification of the Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
SECTION 3.05 Rights of the Depositor, the Sellers and the
Trustee in Respect of the Servicer.
The Servicer shall afford the Depositor, the Sellers and the Trustee,
without charge but only upon reasonable notice and during normal business
hours, access to all records and documentation in the Servicer's possession
regarding the Mortgage Loans and to all accounts, insurance policies and other
matters in the Servicer's possession relating to this Agreement and access to
officers of the Servicer responsible for its obligations hereunder. The
Depositor may, but is not obligated to, enforce the obligations of the
Servicer hereunder. The Depositor shall not have any responsibility or
liability for any action or failure to act by the Servicer and is not
obligated to supervise the performance of the Servicer hereunder or otherwise.
SECTION 3.06 Trustee to Act as Servicer.
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of an Event of Default), the Trustee
shall thereupon assume all of the rights and obligations of the Servicer
hereunder arising thereafter (except that the Trustee shall not be liable for
any defaults by the Servicer in the performance of its duties under this
Agreement or for losses of the Servicer pursuant to Section 3.07 hereof,
obligated to make Monthly Advances if prohibited by applicable law, nor
obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder as substitute Servicer, including pursuant to Section 2.04 hereof
and except that the Trustee makes no representations and warranties hereunder,
including pursuant to Section 2.04 hereof). If the Servicer shall for any
reason no longer be the Servicer (including by reason of any Event of
Default), the Trustee (or any other successor servicer) shall succeed to any
rights and obligations of the Servicer under any Sub-Servicing Agreement and
shall be deemed to have assumed the Servicer's interest therein; provided,
however, that the Servicer shall not thereby be relieved of any liability or
obligations under this Agreement, any Sub-Servicing Agreement or substitute
servicing agreement arising prior to the date of such succession. All costs
incurred by the Trustee in the transfer of servicing obligations to the
Trustee or its designee shall be borne by the Servicer.
The Servicer shall, upon request of the Trustee, but at the expense
of the Servicer, deliver to the assuming party all documents and records
relating to the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of servicing to the
assuming party.
SECTION 3.07 Collection of Mortgage Loan Payments.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans and shall, to
the extent such procedures shall be consistent with this Agreement, follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans held in its own portfolio and serviced by the
Servicer. Consistent with the foregoing, the Servicer may in its discretion
(a) waive any late payment charge or any prepayment charge or penalty interest
in connection with the prepayment of a Mortgage Loan and (b) only upon
determining that the coverage of such Mortgage Loan by any related Primary
Mortgage Insurance Policy or any other insurance policy will not be adversely
affected, extend the due dates for payments due on a Mortgage Note for a
period not greater than 270 days, but in no event beyond the maturity date of
any Mortgage Loan. In the event of any such arrangement described in clause
(b) of the preceding sentence, the Servicer shall continue to make timely
Monthly Advances on the related Mortgage Loan, pursuant to and in accordance
with Section 5.01 of this Agreement (but subject to any limitations contained
therein), during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements.
The Servicer shall establish and maintain on behalf of the
Certificateholders, the Custodial Account. The Servicer shall deposit into the
Custodial Account, upon receipt (and in all events by not later than the end
of the second Business Day following receipt thereof) and on a daily basis,
deposit in the Custodial Account and retain therein, the following payments
and collections received or made by the Servicer subsequent to the Cut-off
Date (other than in respect of principal of and interest and any other
payments on the Mortgage Loans due on or before the Cut-off Date) (except that
any Monthly Advance shall be deposited on or prior to the Servicer Advance
Date):
(i) the principal portion of all Monthly Payments on the Mortgage
Loans, including all Principal Payments in Part and Principal Payments in
Full;
(ii) the interest portion of all Monthly Payments on the Mortgage
Loans less the Servicing Fee and interest accruing at the Retained Yield
Rate;
(iii) ____ all Insurance Proceeds, Liquidation Proceeds and
Condemnation Proceeds, other than proceeds to be applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Servicer's normal servicing procedures,
net of Liquidation Expenses;
(iv) all Monthly Advances made by the Servicer pursuant to Section
5.01 hereof and any payments of the Compensating Interest Payment
pursuant to Section 3.16;
(v) ______ any amount of any losses required to be deposited by the
Servicer pursuant to the second succeeding paragraph of this Section 3.07
in connection with any losses on Eligible Investments;
(vi) any amounts required to be deposited by the Servicer pursuant to
Section 3.11 hereof;
(vii) ____ all proceeds of any purchase by a Seller or the Servicer,
as the case may be, of any Mortgage Loans or property acquired in respect
of the Mortgage Loans pursuant to Sections 2.01, 2.02, 2.04 or 10.01
hereof and all amounts required to be deposited in connection with the
substitution of Replacement Mortgage Loans pursuant to Sections 2.01,
2.02 or 2.04 hereof; and
(viii) any other amounts required to be deposited in the Custodial
Account pursuant to this Agreement including, without limitation, the
amounts required to be deposited therein pursuant to Section 3.13 hereof.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of prepayment penalties,
fees or premiums, late payment charges, assumption fees and any excess
interest charges payable by the Mortgagor by virtue of any default or other
non-compliance by the Mortgagor with the terms of the Mortgage or any other
instrument or document executed in connection therewith or otherwise, if
collected, need not be remitted or deposited into the Custodial Account by the
Servicer. In the event that the Servicer shall remit or deposit any amount not
required to be remitted or deposited and not otherwise subject to withdrawal
pursuant to Section 3.09 hereof, it may at any time withdraw such amount from
the Custodial Account on the following Distribution Date, any provision herein
to the contrary notwithstanding. Such direction may be accomplished by
delivering an Officers' Certificate to the Trustee which describes the amounts
deposited in error in the Custodial Account. All funds deposited in the
Custodial Account shall be held by the Servicer in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.09. In no event shall the Trustee incur
liability for withdrawals from the Custodial Account at the direction of the
Servicer.
The Servicer shall invest the funds in the Custodial Account in
Eligible Investments, which shall mature not later than the 18th day of each
calendar month (or the next succeeding Business if the 18th is not a Business
Day) (except that if such Eligible Investment is an obligation of the
institution that maintains the Custodial Account, then such Eligible
Investment shall mature not later than such Distribution Date). All such
Eligible Investments shall be made in the name of the Trustee for the benefit
of the Certificateholders (in its capacity as such) or its nominee. All income
and gain net of any losses realized from any such investment shall be for the
benefit of the Servicer and shall be subject to withdrawal at its direction
from time to time. The amount of any losses net of any gains not paid to the
Servicer incurred in respect of any such investments shall be remitted to the
Trustee or deposited in the Custodial Account out of the Servicer's own funds
promptly following the date that same are realized.
The Servicer shall promptly give notice to the Trustee, the Rating
Agencies and the Depositor of the location of the Custodial Account and of any
change thereof.
SECTION 3.08 Collection of Taxes, Assessments and
Similar Items; Escrow Accounts.
The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts (collectively, the "Escrow
Account"), in the form of time deposit or demand accounts, which may be
interest bearing, entitled "Washington Mutual Bank, FA, in trust for U.S. Bank
National Association, as trustee, and certain Mortgagors." The Escrow Account
shall be an Eligible Account and shall be established with an institution that
is a Qualified Depository.
The Servicer shall, upon receipt (and in all events by not
later than the end of the second Business Day following receipt thereof, or
sooner if required by applicable law) and on a daily basis (and in all events
by not later than the end of the second Business Day following receipt
thereof, or sooner if required by applicable law), deposit in the Escrow
Account and retain therein: (i) all Escrow Payments collected on account of
the Mortgage Loans for the purpose of effecting timely payment of any such
items as required under the terms of this Agreement and (ii) all amounts
representing proceeds of any hazard insurance policy which are to be applied
to the restoration or repair of any Mortgaged Property. The Servicer shall
make withdrawals from the Escrow Account only in accordance with this Section
3.08. The Servicer shall be entitled to retain any interest earned on funds
deposited in the Escrow Account other than interest on escrowed funds required
by law to be paid to the Mortgagor and, to the extent required by law, the
Servicer shall pay interest on escrowed funds to the Mortgagor notwithstanding
that the Escrow Account maintained by the Servicer may not bear interest or
that the interest earned on such escrowed funds is insufficient for such
purpose without right of reimbursement therefor.
Withdrawals from the Escrow Account maintained by the Servicer may be
made by the Servicer only (i) to effect timely payments of taxes, assessments,
water rates, insurance premiums, fire and hazard insurance premiums or other
items constituting Escrow Payments for the related Mortgage, (ii) to reimburse
the Servicer for any Servicing Advance or Monthly Advance made by the Servicer
pursuant to Sections 3.01, 3.08 and 5.01 with respect to a related Mortgage
Loan, (iii) to refund to any Mortgagor any funds found to be in excess of the
amounts required under the terms of the related Mortgage Loan, (iv) for
transfer to the Custodial Account in accordance with the terms of this
Agreement, (v) for application to restoration or repair of the Mortgaged
Property, (vi) to pay to the Mortgagor, to the extent required by Applicable
Requirements, interest on the funds deposited in the Escrow Account, (vii) to
pay to itself any interest earned on funds deposited in the Escrow Account
(and not required to be paid to the Mortgagor), such withdrawal to be made
monthly not later than the Business Day immediately preceding the Distribution
Date, (viii) to remove funds inadvertently placed in the Escrow Account by the
Servicer or (ix) to clear and terminate the Escrow Account upon the
termination of this Agreement.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of property taxes, assessments and
other charges, which are or may become a lien upon the Mortgaged Property, the
status of Primary Mortgage Insurance premiums, if any, and the status of fire
and hazard insurance coverage and flood insurance, all as required hereunder.
If a Mortgage Loan requires Escrow Payments, the Servicer shall obtain, from
time to time, all bills for the payment of such charges (including renewal
premiums) and shall effect payment thereof prior to the applicable penalty or
termination date in a manner consistent with Acceptable Servicing Procedures,
employing for such purpose deposits of the Mortgagor in the Escrow Account
which shall have been estimated and accumulated by the Servicer in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage. If a
Mortgage Loan does not require Escrow Payments, or if there are insufficient
funds in the related Escrow Account, the Servicer shall cause all such bills
to be paid on a timely basis and, subject to Section 3.01, shall from its own
funds (if necessary) make a Servicing Advance to make timely payment of all
such bills. The Servicer shall monitor the payment status of such charges
(including renewal premiums) by the related Mortgagor. The Servicer shall
effect payment of such charges in a manner consistent with Acceptable
Servicing Procedures and, in all events, prior to the foreclosure of any lien
against the Mortgaged Property resulting from non-payment of such property
taxes, assessments and other charges and prior to the termination of any such
insurance coverage.
SECTION 3.09 Permitted Withdrawals from the Custodial Account.
The Servicer may (and, with respect to clauses (e) and (g) below,
shall), make, to the extent required or authorized hereunder, withdrawals from
the Custodial Account for the following purposes:
(a) to pay to the Servicer as additional servicing compensation,
earnings on or investment income with respect to funds in the Custodial
Account credited to the Custodial Account;
(b) to reimburse the Servicer for advances made pursuant to Sections
3.01, 3.08, 3.10, 3.11, 3.13, 5.01 and 5.02 hereof, such right of
reimbursement pursuant to this subclause (b) being limited to amounts
received in respect of the particular Mortgage Loan (including, for this
purpose, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
amounts representing proceeds of other insurance policies, if any,
covering the related Mortgaged Property, rental and other income from REO
Property and proceeds of any purchase or repurchase of the related
Mortgage Loan);
(c) to reimburse the Servicer for any Nonrecoverable Advances;
(d) to reimburse the Servicer from Liquidation Proceeds for
Liquidation Expenses and, to the extent that Liquidation Proceeds after
such reimbursement are in excess of the Principal Balance of the related
Mortgage Loan together with accrued and unpaid interest thereon at a rate
equal to the sum of the Net Mortgage Rate and the Trustee Fee Rate, to
pay out of such excess the amount of any unpaid servicing compensation
with respect to the related Mortgage Loan to the Servicer, which may
include any unpaid servicing compensation to the Sub-Servicer (for
disbursement in accordance with Section 3.16 hereof);
(e) to pay to a Seller or the Servicer, as the case may be, with
respect to each Mortgage Loan or property acquired in respect thereof
that has been purchased pursuant to Sections 2.01, 2.02 or 2.04 hereof
all amounts received thereon and not taken into account in determining
the Purchase Price of such repurchased Mortgage Loan;
(f) to reimburse the Servicer or the Depositor for expenses incurred
by and reimbursable to the Servicer or the Depositor pursuant to Section
7.03 hereof;
(g) to withdraw any amount deposited in the Custodial Account
pursuant to Section 3.07 and not required to be deposited therein,
including any Retained Yield; and
(h) to clear and terminate the Custodial Account upon termination of
this Agreement pursuant to Section 10.01 hereof.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Custodial Account pursuant to such subclauses (a) through
(f). The Servicer may apply Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds received with respect to a particular Mortgage Loan to
reimbursements permitted by clauses (b), (c) and (d) above in any order as the
Servicer deems appropriate.
On or prior to the 18th day of each calendar month (or the next
succeeding Business Day if the 18th is not a Business Day) after payment of
items (a) through (h) above, the Servicer shall withdraw from the Custodial
Account and remit to the Trustee, in immediately available funds, and the
Trustee, upon receipt thereof, shall deposit in the Certificate Account, an
amount equal to the sum of the Available Distribution Amount for such
Distribution Date.
SECTION 3.10 Maintenance of Primary Mortgage Insurance
Policies; Collections Thereunder.
The Servicer shall maintain in full force and effect any Primary
Mortgage Insurance Policy covering a Mortgage Loan serviced by the Servicer.
The Servicer shall cause the premium for any such Primary Mortgage Insurance
Policy to be paid on a timely basis and, subject to Section 3.01, shall from
its own funds, if necessary, make a Servicing Advance to pay the premium on a
timely basis. The Servicer will not cancel or refuse to renew any such Primary
Mortgage Insurance Policy in effect on a Closing Date. The Servicer shall not
take any action or fail to take any action which would result in non-coverage
under any applicable Primary Mortgage Insurance Policy of any loss which, but
for the actions of the Servicer, would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to be
entered into pursuant to Section 3.12, the Servicer shall promptly notify the
insurer under the related Primary Mortgage Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under such Primary Mortgage
Insurance Policy. If such Primary Mortgage Insurance Policy is terminated as a
result of such assumption or substitution of liability, the Servicer shall
obtain a replacement Primary Mortgage Insurance Policy as provided above.
As part of its activities as servicer of the Mortgage Loans, the
Servicer agrees to prepare and present, on behalf of itself and the Trustee,
claims under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms thereof and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan.
Pursuant to Section 3.07 hereof, any amounts collected by the
Servicer under any Primary Mortgage Insurance Policy shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 3.09 hereof.
SECTION 3.11 Maintenance of Hazard Insurance and Errors
and Omissions and Fidelity Coverage.
(a) The Servicer shall cause to be maintained for each Mortgage Loan
serviced by it fire and hazard insurance with extended coverage customary in
the area where the Mortgaged Property is located, in an amount which is at
least equal to the lesser of (i) 100% of the replacement value of the
improvements securing the Mortgage Loan or (ii) the Principal Balance of the
Mortgage Loan (so long as it equals 80% of the insurable value of the
improvements); provided that in any case such amount shall be sufficient to
prevent the Mortgagor and/or Mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area then identified on a flood hazard boundary
map or flood insurance rate map issued by the Federal Emergency Management
Agency as having special flood hazards (and such flood insurance is then
available), the Servicer will cause to be maintained a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration with a generally acceptable insurance carrier, if such
insurance is available. Such flood insurance shall be in an amount
representing coverage not less than the least of (i) the outstanding principal
balance of the Mortgage Loan, (ii) the full insurable value of the
improvements securing such Mortgage Loan or (iii) the maximum amount of
insurance available under the National Flood Insurance Act of 1968 and the
Flood Disaster Protection Act of 1973, each as amended. The Servicer shall
also maintain on REO Property (x) fire and hazard insurance with extended
coverage in an amount that is at least equal to the maximum insurable value of
the improvements that are a part of such property, (y) liability insurance and
(z) to the extent required and available under the National Flood Insurance
Act of 1968 and the Flood Disaster Protection Act of 1973, each as amended,
flood insurance in an amount as provided above. Any amounts collected by the
Servicer under any such policies shall be paid over or applied by the Servicer
in accordance with Acceptable Servicing Procedures whether (i) for the
restoration or repair of the Mortgaged Property, subject to the related
Mortgage, (ii) for release to the Mortgagor in accordance with Acceptable
Servicing Procedures or (iii) for application in reduction of the Mortgage
Loan, in which event such amounts shall be deposited in the Custodial Account,
as provided in Section 3.07. It is understood and agreed that no earthquake or
other additional insurance need be required by the Servicer of any Mortgagor
or maintained on property acquired in respect of a Mortgage Loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. All policies required
hereunder shall be endorsed with standard mortgagee clauses with loss payable
to the Servicer and shall provide for at least 30 days prior written notice to
the Servicer of any cancellation, reduction in amount, or material change in
coverage. The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent upon any policy
renewal; provided, however, upon any such policy renewal, the Servicer shall
accept such insurance policies only from insurance companies that have a
rating of B:III or better in Best's Key Rating Guide and are licensed to do
business in the jurisdiction in which the Mortgaged Property is located. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to present claims to the insurer under any Standard
Hazard Policies on behalf of itself, the Trustee and the Certificateholders
and, in this regard, to take any reasonable action necessary to permit
recovery under any insurance policies.
Any cost incurred by the Servicer or the related Sub-Servicer in
maintaining any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the Trustee
for their benefit, be added to the Principal Balance of the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs
shall be recoverable by the Servicer out of payments by the related Mortgagor
or out of Insurance Proceeds or Liquidation Proceeds or otherwise to the
extent permitted by Section 3.09 hereof.
In the event that the Servicer, as servicer for the benefit of the
Owner, shall obtain and maintain a blanket policy that would meet the
requirements of ▇▇▇▇▇▇ ▇▇▇ if ▇▇▇▇▇▇ ▇▇▇ were the purchaser of the Mortgage
Loans, insuring against loss to the Trustee as mortgagee from damage to the
Mortgaged Property on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the aggregate outstanding
principal balance of the Mortgage Loans without coinsurance and otherwise
complies with the requirements of Section 3.11(a), the Servicer shall be
deemed conclusively to have satisfied its obligations under Section 3.11(a),
it being understood and agreed that such blanket policy may contain a
deductible clause not to exceed $10,000; provided, however, that if there
shall have been one or more of such losses the Servicer shall deposit in the
Custodial Account, as provided in Section 3.07, out of the Servicer's own
funds and without reimbursement therefor, the difference, if any, between the
amount that would have been payable under a policy complying with Section
3.11(a) and the amount paid under such blanket policy. Upon the request of the
Depositor or the Trustee on behalf of the Certificateholders, the Servicer
shall cause to be delivered to the Depositor or the Trustee on behalf of the
Certificateholders a certified true copy of such policy and a statement from
the insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days prior written notice to the Depositor and
the Trustee.
(b) The Servicer shall maintain, at its own expense, with responsible
companies that meet the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, a blanket
fidelity bond and an errors and omissions insurance policy, with broad
coverage on all officers, employees, agents and other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans (collectively, the "Servicer Employees"). Any
such fidelity bond and errors and omissions insurance shall be in the form of
the Mortgage Banker's Blanket Bond and shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions, failure to maintain any insurance policies required pursuant to
this Agreement and negligent acts of such Servicer Employees. Such fidelity
bond shall also protect and insure the Servicer against losses in connection
with the release or satisfaction of a Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 3.11 requiring such fidelity bond and errors and omissions insurance
shall diminish or relieve the Servicer from its duties and obligations as set
forth in this Agreement. The terms of any such fidelity bond and errors and
omissions insurance policy shall be at least equal to the corresponding
amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ MBS Selling and Servicing
Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Seller's and Servicer's Guide, as
amended or restated from time to time. Upon the request of the Depositor or
the Trustee on behalf of the Certificateholders, the Servicer shall cause to
be delivered to the Depositor or the Trustee a certified true copy of such
fidelity bond and errors and omissions insurance policy and a statement from
the surety and the insurer that such fidelity bond and errors and omissions
insurance policy shall in no event be terminated or materially modified
without 30 days prior written notice to the Depositor or the Trustee.
SECTION 3.12 Enforcement of Due-On-Sale Clauses;
Assumption Agreements.
(a) The Servicer will use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about
to be sold, whether by absolute conveyance or by contract of sale and whether
or not the Mortgagor remains liable on the Mortgage and the Mortgage Note,
provided that in accordance with the terms of the Mortgage Note, the Servicer
may permit an assumption (i) if the Servicer reasonably believes it is unable
under Applicable Requirements to enforce such "due-on-sale" clause or (ii) if
the enforcement of such rights would impair or threaten to impair any recovery
under the related Primary Mortgage Insurance Policy, if any. In connection
with any such assumption, the related Mortgage Rate, the Principal Balance and
the term of the Mortgage Loan may not be changed. If an assumption is allowed
pursuant to this Section 3.12(a), the Servicer is authorized, at the
Servicer's discretion, to prepare a substitution of liability agreement to be
entered into by the Trustee on behalf of he Certficateholders and the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption
agreement. If an assumption fee is collected by the Servicer for entering into
an assumption agreement the entire amount of such fee may be retained by the
Servicer as additional servicing compensation.
(b) The Servicer shall follow Acceptable Servicing
Procedures (including underwriting standards) with respect to any such
assumption or substitution of liability. The Servicer shall notify the Trustee
that any such substitution of liability or assumption agreement has been
completed by forwarding to the Trustee a copy of any such substitution of
liability or assumption agreement, which document shall be added to the
related Mortgage File and shall for all purposes be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
(c) Subject to the Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.12(a) hereof, in any case in which a
Mortgaged Property has been or is about to be conveyed to a Person by a
Mortgagor, if an assumption is permitted under Section 3.12(a) and such Person
is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage held for the benefit of the
Certificateholders that requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall deliver or
cause to be delivered to the Trustee for signature the assumption agreement
with the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such
Person. The Servicer shall also deliver or cause to be delivered to the
Trustee with the foregoing documents a letter explaining the nature of such
documents and the reason or reasons why the Trustee's signature is required.
With such letter, the Servicer shall deliver to the Trustee a
certificate of a Servicing Officer certifying that: (i) a Servicing Officer
has examined and approved such documents as to form and substance, (ii) the
Trustee's execution and delivery thereof will not conflict with or violate any
terms of this Agreement or cause the unpaid principal balance of and interest
on the Mortgage Loan to be uncollectible in whole or in part, (iii) any
required consents of insurers under any Required Insurance Policies have been
obtained and (iv) subsequent to the closing of the transaction involving the
assumption or transfer (A) the Mortgage Loan will continue to be secured by a
first mortgage lien pursuant to the terms of the Mortgage, (B) such
transaction will not adversely affect the coverage under any Required
Insurance Policies, (C) the Mortgage Loan will fully amortize over the
remaining term thereof (D) no material term of the Mortgage Loan (including
the interest rate on the Mortgage Loan) will be altered nor will the term of
the Mortgage Loan be changed and (E) if the seller/transferor of the Mortgaged
Property is to be released from liability on the Mortgage Loan, the Servicer
used the same underwriting standards in evaluating the creditworthiness of the
purchaser/transferee as were used in making the original Mortgage Loan, and
such release will not (based on the Servicer's good faith determination)
adversely affect the collectibility of the Mortgage Loan. Upon receipt of such
certificate, the Trustee for the benefit of the Certificateholders shall
execute any necessary instruments for such assumption or substitution of
liability. Upon the closing of the transactions contemplated by such
documents, the Servicer shall cause the originals of the assumption agreement,
the release (if any), or the modification or supplement to the Mortgage Note
or Mortgage to be delivered to the Trustee for the benefit of the
Certificateholders and deposited with the Trustee Mortgage File for such
Mortgage Loan. Any fee collected by the Servicer for entering into an
assumption or substitution of liability agreement will be retained by the
Servicer as additional servicing compensation. The Servicer shall bear any
expense incurred in connection with entering into any assumption or
substitution of liability agreement. In the event that the Servicer, in
connection with any such assumption or modification agreement or supplement to
the Mortgage Note, is unable to deliver the certificate of the Servicing
Officer set forth above, the Servicer shall purchase, or cause the related
Sub-Servicer to purchase the related Mortgage Loan in the manner, and at the
Purchase Price, set forth in Section 2.04 hereof.
For purposes of this Section 3.12, the term "assumption" is deemed to
also include a sale of the Mortgaged Property subject to the Mortgage that is
not accompanied by an assumption or substitution of liability agreement.
SECTION 3.13 Realization Upon Defaulted Mortgage Loans.
In the event that any payment due under any Mortgage Loan is not paid
when the same becomes due and payable, or in the event the Mortgagor fails to
perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Servicer will
proceed diligently to collect all payments due and shall take such action,
including commencing foreclosure, as it shall reasonably deem to be in the
best interests of the Trustee on behalf of the Certificateholders.
Notwithstanding the foregoing provisions of this Section 3.13, with
respect to any Mortgage Loan as to which the Servicer has received actual
notice of, or has actual knowledge of, the presence of any toxic or hazardous
substance on the related Mortgaged Property, the Servicer shall not either (i)
obtain title to such Mortgaged Property as a result of or in lieu of
foreclosure or otherwise or (ii) otherwise acquire possession of, or take any
other action with respect to, such Mortgaged Property if, as a result of any
such action, the Trustee on behalf of the Certificateholders would be
considered to hold title to, to be a mortgage-in-possession of, or to be an
owner or operator of such Mortgaged Property within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended from time to time, or any comparable law, unless the Servicer has
either (x) obtained the written consent of the Trustee or (y) previously
determined, based on its reasonable judgment and a prudent report prepared by
a Person who regularly conducts environmental audits using customary industry
standards, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trustee for the benefit of the Certificateholders to take
such actions as are necessary to bring the Mortgaged Property into
compliance therewith; and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous substances,
hazardous materials, hazardous wastes, or petroleum-based materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any federal, state or local law or
regulation, or that if any such materials are present for which such
action could be required, that it would be in the best economic interest
of the Trustee for the benefit of the Certificateholders to take such
actions with respect to the affected Mortgaged Property.
The cost of the environmental audit report contemplated by this
Section 3.13 shall be advanced by the Servicer as a Servicing Advance, subject
to the Servicer's right to be reimbursed therefor from the Custodial Account.
If the Servicer determined that it is in the best economic interest
of the Trustee on behalf of the Certificateholders to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials affecting any such Mortgaged
Property or has obtained the written consent of the Trustee, in each case as
described above, then the Servicer shall take such action as it deems to be in
the best economic interest of the Trustee on behalf of the Certificateholders
(or as otherwise directed by the Trustee). The cost of any such compliance,
containment, clean-up or remediation shall be advanced by the Servicer as a
Servicing Advance, subject to the Servicer's right to be reimbursed therefor
from the Custodial Account.
(b) In the event that title to any Mortgaged Property that becomes an
REO Property, the deed or certificate of sale shall be taken in the name of
the Trustee for the benefit of the Certificateholders or, in the event the
Trustee is not authorized or permitted to hold title to real property in the
state where the REO Property is located or would be adversely affected under
the "doing business" or tax laws of such state by so holding title, in the
name of such Person or Persons as shall be consistent with an Opinion of
Counsel obtained by the Servicer from any attorney duly licensed to practice
law in the state where the REO Property is located. The Person or Persons
holding such title other than the Trustee shall acknowledge in writing that
such title is being held as nominee for the Trustee. The Servicer shall
provide written notice to the Trustee on behalf of the Certificateholders
after any REO Property is acquired in foreclosure or by deed in lieu of
foreclosure.
(c) The Servicer, shall manage, conserve, protect, and operate each
REO Property solely for the purpose of its prompt disposition and sale. The
Servicer shall either itself, or through an agent selected by the Servicer,
manage, conserve, protect and operate the REO Property in accordance with
Acceptable Servicing Procedures. The Servicer shall attempt to sell the same
(and may temporarily rent the same) on such terms and conditions as the
Servicer deems to be in the best interests of the Trustee on behalf of the
Certificateholders.
(d) The Servicer shall collect all revenues arising from the
operation of REO Property. The Servicer shall deposit, or cause to be
deposited, all such revenues in the Custodial Account no later than 24 hours
prior to the next Distribution Date following receipt thereof. The Servicer
may use all such revenues and, if any thereof have been deposited in the
Custodial Account, withdraw such revenues therefrom as is necessary for the
proper operation, management and maintenance of any REO Property, including,
but not limited to, the cost of maintaining any hazard insurance pursuant to
Section 3.11 and the fees of any managing agent acting on behalf of the
Servicer.
(e) The Servicer shall also maintain on each REO Property fire and
hazard insurance with extended coverage, liability insurance, and flood
insurance in accordance with the provisions of Section 3.11.
(f) The Servicer shall undertake to sell the REO Property at such
price and upon such terms and conditions as the Servicer deems to be in the
best interest of the Trustee on behalf of the Certificateholders. The proceeds
of sale of the REO Property shall be deposited in the Custodial Account no
later than 24 hours prior to the next Distribution Date following receipt
thereof. Out of the sale proceeds of any REO Property, the Servicer shall pay
the expenses of such sale and shall reimburse itself for any related unpaid
Servicing Fees, unpaid REO management fees and unreimbursed Servicing Advances
and Monthly Advances. If the sale proceeds have been deposited in the
Custodial Account, the Servicer may withdraw from the Custodial Account the
amounts necessary to make such payments and reimbursements. The Servicer shall
be entitled to pay itself an REO management fee for each REO Property equal to
the greater of $1,000 and 1.5% of the net cash proceeds of the sale of such
REO Property.
Upon request, with respect to any REO Property, the Servicer shall
furnish to the Trustee or the Depositor a statement covering the Servicer's
efforts in connection with the sale of that REO Property and any rental of the
REO Property incidental to the sale thereof for the previous month (together
with an operating statement for such REO Property). Such statement shall be
accompanied by such other information as the Trustee or the Depositor shall
reasonably request. The Servicer shall maintain separate accounting for each
REO Property.
(g) The decision of the Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding. The income earned from the management of any Mortgaged Properties
acquired through foreclosure or other judicial proceeding on behalf of the
Certificateholders, net of reimbursement to the Servicer for expenses incurred
(including any taxes) in connection with such management, advances made by the
Servicer pursuant to Sections 3.01, 3.08, 3.11, 3.13, 5.01 or 5.02 in
connection with the related Mortgage Loan or REO Property and Liquidation
Expenses incurred by the Servicer in connection with the related Mortgage
Loan, shall be applied to the payment of principal of and interest on the
related defaulted Mortgage Loans (with interest accruing and principal
amortizing as though such Mortgage Loans were still current) and all such
income shall be deemed, for all purposes in this Agreement, to be payments on
account of principal of and interest on the related Mortgage Notes and shall
be deposited into the Custodial Account.
SECTION 3.14 Trustee to Cooperate; Release of Trustee Mortgage
Files.
Upon becoming aware of the payment in full of any Mortgage Loan, or
the receipt by the Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, and upon notification by the
Servicer in the form of a certification (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Custodial Account have been or will be so deposited) of a Servicing Officer
and a request for release of the Trustee Mortgage File in the form of Exhibit
K hereto, the Trustee shall promptly release the related Trustee Mortgage File
to the Servicer, and the Trustee shall execute and deliver to the Servicer the
request for reconveyance, deed of reconveyance or release, satisfaction or
assignment of mortgage or such instrument releasing the lien of the Mortgage,
and, in each case, such other documents or instruments as may be reasonably
required in connection therewith, as directed by the Servicer, together with
the Mortgage Note with written evidence of cancellation thereon. The
provisions of the immediately preceding sentence shall not, in any manner,
limit or impair the right of the Servicer to execute and deliver, on behalf of
the Trustee, the Depositor, the Certificateholders or any of them, any and all
instruments of satisfaction, cancellation or assignment, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Custodial Account or the Certificate Account but shall be paid by the
Servicer.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including, without limitation, for such
purpose, collection under any policy of flood insurance, any fidelity bond or
errors or omissions policy, or for the purposes of effecting a partial or
total release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Trustee Mortgage File, the Trustee shall, upon
request of the Servicer and the delivery to the Trustee of a request for
release signed by a Servicing Officer, in the form of Exhibit K hereto,
release the Trustee Mortgage File to the Servicer. The Servicer shall cause
each Trustee Mortgage File or any document therein so released to be returned
to the Trustee when the need therefor by the Servicer no longer exists, unless
(i) the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Custodial Account or
(ii) the Trustee Mortgage File or such document has been delivered to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for
the foreclosure of the Mortgaged Property either judicially or non-judicially,
and the Servicer has delivered to the Trustee notice from a Servicing Officer
as to the name and address of the Person to which such Trustee Mortgage File
or such document was delivered and the purpose of such delivery.
If the Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property, the Servicer shall deliver to
the Depositor or the Trustee, for signature as appropriate, any court
pleadings, requests for trustee's sale or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity,
together with a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee. A Servicing Officer shall
certify as to the reason such documents or pleadings are required and that the
execution and delivery thereof by the Trustee will not invalidate the
insurance coverage under any Required Insurance Policy or invalidate or
otherwise affect the lien of the Mortgage except for the termination of such
lien upon completion of the foreclosure.
SECTION 3.15 Documents, Records and Funds in Possession of
Servicer to be Held for the Depositor and the
Trustee for the Benefit of the Certificateholders.
Notwithstanding any other provisions of this Agreement, the Servicer
shall transmit to the Trustee to the extent required by this Agreement all
documents and instruments coming into the possession of the Servicer from time
to time and shall account fully to the Trustee for the benefit of the
Certificateholders for any funds received by the Servicer or which otherwise
are collected by the Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan. All Servicer Mortgage Files or Trustee Mortgage
Files and funds collected or held by, or under the control of, the Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds or Insurance Proceeds,
including but not limited to, any funds on deposit in the Custodial Account,
shall be held by the Servicer for and on behalf of the Depositor, the Trustee
for the benefit of the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of
this Agreement. The Servicer also agrees that it shall not create, incur or
subject any Servicer Mortgage File or Trustee Mortgage File or any funds that
are deposited in the Custodial Account or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment or other encumbrance, or assert by legal action or
otherwise any claim or right of setoff against any Servicer Mortgage File or
Trustee Mortgage File or any funds collected on, or in connection with, a
Mortgage Loan, except, however, that the Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Servicer under this Agreement subject to the terms of this
Agreement.
SECTION 3.16 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall be
entitled to pay itself the Servicer's Servicing Fee from the gross amount of
interest payments on each Mortgage Loan which are actually received by the
Servicer with respect thereto. Additional servicing compensation in the form
of non-sufficient funds check fees, assumption fees, other related
administrative fees, late payment charges, prepayment charges and other
similar types of ancillary fees and charges which are actually received by the
Servicer may be retained by the Servicer to the extent not required to be
deposited into the Custodial Account pursuant to the terms of this Agreement.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled
to reimbursement therefor except as specifically provided for in this
Agreement.
The Servicing Fee for each period ending on each Distribution Date
shall be reduced by an amount equal to the Compensating Interest Payment for
the Distribution Date. The Servicer shall, on the third Business Day
immediately preceding the related Distribution Date, deposit the related
Compensating Interest Payment to the Custodial Account. In addition, the
Servicer shall be entitled to reimbursement for Monthly Advances, Servicing
Advances and Nonrecoverable Advances, all as specified by Section 3.07. The
amount of compensation or reimbursement provided for shall be accounted for on
a Mortgage Loan-by-Mortgage Loan basis. The Servicing Fee with respect to any
Mortgage Loan will accrue on the same basis as interest accrues on the
Mortgage Loan.
SECTION 3.17 Reports to the Depositor; Account Statements.
Within five Business Days following each Distribution Date, the
Servicer shall deliver to the Trustee and the Depositor a bank statement
setting forth the status of the Custodial Account, if any, as of the close of
business on the last day of the calendar month preceding such Distribution
Date showing, for the period covered by such statement, the aggregate of
deposits in or withdrawals from the Custodial Account, if any, for each
category of deposit specified in Section 3.07 hereof and each category of
withdrawal specified in Section 3.09 hereof. The Servicer shall forward a copy
of such statement to the Rating Agencies. Within ten Business Days following
each Distribution Date, the Trustee shall deliver to the Depositor a statement
setting forth the status of the Certificate Account as of the close of
business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the Certificate
Account. The Trustee shall forward a copy of such statement to the Rating
Agencies.
SECTION 3.18 Annual Statement as to Compliance.
The Servicer will deliver to the Sellers, Depositor and the Trustee,
on or before April 30th of each year, an Officers' Certificate for the prior
fiscal year ending December31, beginning with the fiscal year ending December
31, 2000, stating that (i) the Servicer has fully complied with the provisions
of this Agreement, (ii) a review of the activities of the Servicer during the
preceding fiscal year and of performance under this Agreement has been made
under such supervision of the officers signing such Officers' Certificate and
(iii) to the best of such officers' knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout
such fiscal year or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof and the action being taken by the Servicer to cure
such default. In addition, the Servicer will deliver to the Depositor, Trustee
or any Seller, upon its request, one additional compliance certificate in any
fiscal year. If the Servicer learns of the enactment or promulgation of any
federal, state or local law or regulation applicable to the Servicer or the
Servicer's business that may materially and adversely affect the ability of
the Servicer to perform its obligations under this Agreement, the Servicer
shall include in the next Officers' Certificate to be delivered in accordance
with this provision a notice to such effect, identifying such law or
regulation and the manner in which such law or regulation may have such
effect. The Officers' Certificate shall also include, if not prohibited by law
or government regulation, copies of any notices received from any federal or
state regulatory agencies relating to an order, ruling, statute or other law
or information which might materially and adversely affect the ability of such
Servicer to perform its obligations under this Agreement.
The Servicer shall forward a copy of each such statement to the
Rating Agencies.
SECTION 3.19 Annual Independent Public Accountants' Servicing
Report.
On or before April 30th of each year, beginning April 30, 2001, the
Servicer at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Depositor and the Trustee (who shall provide a copy
thereof to (i) each Rating Agency, (ii) each Certificateholder, and (iii) any
other Certificateholder upon request, in each case at the Servicer's expense)
to the effect that such firm has examined certain documents and records
relating to the mortgage servicing operations of the Servicer and that such
firm is of the opinion that on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, nothing has come to their attention which would indicate
that such servicing has not been conducted in compliance therewith, except for
(i) such exceptions as such firm shall believe to be immaterial and (ii) such
other exceptions as shall be set forth in such statement.
SECTION 3.20 Reports to Trustee.
On or before the sixth Business Day prior to each Distribution Date,
the Servicer shall deliver to the Trustee a monthly servicing report in form
and substance as agreed to by the Servicer and the Trustee containing such
information as is reasonably required to enable the Trustee to prepare the
reports required pursuant to Section 4.04(a). The Trustee may conclusively
rely on information provided by the Servicer and shall have no obligation to
recompute, recalculate, or verify the accuracy of such information.
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Certificate Account.
The Trustee shall establish, prior to the Delivery Date, and shall
maintain, in the name of the Trustee on behalf of the Holders of interests in
the Trust Fund, the Certificate Account, which shall be an Eligible Account,
into which the Trustee upon receipt from the Servicer shall deposit all
payments remitted by the Servicer and any amounts required to be remitted by
the Depositor pursuant to the terms hereof. All distributions to be made from
time to time to Holders of interests in the Trust Fund out of funds in the
Certificate Account shall be made by or on behalf of the Trustee. The Trustee
will give notice to the Servicer, the Rating Agencies and the Depositor of the
location of the Certificate Account and of any change thereof, prior to the
use thereof. Funds held in the Certificate Account and delivered to the
Trustee earlier than one Business Day prior to the next Distribution Date
shall be invested by the Trustee in Eligible Investments as directed by the
Trustee or shall remain uninvested. All income and gain net of any losses
realized from any such investment shall be for the benefit of the Trustee and
shall be subject to withdrawal at the Trustee's direction from time to time.
The amount of any losses net of any gains not paid to the Trustee incurred in
respect of any such investments shall be deposited in the Certificate Account
out of the Trustee's own funds immediately as realized.
The Trustee shall make, to the extent required or authorized
hereunder, withdrawals from the Certificate Account for the following purposes
in the following order of priority:
(i) to withdraw any amount deposited in the Certificate Account and
not required to be deposited therein;
(ii) to reimburse the Servicer for any unreimbursed Nonrecoverable
Advance;
(iii) to pay to itself the Trustee Fee;
(iv) to make required distributions pursuant to Section 4.02; and
(v) to pay to the Depositor any amount to which it is entitled
pursuant to Section 7.03.
SECTION 4.02 Distributions.
(a) [Reserved]
(b) On each Distribution Date the Trustee shall apply amounts in the
Certificate Account, to pay the following amounts in the following order of
priority:
(i) from the Available Distribution Amount, to the Class P
Certificates, an amount allocable to principal equal to the Class P
Principal Distribution Amount, up to the outstanding Certificate
Principal Balance of such Certificates;
(ii) concurrently, from the Available Distribution Amount remaining
after the distribution pursuant to clause (i) above, (a) to the Class A
Certificates, the Class R Certificates and the Class S Certificates, an
amount allocable to interest equal to the Interest Distribution Amount
for such Distribution Date, any shortfall being allocated pro rata among
such Classes in proportion to the amount of the Interest Distribution
Amount that would have been distributed in the absence of such shortfall;
(iii) on each Distribution Date prior to the Credit Support Depletion
Date, from the Available Distribution Amount remaining after giving
effect to the distributions pursuant to clauses (i) and (ii) above, to
the Class A Certificates and the Class R Certificates, the Senior
Principal Distribution Amount, in the following order of priority:
(A) first, to the Class R Certificates, until the Certificate
Principal Balance of the Class R Certificates has been reduced to
zero;
(B) second, to the Class A Certificates, until the Certificate
Principal Balance of the Class A Certificates has been reduced to
zero;
(iv) from the Available Distribution Amount remaining after giving
effect to the distributions pursuant to clauses (i) through (iii) above,
to each Class of Subordinate Certificates, subject to paragraphs (d) and
(e) below, in the following order of priority:
(A) first, to the Class M-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) second, to the Class M-1 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution Date
until the Certificate Principal Balance of Class M-1 Certificates
has been reduced to zero;
(C) third, to the Class M-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) fourth, to the Class M-2 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution Date
until the Certificate Principal Balance of Class M-2 Certificates
has been reduced to zero;
(E) fifth, to the Class M-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) sixth, to the Class M-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Certificate Principal Balance of Class M-3 Certificates
has been reduced to zero;
(G) seventh, to the Class B-1 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) eighth, to the Class B-1 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution Date
until the Certificate Principal Balance of Class B-1 Certificates
has been reduced to zero;
(I) ninth, to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) tenth, to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Certificate Principal Balance of Class B-2 Certificates
has been reduced to zero;
(K) eleventh, to the Class B-3 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(L) twelfth, to the Class B-3 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution Date
until the Certificate Principal Balance of Class B-3 Certificates
has been reduced to zero; and
(v) to the Class R Certificates, any remaining Available Distribution
Amount.
(c) Notwithstanding the allocation and priority set forth in Section
4.02(b)(iii), on each Distribution Date on or after the Credit Support
Depletion Date, the portion of Available Distribution Amount available to be
distributed to the Class A Certificates and the Class R Certificates specified
in such Section will be distributed by the Trustee among such Classes, pro
rata, on the basis of their respective Certificate Principal Balances (prior
to making any distributions on such Distribution Date) and until the
Certificate Principal Balances thereof are reduced to zero. Notwithstanding
anything to the contrary contained herein, on each Distribution Date on or
after the Credit Support Depletion Date, the Class P Principal Distribution
Amount distributable to the Class P Certificates pursuant to Section
4.02(b)(i) shall be reduced by the Class P Fraction of Realized Losses on the
Class P Mortgage Loans.
(d) On each Distribution Date, the amount referred to in clause (i)
of the definition of Interest Distribution Amount for such Distribution Date
for each Class of Certificates shall be reduced by the Trustee by, (i) the
related Class' pro rata share (based on the applicable Interest Distribution
Amount for each such Class before reduction pursuant to this Section
4.02(d)(i)) of Net Prepayment Interest Shortfalls; and (ii) the Class'
Allocable Share of (A) after the Special Hazard Coverage Termination Date,
with respect to each Mortgage Loan that became a Special Hazard Mortgage Loan
during the related Prepayment Period, the excess of one month's interest at
the related Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan as of the Due Date in such month over the amount of Liquidation Proceeds
applied as interest on such Mortgage Loan with respect to such month, (B)
after the Bankruptcy Coverage Termination Date, with respect to each Mortgage
Loan that became subject to a Bankruptcy Loss during the related Prepayment
Period, the interest portion of the related Debt Service Reduction or
Deficient Valuation, (C) each Relief Act Reduction for any Mortgage Loan
incurred during the related Prepayment Period and (D) after the Fraud Loss
Coverage Termination Date, with respect to each Mortgage Loan that became a
Fraud Loan during the related Prepayment Period the excess of one month's
interest at the related Net Mortgage Rate on the Stated Principal Balance of
such Mortgage Loan as of the Due Date in such month over the amount of
Liquidation Proceeds applied as interest on such Mortgage Loan with respect to
such month.
(e) With respect to each Class of Subordinate Certificates, if on any
Distribution Date the related Subordination Level of such Class is less than
such percentage as of the Delivery Date, no distribution of Principal
Prepayments in Full and Principal Prepayments in Part will be made to any
Class or Classes of Subordinate Certificates junior to such Class (the
"Restricted Classes") and the amount otherwise distributable to the Restricted
Classes in respect of such Principal Prepayments in Full and Principal
Prepayments in Part will be allocated among the remaining Classes of
Subordinate Certificates, pro rata, based upon their respective Certificate
Principal Balances.
(f) The Trustee shall be responsible for the calculations with
respect to distributions from the Certificate Account so long as the Trust
Fund has not been terminated in accordance with this Agreement. All
distributions made to Certificateholders of any Class on such Distribution
Date will be made to the Certificateholders of the respective Class of record
on the immediately preceding Record Date, except for the final distribution,
which shall be made as provided in the form of Certificate. All distributions
made to the Certificateholders shall be based upon the Percentage Interest
represented by their respective Certificates. If on any Determination Date,
the Trustee determines that there are no Mortgage Loans outstanding and no
other funds or assets in the Trust Fund other than the funds in the
Certificate Account, the Trustee shall promptly send the final distribution
notice to each Certificateholder specifying the manner in which the final
distribution will be made.
(g) Any Certificateholder shall be entitled to receive distributions
hereunder on a Distribution Date (other than as provided in Section 10.02
respecting the final distribution) by wire transfer to the account specified
in writing by the Certificateholder to the 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 Certificate Register.
SECTION 4.03 Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall
determine the total amount of Realized Losses, including Excess Losses and
Extraordinary Losses, with respect to the related Distribution Date.
(b) The interest portion of Realized Losses on the Mortgage Loans,
other than Excess Losses and Extraordinary Losses, with respect to any
Distribution Date shall be allocated to Certificates as follows: first, to the
Subordinate Certificates in decreasing order of their numerical Class
designations (beginning with the Class of Class B Certificates then
outstanding with the highest Class designation and then to the Class M
Certificates then outstanding with the highest Class designation), in
reduction of accrued but unpaid interest and then in reduction of the
Certificate Principal Balance of each such Class until the respective
Certificate Principal Balance of each such Class has been reduced to zero; and
second, to the Class A and Class S Certificates, in reduction of accrued but
unpaid interest and then, pro rata, in reduction of their respective
Certificate Principal Balances, if applicable, until the respective
Certificate Principal Balance of each such Class has been reduced to zero, in
each case to the extent not allocated to the Subordinate Certificates pursuant
to clause first above.
(c) The principal portion of Realized Losses on the Mortgage Loans,
other than Excess Losses and Extraordinary Losses, with respect to any
Distribution Date shall be allocated to Certificates as follows: first, to the
Subordinate Certificates in decreasing order of their numerical Class
designations (beginning with the Class of Class B Certificates then
outstanding with the highest Class designation and then to the Class M
Certificates then outstanding with the highest Class designation), until the
respective Certificate Principal Balance of each such Class has been reduced
to zero; and second, to the Class A Certificates, until the Certificate
Principal Balance of such Class has been reduced to zero; provided, however,
that if the Realized Loss is recognized with respect to a Class P Mortgage
Loan, the applicable Class P Fraction of such loss will be allocated to the
Class P Certificates, and the remainder of such loss will be allocated to the
Class A Certificates as described in this clause second, in each case to the
extent not allocated to the Subordinate Certificates pursuant to clause first
above.
(d) On each Distribution Date, Excess Losses and Extraordinary Losses
experienced by the Mortgage Loans will be allocated to the Classes of
Certificates (other than the Class P and Class S Certificates) by Pro Rata
Allocation (except if the loss is recognized with respect to a Class P
Mortgage Loan, the applicable Class P Fraction of such loss will be allocated
to the Class P Certificates and the remainder will be allocated to the other
Classes of Certificates as described in this Section 4.03(d)).
(e) On each Distribution Date, if the aggregate Certificate Principal
Balance of all Certificates exceeds the aggregate Stated Principal Balance of
the Mortgage Loans (in each case, after giving effect to distributions of
principal and the allocation of all losses to the related Certificates on such
Distribution Date), such excess will be deemed a principal loss and will be
allocated to the most junior Class of Class B Certificates then outstanding,
or, if the aggregate Certificate Principal Balance of the Class B Certificates
has been reduced to zero, to the most junior Class of Class B Certificates
then outstanding.
SECTION 4.04 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and cause to be forwarded by mail to each Certificateholder, the Sellers, the
Servicer, the Depositor and the Rating Agencies a statement setting forth:
(i) the amount of distribution made on such Distribution Date to the
Holders of Certificates of each such Class allocable to principal;
(ii) the amount of the distribution made on such Distribution Date to
the Holders of Certificates of each such Class allocable to interest;
(iii) the aggregate amount of servicing compensation received by the
Servicer during the related Due Period and such other customary
information which a Certificateholder reasonably requests to enable
Certificateholders to prepare their tax returns;
(iv) the aggregate amount of Monthly Advances included in such
distributions;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Properties at the close of business on such Distribution Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of Mortgage
Loans (a) delinquent 30 days, (b) delinquent 60 days, (c) delinquent 90
or more days and (d) as to which foreclosure proceedings have been
commenced;
(viii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number of such Mortgage
Loan, the unpaid principal balance and the Stated Principal Balance of
such Mortgage Loan as of the date it became an REO Property;
(ix) the book value of any REO Property as of the close of business
on the last Business Day of the calendar month preceding the Distribution
Date;
(x) the aggregate amount of Principal Prepayments made during the
related Prepayment Period;
(xi) the aggregate amount of Realized Losses incurred during the
related Prepayment Period and incurred since the issuance of the
Certificates;
(xii) the aggregate Certificate Principal Balance or Class Notional
Amount, as applicable, of each such Class of Certificates, after giving
effect to the distributions, and allocations of Realized Losses made on
such Distribution Date, separately identifying any reduction thereof due
to allocations of Realized Losses;
(xiii) the Senior Percentage and the Senior Prepayment Percentage for
such Distribution Date;
(xiv) the Interest Distribution Amount in respect of each such Class
of Certificates for such Distribution Date (separately identifying any
reductions resulting from the allocation of Realized Losses allocable to
interest on such Distribution Date) and the respective portions thereof,
if any, remaining unpaid following the distributions made in respect of
such Certificates on such Distribution Date;
(xv) the aggregate amount of any Prepayment Interest Shortfalls for
such Distribution Date, to the extent not covered by payments by the
Servicer pursuant to Section 3.16; and
(xvi) whether any action has been taken to commence or delay
foreclosure with respect to any Mortgage Loans, including the number of
such Mortgage Loans and their outstanding principal balances.
In the case of information furnished pursuant to subclauses (i) -
(iv) above, the amounts shall be expressed as a dollar amount per $1,000 of
Certificate Principle Balance of the relevant Class.
(b) Upon reasonable advance notice in writing, if required by federal
regulation, the Trustee will provide to each Certificateholder that is a
savings association, bank or insurance company certain reports and access to
information and documentation regarding the Mortgage Loans sufficient to
permit such Certificateholder to comply with applicable regulations of the
Office of Thrift Supervision or other regulatory authorities with respect to
investment in the Certificates and the Servicer shall cooperate with the
Trustee in providing such information; provided, however, that the Trustee
shall be entitled to be reimbursed by each such Certificateholder for the
Trustee's actual expenses incurred in providing such reports and access. The
Trustee will provide to any Certificateholder upon request the outstanding
Certificate Principal Balance as of such dates and, if then known by the
Trustee, the outstanding Certificate Principal Balances after giving effect to
any distribution to be made on the next following Distribution Date.
ARTICLE V
ADVANCES
SECTION 5.01 Monthly Advances by the Servicer.
Subject to the conditions of this Article V, the Servicer, as
required below, shall make a Monthly Advance to the Certificate Account
maintained by the Trustee, in the amount, if any, of the aggregate Monthly
Payments less Prepayment Interest Shortfalls and Relief Act Reductions, after
adjustment of the interest portion of each such Monthly Payment to the
Mortgage Rate less the applicable Servicing Fee Rate and the Retained Yield
Rate, on the Mortgage Loans that were due on the Due Date but that were not
received and remitted to the Certificate Account on or prior to the Servicer
Advance Date. The Servicer shall be obligated to make any such Monthly Advance
only to the extent that such advance, in the good faith judgment of the
Servicer, will be recoverable by the Servicer from Insurance Proceeds,
Liquidation Proceeds (less Liquidation Expenses), or otherwise on the related
Mortgage Loan.
On the Determination Date immediately preceding the related
Distribution Date, the Servicer shall determine whether and to what extent any
Mortgagor has failed to make any Monthly Payment due on the Due Date and
whether such deficiencies, if advanced by the Servicer, would be recoverable
by the Servicer from related Insurance Proceeds or Liquidation Proceeds (net
of Liquidation Expenses). If the Servicer shall have determined that it is not
obligated to make the entire Monthly Advance because all or a lesser portion
of such Monthly Advance would not be recoverable by the Servicer from related
Insurance Proceeds or Liquidation Proceeds (net of Liquidation Expenses), the
Servicer shall deliver to the Trustee, not later than the 18th day of the
related calendar month (or the next succeeding Business Day if the 18th is not
a Business Day), for the benefit of the Certificateholders, an Officers'
Certificate setting forth the reasons for such determination.
In lieu of making all or a portion of any Monthly Advance, the
Servicer may cause to be made an appropriate entry in its records relating to
the Custodial Account that funds in such account, including but not limited to
any amounts received in respect of scheduled principal and interest on any
Mortgage due after the related Due Period, in excess of the Available
Distribution Amount (less the amount of such Monthly Advance) for the related
Distribution Date have been used by the Servicer in discharge of its
obligation to make any such Monthly Advance. Any funds so applied shall be
replaced by the Servicer by deposit, in the manner set forth above, in the
Custodial Account no later than the Servicer Advance Date to the extent that
funds in the Custodial Account on such date are less than the amounts required
to be distributed on the related Distribution Date. The Servicer shall be
entitled to be reimbursed from the Custodial Account for all Monthly Advances
of its own funds made pursuant to this Section as provided in Section 3.09.
SECTION 5.02 Monthly Advances for Attorneys' Fees.
The Servicer shall make advances from time to time for attorneys'
fees and court costs incurred, or which reasonably can be expected to be
incurred, for the foreclosure of any Mortgage Loan or for any transaction in
which the Trustee for the benefit of the Certificateholders is expected to
receive a deed-in-lieu of foreclosure, unless the Servicer has made a good
faith determination that such advances would not be recoverable from Insurance
Proceeds or Liquidation Proceeds relating to the Mortgage Loan. If the
Servicer shall make a good faith determination that such advances would not be
so recoverable, the Servicer shall promptly deliver to the Trustee an
Officers' Certificate setting forth the reasons for such determination. The
Servicer shall be entitled to reimbursement for any such advance as provided
in Section 3.09 hereof.
SECTION 5.03 Nonrecoverable Advances.
The determination by the Servicer that it has made a Nonrecoverable
Advance shall be evidenced by an Officers' Certificate of the Servicer
promptly delivered to the Trustee setting forth the reasons for such
determination. Following the Trustee's receipt of the Officers' Certificate,
the Servicer shall be entitled to reimbursement for such Nonrecoverable
Advance as provided in Section 3.09 hereof.
SECTION 5.04 Advance Procedures.
(a) If, on any Determination Date, the Servicer determines to make a
Monthly Advance in accordance with Section 5.01, it shall make such Monthly
Advance on or before noon, New York time, on the 18th day of the related
calendar month (or the next succeeding Business Day if the 18th is not a
Business Day) (the "Servicer Advance Date"). The Servicer shall notify the
Trustee of the aggregate amount of Monthly Advances for a Distribution Date on
or before five Business Days prior to such Distribution Date. Any such Monthly
Advance shall be included with the distribution on the related Distribution
Date pursuant to Section 4.02.
(b) In the event that the Servicer fails to make a Monthly Advance
required to be made pursuant to Section 5.01 on or before 3 p.m., New York
time, on the Servicer Advance Date, the Trustee shall on or before 12 noon,
New York time on the next Business Day provide to the Servicer, by telecopy,
written notice of such failure and the amount of such failure and that
continuance of such failure for a period of one Business Day will be an Event
of Default.
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.
The Certificates shall be in substantially the forms set forth in
Exhibits A, B, C and D hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution thereof.
The definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by a Responsible Officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication executed by the Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained, a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trustee shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. Upon
surrender for registration of transfer of any Certificate, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in like aggregate interest and of
the same Class.
(b) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of authorized denominations and the same
aggregate interest in the Trust Fund and of the same Class, upon surrender of
the Certificates to be exchanged at the office or agency of the Trustee set
forth in Section 9.11. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, authenticate and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing.
(c) No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
(d) All Certificates surrendered for registration of transfer and
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(e) No transfer of any Private Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
1933 Act and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. In the event that a transfer, other than the
initial transfer, is to be made without registration or qualification, (i) the
Trustee shall require, in order to assure compliance with such laws, that the
Certificateholder desiring to effect the transfer and such Certificateholder's
prospective transferee each certify to the Trustee in writing in the forms set
forth in Exhibit M and Exhibit L, respectively, the facts surrounding the
transfer and (ii) the Depositor or the Trustee shall require an opinion of
counsel reasonably satisfactory to the requesting party that such transfer may
be made without such registration or qualification, which Opinion of Counsel
shall not be required to be an expense of the Depositor or the Trustee.
Neither the Depositor nor the Trustee is obligated to register or qualify any
Private Certificate under the 1933 Act or any other securities law or to take
any action not otherwise required under this Agreement to permit the transfer
of such Certificate or interest without registration or qualification. Any
such Holder desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result
if the transfer is not so exempt, or is not made in accordance with federal
and state laws.
(f) No transfer of an ERISA-Restricted Certificate shall be made to
any employee benefit or other plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Code, to a trustee or other person acting on behalf of any such plan, or to
any other person using "plan assets" to effect such acquisition, unless the
prospective transferee of a Certificateholder desiring to transfer its
Certificate provides the Trustee with a certification as set forth in
paragraph 6 of Exhibit L or an Opinion of Counsel which establishes to the
reasonable satisfaction of the Depositor and the Trustee that the purchase and
holding of an ERISA-Restricted Certificate by, on behalf of or with "plan
assets" of such plan is permissible under applicable local law, would not
constitute or result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code, and would not subject the Depositor or the Trustee
to any obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in this Agreement or any
other liability. The Trustee shall require that such prospective transferee
certify to the Trustee in writing the facts establishing that such transferee
is not such a plan and is not acting on behalf of or using "plan assets" of
any such plan to effect such acquisition. For purposes of the second preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a
Private Certificate or a Residual Certificate, in the event the representation
letter referred to in the preceding sentence is not furnished, such
representation shall be deemed to have been made to the Trustee by the
transferee's (including an initial acquiror's) acceptance of the
ERISA-Restricted Certificates.
(g) Additional restrictions on transfers of the Class R Certificates
to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of
such ownership interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee or its designee
under clause (iii)(A) below to deliver payments to a Person other than
such Person and to negotiate the terms of any mandatory sale under clause
(iii)(B) below and to execute all instruments of transfer and to do all
other things necessary in connection with any such sale. The rights of
each Person acquiring any ownership interest in a Class R Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any ownership interest in a
Class R Certificate shall be other than a Disqualified Organization
and shall promptly notify the Trustee of any change or impending
change in its status as other than a Disqualified Organization.
(B) In connection with any proposed transfer of any ownership
interest in a Class R Certificate to a U.S. Person, the Trustee
shall require delivery to it, and shall not register the transfer of
a Class R Certificate until its receipt of (1) an affidavit and
agreement (a "Transferee Affidavit and Agreement" attached hereto as
Exhibit K) from the proposed transferee, in form and substance
satisfactory to the Trustee, representing and warranting, among
other things, that it is not a non-U.S. Person, that such transferee
is other than a Disqualified Organization, that it is not acquiring
its ownership interest in a Class R Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person who is not other than a Disqualified Organization, that for
so long as it retains its ownership interest in a Class R
Certificate, it will endeavor to remain other than a Disqualified
Organization, and that it has reviewed the provisions of this
Section 6.02(g) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit L, from the Holder wishing
to transfer a Class R Certificate, in form and substance
satisfactory to the Trustee, representing and warranting, among
other things, that no purpose of the proposed transfer is to allow
such Holder to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit and
Agreement by a proposed transferee under clause (B) above, if the
Trustee has actual knowledge that the proposed transferee is not
other than a Disqualified Organization, no transfer of an ownership
interest in a Class R Certificate to such proposed transferee shall
be effected.
(D) Each Person holding or acquiring any ownership interest in a
Class R Certificate agrees, by holding or acquiring such ownership
interest, (1) to require a Transferee Affidavit and Agreement from
the other Person to whom such Person attempts to transfer its
ownership interest and to provide a certificate to the Trustee in
the form attached hereto as Exhibit L, and (2) to obtain the express
written consent of the Trustee prior to any transfer of such
ownership interest, which consent may be withheld in the Trustee's
sole discretion.
(ii) The Trustee shall register the transfer of any Class R
Certificate only if it shall have received the Transferee Affidavit and
Agreement, a certificate of the Holder requesting such transfer in the
form attached hereto as Exhibit K and all of such other documents as
shall have been reasonably required by the Trustee as a condition to such
registration.
(iii) (A) If any Disqualified Organization shall become a Holder of a
Class R Certificate, then the last preceding Holder that was other than a
Disqualified Organization shall be restored, to the extent permitted by
law, to all rights and obligations as Holder thereof retroactive to the
date of registration of such transfer of such Class R Certificate. If any
non-U.S. Person shall become a Holder of a Class R Certificate, then the
last preceding Holder that is a U.S. Person shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of the transfer to such non-U.S.
Person of such Class R Certificate. If a transfer of a Class R
Certificate is disregarded pursuant to the provisions of Treasury
Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding
Holder that was other than a Disqualified Organization shall be restored,
to the extent permitted by law, to all rights and obligations as Holder
thereof retroactive to the date of registration of such transfer of such
Class R Certificate. The Trustee shall be under no liability to any
Person for any registration of transfer of a Class R Certificate that is
in fact not permitted by this Section 6.02(g) or for making any payments
due on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this
Agreement.
(B) If any purported transferee of a Class R Certificate shall
become a Holder of a Class R Certificate in violation of the
restrictions in this Section 6.02(g) and to the extent that the
retroactive restoration of the rights of the Holder of such Class R
Certificate as described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Trustee shall have the right,
without notice to the Holder or any prior Holder of such Class R
Certificate, to sell such Class R Certificate to a purchaser
selected by the Trustee on such terms as the Trustee may choose.
Such purported transferee shall promptly endorse and deliver a Class
R Certificate in accordance with the instructions of the Trustee.
Such purchaser may be the Servicer itself or any affiliate of the
Servicer. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Servicer or its affiliates),
expenses and taxes due, if any, shall be remitted by the Servicer to
such purported transferee. The terms and conditions of any sale
under this clause (iii)(B) shall be determined in the sole
discretion of the Trustee, and the Trustee shall not be liable to
any Person having an ownership interest or a purported ownership
interest in a Class R Certificate as a result of its exercise of
such discretion.
(iv) The Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, all information
reasonably available to it that is necessary to compute any tax imposed
(A) as a result of the transfer of an ownership interest in a Class R
Certificate to any Person who is not other than a Disqualified
Organization, including the information regarding "excess inclusions" of
such Residual Certificate required to be provided to the Internal Revenue
Service and certain Persons as described in Treasury Regulation Section
1.860D-1(b)(5), and (B) as a result of any regulated investment company,
real estate investment trust, common trust fund, partnership, trust,
estate or organizations described in Section 1381 of the Code having as
among its record holders at any time any Person who is not other than a
Disqualified Organization. Reasonable compensation for providing such
information may be required by the Servicer from such Person.
(v) The provisions of this Section 6.02(g) set forth prior to this
Section (v) may be modified, added to or eliminated by the Trustee,
provided that there shall have been delivered to the Trustee the
following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current
rating of the Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee, to the effect that such modification, addition to or
elimination of such provisions will not cause the Trust Fund to
cease to qualify as a REMIC and will not create a risk that (i) the
Trust Fund may be subject to an entity-level tax caused by the
transfer of a Class R Certificate to a Person which is not other
than a Disqualified Organization or (2) a Certificateholder or
another Person will be subject to a REMIC-related tax caused by the
transfer of applicable Class R Certificate to a Person which is not
other than a Disqualified Organization.
(vi) The following legend shall appear on each Class R Certificate:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A
TRANSFER AFFIDAVIT TO THE TRUSTEE THAT (1) SUCH TRANSFEREE IS
NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE
DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM
THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF
THE CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED
TO AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN
REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THE CLASS R CERTIFICATE BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
(h) The Trustee shall have no liability to the Trust Fund arising
from a transfer of any such Certificate in reliance upon a certification,
ruling or Opinion of Counsel described in this Section 6.02; provided,
however, that the Trustee shall not register the transfer of any Class R
Certificate if it has actual knowledge that the proposed transferee does not
meet the qualifications of a permitted Holder of a Class R Certificate as set
forth in this Section 6.02.
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Servicer and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and interest in the Trust Fund. In connection with the issuance of any
new Certificate under this Section 6.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 6.03 shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Servicer, the Trustee, and any agent of the Servicer or the
Trustee may treat the person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Servicer, the Trustee nor any agent of the Servicer or the Trustee shall
be affected by any notice to the contrary.
SECTION 6.05 Access to List of Certificateholders'
Names and Addresses.
(a) If three or more Certificateholders (i) request in writing from
the Trustee a list of the names and addresses of Certificateholders, (ii)
state that such Certificateholders desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and (iii) provide a copy of the communication which such
Certificateholders propose to transmit, then the Trustee shall, within ten
Business Days after the receipt of such request, afford such
Certificateholders access during normal business hours to a current list of
the Certificateholders. The expense of providing any such information
requested by a Certificateholder shall be borne by the Certificateholders
requesting such information and shall not be borne by the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
(b) The Servicer, so long as it is the servicer hereunder, each
Seller and the Depositor shall have unlimited access to a list of the names
and addresses of the Certificateholders which list shall be provided by the
Trustee promptly upon the request of the Servicer.
SECTION 6.06 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in St. ▇▇▇▇, Minnesota where
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served. The Trustee initially
designates the office described in Section 9.11 as its office for such
purpose. The Trustee will give prompt written notice to the Certificateholders
of any change in the location of any such office or agency.
SECTION 6.07 Book-Entry Certificates.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates representing the Book-Entry Certificates, to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Depositor. The
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of DTC, as the initial
Clearing Agency, and no Beneficial Holder will receive a definitive
certificate representing such Beneficial Holder's interest in the
Certificates, except as provided in Section 6.09. Unless and until definitive,
fully registered Certificates ("Definitive Certificates") have been issued to
the Beneficial Holders pursuant to Section 6.09:
(a) the provisions of this Section 6.07 shall be in full force and
effect with respect to the Book-Entry Certificates;
(b) the Depositor and the Trustee may deal with the Clearing Agency
for all purposes with respect to the Book-Entry Certificates (including the
making of distributions on such Certificates) as the sole Holder of such
Certificates;
(c) to the extent that the provisions of this Section 6.07 conflict
with any other provisions of this Agreement, the provisions of this Section
6.07 shall control; and
(d) the rights of the Beneficial Holders of the Book-Entry
Certificates shall be exercised only through the Clearing Agency and the
Participants and shall be limited to those established by law and agreements
between such Beneficial Holders and the Clearing Agency and/or the
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.09, the initial
Clearing Agency will make book-entry transfers among the Participants and
receive and transmit distributions of principal and interest on the related
Book-Entry Certificates to such Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Book-Entry Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of such Certificates, such direction or consent may be
given by the Clearing Agency at the direction of Beneficial Holders owning
such Certificates evidencing the requisite percentage of principal amount of
such Certificates. The Clearing Agency may take conflicting actions with
respect to the Book-Entry Certificates to the extent that such actions are
taken on behalf of the Beneficial Holders.
SECTION 6.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of Book-Entry
Certificates is required under this Agreement, unless and until Definitive
Certificates shall have been issued to the related Certificateholders pursuant
to Section 6.09, the Trustee shall give all such notices and communications
specified herein to be given to Holders of the Book-Entry Certificates to the
Clearing Agency which shall give such notices and communications to the
related Participants in accordance with its applicable rules, regulations and
procedures.
SECTION 6.09 Definitive Certificates.
If (a) the Depositor advises the Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
under the Depository Agreement with respect to the Certificates and the
Trustee or the Depositor is unable to locate a qualified successor, (b) the
Depositor, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system with respect to the Book-Entry Certificates
through the Clearing Agency or (c) after the occurrence of an Event of
Default, Holders of Book-Entry Certificates evidencing not less than 66%
of the aggregate Certificate Principal Balance of the Book-Entry Certificates
advise the Trustee in writing that the continuation of a book-entry system
with respect to the such Certificates through the Clearing Agency is no longer
in the best interests of the Holders of such Certificates with respect to the
Book-Entry Certificates, the Trustee shall notify all Holders of such
Certificates of the occurrence of any such event and the availability of
Definitive Certificates. Upon surrender to the Trustee of the such
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Trustee shall authenticate and
deliver the Definitive Certificates. Neither the Depositor nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates, and the Trustee shall
recognize the Holders of Definitive Certificates as Certificateholders
hereunder.
ARTICLE VII
THE DEPOSITOR, THE SELLERS AND THE SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor
and the Servicer.
The Depositor, the Sellers and the Servicer shall each be
liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
SECTION 7.02 Merger or Consolidation of the Depositor,
the Sellers, or the Servicer.
Subject to the immediately succeeding paragraph, the Depositor, the
Sellers, and the Servicer will each do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
and franchises (charter and statutory) and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor, a Seller or the Servicer may be
merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor, a Seller or the Servicer shall be a
party, or any Person succeeding to the business of the Depositor, a Seller, or
the Servicer, shall be the successor of the Depositor, such Seller or the
Servicer, as the case may be, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person to the Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac.
Notwithstanding anything else in this Section 7.02 or in Section 7.04
hereof to the contrary, the Servicer may assign its rights and delegate its
duties and obligations under this Agreement; provided, however, that the
Servicer gives the Depositor and the Trustee notice of such assignment; and
provided further, that such purchaser or transferee accepting such assignment
and delegation shall be an institution that is a ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac
approved seller/servicer in good standing, which has a net worth of at least
$15,000,000, and which is willing to service the Mortgage Loans and executes
and delivers to the Depositor and the Trustee an agreement accepting such
delegation and assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this
Agreement; and provided further, that each of the Rating Agencies acknowledge
that its rating of the Certificates in effect immediately prior to such
assignment will not be qualified or reduced as a result of such assignment and
delegation. In the case of any such assignment and delegation, the Servicer
shall be released from its obligations under this Agreement, except that the
Servicer shall remain liable for all liabilities and obligations incurred by
it as Servicer hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the preceding sentence.
SECTION 7.03 Limitation on Liability of the Depositor,
the Sellers, the Servicer and Others.
Neither the Depositor, the Servicer, the Sellers, any Sub-Servicer
nor any of the directors, officers, employees or agents of the Depositor, the
Servicer, the Sellers or any Sub-Servicer shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Servicer or a Seller against any breach of representations or
warranties made by it herein or protect the Depositor, the Servicer or a
Seller or any such person from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Depositor, the Servicer, the Sellers, any Sub-Servicer and any
director, officer, employee or agent of the Depositor, the Servicer, the
Sellers or any Sub-Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Servicer, the Sellers, any
Sub-Servicer and any director, officer, employee or agent of the Depositor,
the Servicer, the Sellers or any Sub-Servicer shall be indemnified by the
Trust Fund and held harmless against any loss, liability or expense incurred
in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Servicer, the Sellers or any
Sub-Servicer shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to their respective duties hereunder
and which in its opinion may involve it in any expense or liability; provided,
however, that the Depositor, the Servicer, the Sellers or any Sub-Servicer may
in its discretion undertake any such action that it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the
parties hereto and interests of the Trustee and the Certificateholders
hereunder.
SECTION 7.04 Servicer Not to Resign.
The Servicer shall not resign from the obligations and duties imposed
upon it hereunder except upon determination that such obligations and duties
hereunder are no longer permissible under applicable law or in connection with
an assignment permitted pursuant to Section 7.02. Any such determination
permitting the resignation of the Servicer under this Section 7.04 shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
The Servicer shall give notice of any proposed resignation to the Trustee, the
Certificateholders and the Rating Agencies. No such resignation by the
Servicer shall become effective until the Trustee or a successor servicer
shall have assumed the Servicer's responsibilities and obligations in
accordance with Section 8.02 hereof.
SECTION 7.05 Sellers and Servicer May Own Certificates.
Each of the Sellers and the Servicer in its individual or any other
capacity may become the owner or pledgee of Certificates with the same rights
as it would have if it were not the Sellers or the Servicer.
SECTION 7.06 Obligations of the Sellers.
The obligations and liability of each of the Sellers under this
Agreement are several, and no Seller shall be responsible for the obligations
of any other Seller under this Agreement. Each representation, warranty and
covenant made by one Seller under this Agreement is made by, or on behalf of,
and with respect to , that Seller only and not to any other Seller.
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) any failure by the Servicer to remit to the Trustee within three
(3) Business Days when due any payment, other than a Monthly Advance, required
to be made under the terms of this Agreement; or
(b) any failure by the Servicer to duly observe or perform, in any
material respect, any other covenant, obligation or agreement of the Servicer
as set forth in this Agreement, which failure continues unremedied for a
period of sixty (60) (or, in the case of any failure to pay the premium for
any insurance policy which is required to be maintained hereunder, thirty
(30)) days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Depositor, a Seller or the Trustee; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities, or similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the Servicer and such decree or
order shall have remained in force, undischarged or unstayed for a period of
sixty (60) days; or
(d) the Servicer shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Servicer
or relating to all or substantially all of the Servicer's property; or
(e) the Servicer shall admit in writing its inability to pay its
debts as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations; or
(f) the Servicer shall fail to be an approved servicer of mortgage
loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac, in good standing; or
(g) the Servicer shall fail to be in compliance with the "doing
business" or licensing laws of any jurisdiction where a Mortgaged Property is
located; or
(h) The Servicer attempts to assign its right to the servicing
compensation hereunder without the consent of the Applicable Seller, to sell
or otherwise dispose of all or substantially all of its property or assets or,
except as specifically permitted herein, to assign this Agreement or the
servicing responsibilities hereunder; or
(i) any failure of the Servicer to make any Monthly Advance in the
manner and at the time required to be made from its own funds pursuant to this
Agreement and after receipt of notice from the Trustee pursuant to Section
5.04, which failure continues unremedied after 5 p.m., Eastern Standard Time,
on the Business Day immediately preceding the Distribution Date.
If an Event of Default due to the actions or inaction of the Servicer
described in clauses (a) through (h) shall occur, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee shall at the direction of the Holders of Certificates evidencing not
less than 25% of the Voting Rights evidenced by the Certificates, by notice in
writing to the Servicer (with a copy to the Rating Agencies), terminate all of
the rights and obligations of the Servicer under this Agreement (other than
rights to reimbursement for Monthly Advances or other advances previously
made, as provided in Section 3.09).
If an Event of Default described in clause (i) shall occur, the
Trustee shall, prior to the next Distribution Date, terminate the rights and
obligations of the Servicer hereunder and succeed to the rights and
obligations of the Servicer hereunder pursuant to Section 8.02. including the
obligation to make Monthly Advances on such Distribution Date pursuant to the
terms hereof.
SECTION 8.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 8.01 hereof or resigns pursuant to Section 7.04 hereof,
subject to the provisions of Section 3.06 hereof, the Trustee shall be the
successor in all respects to the Servicer in its capacity as servicer under
this Agreement and with respect to the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, provided that the Trustee shall not be deemed to have made
any representation or warranty as to any Mortgage Loan made by the Servicer
and shall not effect any repurchases or substitutions of any Mortgage Loan. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Servicer would have been entitled to charge to the
Custodial Account if the Servicer had continued to act hereunder (except that
the terminated Servicer shall retain the right to be reimbursed for advances
(including, without limitation, Monthly Advances) theretofore made by the
Servicer with respect to which it would be entitled to be reimbursed if it had
not been so terminated as Servicer). Notwithstanding the foregoing, if the
Trustee has become the successor to the Servicer in accordance with this
Section 8.02, the Trustee may, if it shall be unwilling to so act, or shall,
if it is unable to so act (exclusive of the obligations with respect to
Monthly Advances), appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution, the appointment
of which does not adversely affect the then current rating of the
Certificates, as the successor to the Servicer hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the
Servicer, provided that such successor to the Servicer shall not be deemed to
have made any representation or warranty as to any Mortgage Loan made by the
Servicer. Pending appointment of a successor to the Servicer hereunder, the
Trustee, unless the Trustee is prohibited by law from so acting, shall act in
such capacity as provided herein. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess
of that permitted the Servicer hereunder. The Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Trustee nor any other successor
servicer shall be deemed to be in default hereunder by reason of any failure
to make, or any delay in making, any distribution hereunder or any portion
thereof caused by the failure of the Servicer to deliver, or any delay in
delivering, cash, documents or records to it.
The Servicer that has been terminated shall, at the request of the
Trustee but at the expense of such Servicer, deliver to the assuming party all
documents and records relating to each Sub-Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
each Sub-Servicing Agreement to the assuming party.
The Servicer shall cooperate with the Trustee and any successor
servicer in effecting the termination of the Servicer's responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be
credited by the Servicer to the Custodial Account or thereafter received with
respect to the Mortgage Loans.
Neither the Trustee nor any other successor servicer shall be deemed
to be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (a) the
failure of the Servicer to (i) deliver, or any delay in delivering, cash,
documents or records to it, (ii) cooperate as required by this Agreement, or
(iii) deliver the Mortgage Loan to the Trustee as required by this Agreement,
or (b) restrictions imposed by any regulatory authority having jurisdiction
over the Servicer.
Any successor to the Servicer as servicer shall during the term of
its service as servicer maintain in force the policy or policies that the
Servicer is required to maintain pursuant to Section 3.11(b) hereof.
SECTION 8.03 Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to the
Servicer, the Trustee shall give prompt written notice thereof to the Sellers,
the Depositor and the Certificateholders at their respective addresses
appearing in the Certificate Register and to the Rating Agencies.
(b) Within two Business Days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to the Sellers, the Depositor and
all Certificateholders and the Rating Agencies notice of each such Event of
Default hereunder known to the Trustee, unless such Event of Default shall
have been cured or waived.
SECTION 8.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (i) of Section 8.01 may be waived, only by all of the
Holders of Certificates affected by such default or Event of Default and (b)
no waiver pursuant to this Section 8.04 shall affect the Holders of
Certificates in the manner set forth in Section 11.01(b)(i), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon except to
the extent expressly so waived.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, undertakes with
respect to the Trust Fund to perform such duties and only such duties as are
specifically set forth in this Agreement. In case an Event of Default has
occurred and remains uncured, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs. Any permissive
right of the Trustee set forth in this Agreement shall not be construed as a
duty.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they conform to the requirements of this Agreement. The Trustee shall
have no duty to recompute, recalculate or verify the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument so furnished to the Trustee.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct, its negligent failure to perform its obligations
in compliance with this Agreement, or any liability which would be imposed by
reason of its willful misfeasance or bad faith; provided, however, that:
(a) prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default that may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be personally liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement which it reasonably believed in good faith to be genuine
and to have been duly executed by the proper authorities respecting any
matters arising hereunder;
(b) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless the Trustee was negligent in ascertaining
or investigating the pertinent facts;
(c) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement; and
(d) no provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
Except with respect to an Event of Default described in clause (a) of
Section 8.01, the Trustee shall not be deemed to have knowledge of any Event
of Default or event which, with notice or lapse of time, or both, would become
an Event of Default, unless a Responsible Officer of the Trustee shall have
received written notice thereof from the Servicer, the Depositor or a
Certificateholder, or a Responsible Officer of the Trustee has actual notice
thereof, and in the absence of such notice no provision hereof requiring the
taking of any action or the assumption of any duties or responsibility by the
Trustee following the occurrence of any Event of Default or event which, with
notice or lapse of time or both, would become an Event of Default, shall be
effective as to the Trustee.
The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall use its best efforts to remit to the Servicer
upon receipt of any such complaint, claim, demand, notice or other document
(i) which is delivered to the Corporate Trust Office of the Trustee, (ii) of
which a Responsible Officer has actual knowledge, and (iii) which contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property.
SECTION 9.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel, financial advisors
or accountants and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
been cured or waived), to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated
to each Class of Certificates; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action; the
reasonable expense of every such investigation shall be paid by the
Servicer in the event that such investigation relates to an Event of
Default by the Servicer, if an Event of Default by the Servicer shall
have occurred and is continuing, and otherwise by the Certificateholders
requesting the investigation;
(vi) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care;
(vii) the Trustee shall not be required to expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is
not assured to it; and
(viii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Agreement, the Certificates or of any
Mortgage Loan or related document. The Trustee shall not be accountable for
the use or application by the Depositor, the Sellers or the Servicer of any
funds paid to the Depositor or the Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from the Certificate Account by the Depositor,
the Sellers or the Servicer.
SECTION 9.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
SECTION 9.05 Trustee's Fees and Expenses.
The Trustee shall pay to itself on each Distribution Date from
amounts on deposit in the Certificate Account, an amount equal to the Trustee
Fee in accordance with Section 4.02(b). The Trustee is also entitled to
earnings on amounts held in the Certificate Account. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified by
the Depositor and held harmless against any loss, liability or expense
(including reasonable attorney's fees) (i) incurred in connection with any
claim or legal action relating to (a) this Agreement, (b) the Certificates or
(c) in connection with the performance of any of the Trustee's duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from any
error in any tax or information return prepared by the Trustee. Such indemnity
shall survive the termination of this Agreement or the resignation or removal
of the Trustee hereunder. Without limiting the foregoing, the Depositor
covenants and agrees, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any such expense, disbursement or
advance as may arise from the Trustee's negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that
the Trustee must engage such persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided herein, the Trustee
shall not be entitled to payment or reimbursement for any routine ongoing
expenses incurred by the Trustee in the ordinary course of its duties as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder.
SECTION 9.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association having its principal office in a state and city acceptable to the
Depositor and organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having ratings on its long-term debt obligations at the time of
such appointment in at least the third highest rating category by both S&P and
Fitch or such lower ratings as will not cause S&P or Fitch to lower their
then-current ratings of the Class A Certificates, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 9.07 hereof.
SECTION 9.07 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (a) giving written notice of resignation to the Depositor,
the Sellers and the Servicer and by mailing notice of resignation by first
class mail, postage prepaid, to the Certificateholders at their addresses
appearing on the Certificate Register, and to the Rating Agencies, not less
than 60 days before the date specified in such notice when, subject to Section
9.08, such resignation is to take effect, and (b) acceptance by a successor
trustee in accordance with Section 9.08 meeting the qualifications set forth
in Section 9.06.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation or if
the Trustee breaches any of its obligations or representations hereunder, then
the Depositor may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee and one copy to the successor trustee. The Trustee
may also be removed at any time by the Holders of Certificates evidencing not
less than 50% of the Voting Rights evidenced by the Certificates. Notice of
any removal of the Trustee and acceptance of appointment by the successor
trustee shall be given to the Rating Agencies by the Servicer.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or receipt of a notice of removal, the resigning Trustee may, at
the Trust Fund's expense, petition any court of competent jurisdiction for the
appointment of a successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 9.08 hereof.
SECTION 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, upon receipt of all amounts due it hereunder, and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance (i) such successor trustee
shall be eligible under the provisions of Section 9.06 hereof and (ii) its
acceptance shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.08, the Servicer shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown
in the Certificate Register. If the Servicer fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 9.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such Person shall be eligible under the
provisions of Section 9.06 hereof without the execution or filing of any paper
or further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the applicable Certificateholders, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this
Section 9.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider necessary or desirable. If the Servicer
shall not have joined in such appointment within fifteen days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
9.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 9.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for any obligation of the Trustee under this
Agreement to advance funds on behalf of the Servicer, shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed by the Trustee (whether
as Trustee hereunder or as successor to the Servicer), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) no trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder; and
(c) the Servicer and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 9.11 Office of the Trustee.
The office of the Trustee for purposes of receipt of notices and
demands is U.S. Bank National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇. ▇▇▇▇, ▇▇
▇▇▇▇▇, Attn: Structured Finance SPFT0210, Re: CSFB 2000-WM2.
SECTION 9.12 Tax Returns.
The Servicer, upon request, will furnish the Trustee with
all such information in the possession of the Servicer as may be reasonably
required in connection with the preparation by the Trustee of all tax and
information returns of the Trust Fund, as provided for in Section 2.06. The
Servicer shall indemnify the Trustee for all reasonable costs, including legal
fees and expenses, related to errors in such tax returns due to errors in
information provided by the Servicer.
SECTION 9.13 Monthly Reports.
The Trustee shall prepare, execute and file all periodic reports
required under the Securities Exchange Act of 1934, including but not limited
to Form 8-Ks, Form 10-Ks and Form 15s. In connection with the preparation and
filing of such periodic reports, the Depositor and the Servicer shall timely
provide to the Trustee all material information available to them which is
required to be included in such reports and not known to them to be in the
possession of the Trustee and such other information as the Trustee reasonably
may request from either of them and otherwise reasonably shall cooperate with
the Trustee. The Trustee will provide all information to Bloomberg that is
necessary to have the information regarding the Certificates and the
transaction posted on Bloomberg and the Trustee will provide Bloomberg with
all necessary information (including information regarding the Mortgage Loans)
for Bloomberg to update information necessary regarding the Certificates and
the transaction on Bloomberg. The Trustee shall have no liability with respect
to any failure to properly prepare or file such periodic reports resulting
from or relating to the Trustee's inability or failure to obtain any
information not resulting from its own negligence or willful misconduct.
ARTICLE X
TERMINATION
SECTION 10.01 Termination upon Liquidation or Repurchase
of all Mortgage Loans.
The obligations and responsibilities of the Servicer, the Sellers,
the Depositor and the Trustee created hereby with respect to the Trust Fund
created hereby shall terminate upon the earlier of:
(a) the repurchase by the Majority Class R Holder, at its election,
of all Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, which repurchase right the
Majority Class R Holder may exercise at its sole and exclusive election
as of any Distribution Date (such applicable Distribution Date being
herein referred to as the "Optional Termination Date") on or after the
date on which the aggregate Principal Balance of the Mortgage Loans at
the time of the repurchase is less than 10% of the aggregate Principal
Balance of the Mortgage Loans as of the Cut-off Date; and
(b) the later of (i) twelve months after the maturity of the last
Mortgage Loan remaining in the Trust Fund, (ii) the liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (iii) the
distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement.
In no event shall the trust created hereby continue beyond the earlier of (1)
the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, former Ambassador of the United States
to Great Britain, living on the date of execution of this Agreement or (ii)
the Scheduled Final Distribution Date.
The Mortgage Loan Repurchase Price for any such Optional Termination
of the Trust Fund shall be equal to the aggregate Principal Balance of the
Mortgage Loans as of the date of repurchase, together with accrued and unpaid
interest thereon from the date to which such interest was paid or advanced at
the sum of the applicable Mortgage Rate with respect to each Mortgage Loan
through the last day of the month of such repurchase, plus any sums on account
of such Mortgage Loan that have been advanced by the Servicer and are
reimbursable to the Servicer hereunder (including the Principal Balance of
each Mortgage Loan that was secured by any REO Property). The Trustee shall
give notice to the Rating Agencies of the Majority Class R Holder's election
to purchase the Mortgage Loans pursuant to this Section 10.01 and of the
Optional Termination Date.
SECTION 10.02 Procedure Upon Optional Termination.
(a) In case of any Optional Termination pursuant to Section 10.01,
the Majority Class R Holder shall, at least twenty days prior to the date
notice is to be mailed to the affected Certificateholders notify the Trustee
of such Optional Termination Date and of the applicable repurchase price of
the Mortgage Loans to be repurchased.
(b) Any repurchase of the Mortgage Loans by the Majority Class R
Holder shall be made on an Optional Termination Date by deposit of the
applicable repurchase price into the Certificate Account, as applicable,
before the Distribution Date on which such repurchase is effected. Upon
receipt by the Trustee of an Officers' Certificate of the Majority Class R
Holder certifying as to the deposit of such repurchase price into the
Certificate Account, the Trustee and each co-trustee and separate trustee, if
any, then acting as such under this Agreement, shall, upon request and at the
expense of the Majority Class R Holder, execute and deliver all such
instruments of transfer or assignment, in each case without recourse, as shall
be reasonably requested by the Majority Class R Holder, to vest title in the
Majority Class R Holder in the Mortgage Loans so repurchased and shall
transfer or deliver to the Majority Class R Holder the repurchased Mortgage
Loans. Any distributions on the Mortgage Loans received by the Trustee
subsequent to (or with respect to any period subsequent to) the Optional
Termination Date shall be promptly remitted by it to the Majority Class R
Holder.
(c) Notice of the Distribution Date on which the Majority
Class R Holder anticipates that the final distribution shall be made (whether
upon Optional Termination or otherwise), shall be given promptly by the
Majority Class R Holder to the Trustee and by the Trustee by first class mail
to Holders of the affected Certificates. Such notice shall be mailed no
earlier than the 15th day and not later than the 10th day preceding the
Optional Termination Date or date of final distribution, as the case may be.
Such notice shall specify (i) the Distribution Date upon which final
distribution on the affected Certificates will be made upon presentation and
surrender of such Certificates at the office or agency therein designated,
(ii) the amount of such final distribution and (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable, such
distribution being made only upon presentation and surrender of such
Certificates at the office or agency maintained for such purposes (the address
of which shall be set forth in such notice).
(d) In the event that any Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a
second written notice to the remaining such Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within six months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain subject to the Trust Fund.
SECTION 10.03 Additional Termination Requirements.
(a) In the event the Majority Class R Holder exercises its purchase
option pursuant to Section 10.01, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee has
received an Opinion of Counsel to the effect that the failure to comply with
the requirements of this Section will not (i) result in the imposition of
taxes on a "prohibited transaction" of the REMIC, as described in Section 860F
of the Code, or (ii) cause the Trust Fund to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(A) within 90 days prior to the final Distribution Date set
forth in the notice given by the Majority Class R Holder under
Section 10.02, the Holder of the Class R Certificates shall adopt a
plan of complete liquidation of the REMIC; and
(B) at or after the time of adoption of any such plan of
complete liquidation for the Trust Fund at or prior to the final
Distribution Date, the Trustee shall sell all of the assets of the
Trust Fund to the Depositor for cash; provided, however, that in the
event that a calendar quarter ends after the time of adoption of
such a plan of complete liquidation but prior to the final
Distribution Date, the Trustee shall not sell any of the assets of
the Trust Fund prior to the close of that calendar quarter.
(b) By its acceptance of a Class R Certificate, the Holder thereof
hereby agrees to adopt such a plan of complete liquidation and to take such
other action in connection therewith as may be reasonably required to
liquidate and otherwise terminate the Trust Fund.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Servicer, the Sellers and the Trustee, without the consent of any of the
Certificateholders,
(i) to cure any error or ambiguity,
(ii) to correct or supplement any provisions herein that may be
inconsistent with any other provisions herein or in the Prospectus
Supplement,
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or desirable to maintain the qualification
of the Trust Fund as a REMIC at all times that any Certificate is
outstanding or to avoid or minimize the risk of the imposition of any tax
on the Trust Fund pursuant to the Code that would be a claim against the
Trust Fund, provided that the Trustee has received an Opinion of Counsel
to the effect that (A) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of
any such tax and (B) such action will not adversely affect the status of
the Trust Fund as a REMIC or adversely affect in any material respect the
interests of any Certificateholder, or
(iv) to make any other provisions with respect to matters or
questions arising under this Agreement that are not materially
inconsistent with the provisions of this Agreement, provided that such
action shall not adversely affect in any material respect the interests
of any Certificateholder or cause an Adverse REMIC Event.
(b) This Agreement may be amended from time to time by the Depositor,
the Sellers, the Servicer and the Trustee with the consent of the Holders of
Certificates evidencing, in the aggregate, not less than 66-2/3% of the Voting
Rights of all the Certificates for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of the Certificates;
provided, however, that no such amendment may (i) reduce in any manner the
amount of, delay the timing of or change the manner in which payments received
on or with respect to Mortgage Loans are required to be distributed with
respect to any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of a Class of Certificates in a manner other than as set forth in
(i) above without the consent of the Holders of Certificates evidencing not
less than 66-2/3% of the Voting Rights of such Class, (iii) reduce the
aforesaid percentages of Voting Rights, the holders of which are required to
consent to any such amendment without the consent of 100% of the Holders of
Certificates of the Class affected thereby, (iv) change the percentage of the
Principal Balance of the Mortgage Loans specified in Section 10.01(a) relating
to optional termination of the Trust Fund or (v) modify the provisions of this
Section 11.01.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(c) Promptly after the execution of any amendment to this Agreement,
the Trustee shall furnish written notification of the substance of such
amendment to each Certificateholder and the Rating Agencies.
(d) Prior to the execution of any amendment to this Agreement, the
Trustee shall receive and be entitled to conclusively rely on an Opinion of
Counsel (at the expense of the Person seeking such amendment) stating that the
execution of such amendment is authorized and permitted by this Agreement. The
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Agreement.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) This Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other
comparable jurisdictions in which any or all of the Mortgaged Properties are
situated, and in any other appropriate public recording office or elsewhere.
Such recordation, if any, shall be effected by the Servicer at its expense on
direction of the Trustee, but only upon direction of the Trustee accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust
Fund.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
SECTION 11.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.04 Intention of Parties.
(a) It is the express intent of the Depositor and the Trustee that
the conveyance by the Depositor to the Trustee as provided for in Section 2.01
of the Depositor's right, title and interest in and to the Mortgage Loans be,
and be construed as, an absolute sale and assignment by the Depositor to the
Trustee of the Mortgage Loans for the benefit of the Certificateholders.
Further, it is not intended that the conveyance be deemed to be a pledge of
the Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation. However, in the event that the Mortgage Loans are held to be
property of the Depositor, or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans, then it is
intended that (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyances provided for in Section 2.01 shall be
deemed to be a grant by the Depositor to the Trustee on behalf of the
Certificateholders, to secure payment in full of the Secured Obligations (as
defined below), of a security interest in all of the Depositor's right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to the Mortgage Loans, including the
Mortgage Notes, the Mortgages, any related insurance policies and all other
documents in the related Mortgage Files, and all accounts, contract rights,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of credit
and uncertificated securities consisting of, arising from or relating to (A)
the Mortgage Loans, including with respect to each Mortgage Loan, the Mortgage
Note and related Mortgage, and all other documents in the related Trustee
Mortgage Files, and including any Replacement Mortgage Loans; (B) pool
insurance policies, hazard insurance policies and any bankruptcy bond relating
to the foregoing, if applicable; (C) the Certificate Account; (D) the
Custodial Account; (E) all amounts payable after the Cut-off Date to the
holders of the Mortgage Loans in accordance with the terms thereof; (F) all
income, payments, proceeds and products of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held or
invested in the Certificate Account, whether in the form of cash, instruments,
securities or other property; and (G) all cash and non-cash proceeds of any of
the foregoing; (iii) the possession by the Trustee or any other agent of the
Trustee of Mortgage Notes or such other items of property as constitute
instruments, money, documents, advices of credit, letters of credit, goods,
certificated securities or chattel paper shall be deemed to be a "possession
by the secured party", or possession by a purchaser or a person designated by
him or her, for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305, 8-313
or 8-321 thereof); and (iv) notifications to persons holding such property,
and acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, securities intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. "Secured Obligations" means (i)
the rights of each Certificateholder to be paid any amount owed to it under
this Agreement and (ii) all other obligations of the Depositor under this
Agreement.
(b) The Depositor, and, at the Depositor's direction, the Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority as applicable. The Trustee shall
file, at the Depositor's expense, all filings necessary to maintain the
effectiveness of any original filings, as set forth in an opinion of counsel
delivered to the Trustee by the Servicer or the Depositor, under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Mortgage Loans, including without
limitation (i) continuation statements, and (ii) such other statements as may
be occasioned by any transfer of any interest of the Servicer or the Depositor
in any Mortgage Loan.
SECTION 11.05 Notices.
In addition to other notices provided under this Agreement, the
Trustee shall notify the Rating Agencies in writing: (a) of any substitution
of any Mortgage Loan; (b) of any payment or draw on any insurance policy
applicable to the Mortgage Loans; (c) of the final payment of any amounts
owing to a Class of Certificates; (d) any Event of Default under this
Agreement; and (e) in the event any Mortgage Loan is repurchased in accordance
with this Agreement.
All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when received (i) in the case of the
Depositor, Credit Suisse First Boston Mortgage Securities Corp., ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President; (ii) in the case of
the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇. ▇▇▇▇, ▇▇
▇▇▇▇▇, Attn: Structured Finance, SPFT0210 Re: CSFB2000-WM2, or such other
address as may hereafter be furnished to the Depositor in writing by the
Trustee; (iii) in the case of the Sellers, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ telephone number: (206)
▇▇▇-▇▇▇▇, fax number (▇▇▇) ▇▇▇-▇▇▇▇; (iv) in the case of the Fitch, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage
Surveillance Group; (v) in the case of the Standard & Poor's Ratings Services,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
____________; and (vi) in the case of the Servicer, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Mail Stop: N010206,
telephone number: (▇▇▇) ▇▇▇-▇▇▇▇, fax number: (▇▇▇) ▇▇▇-▇▇▇▇. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
provided herein, and such default would not result in a claim under the
Policy, and unless the Holders of Certificates evidencing not less than 25% of
the Voting Rights evidenced by the Certificates shall also have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 11.07, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 11.08 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Trustee pursuant to this Agreement, are and shall be deemed
fully paid.
IN WITNESS WHEREOF, the Depositor, the Sellers, the Servicer
and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized all as of the first day of
November, 2000.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By:
---------------------------------------------
Name:
Title:
WASHINGTON MUTUAL BANK, FA,
as a Seller and Servicer
By:
---------------------------------------------
Name:
Title:
WASHINGTON MUTUAL BANK fsb,
as Seller
By:
---------------------------------------------
Name:
Title:
WASHINGTON MUTUAL BANK,
as Seller
By:
---------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------------
Name:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On this ___ day of December, 2000, before me, personally appeared
______________________, known to me to be a __________________________ of
Credit Suisse First Boston Mortgage Securities Corp., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________
Notary Public
[NOTARIAL SEAL]
STATE OF _______________ )
: ss.:
COUNTY OF _____________ )
On the ____ of December, 2000 before me, a Notary Public in and for
said State, personally appeared _________________________________ known to me
to be a ______________________________ of Washington Mutual Bank, FA, one of
the entities that executed the within instrument and also known to me to be
the person who executed it on behalf of said association, and acknowledged to
me that such association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________
Notary Public
[NOTARIAL SEAL]
STATE OF _______________ )
: ss.:
COUNTY OF _____________ )
On the ____ of December, 2000 before me, a Notary Public in and for
said State, personally appeared ______________________________ known to me to
be a __________________________ of Washington Mutual Bank fsb, one of the
entities that executed the within instrument and also known to me to be the
person who executed it on behalf of said association, and acknowledged to me
that such association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________
Notary Public
[NOTARIAL SEAL]
STATE OF _______________ )
: ss.:
COUNTY OF _____________ )
On the ____ of December, 2000 before me, a Notary Public in and for
said State, personally appeared ___________________________ known to me to be
a ________________________________ of Washington Mutual Bank, one of the
entities that executed the within instrument and also known to me to be the
person who executed it on behalf of said association, and acknowledged to me
that such association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________
Notary Public
[NOTARIAL SEAL]
STATE OF MINNESOTA)
: ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the ____ of December, 2000 before me, a Notary Public in and for
said State, personally appeared ______________________________ known to me to
be a _________________________________ of U.S. Bank National Association, the
national banking association that executed the within instrument and also
known to me to be the person who executed it on behalf of said association,
and acknowledged to me that such association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
____________________________
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
FORM OF CLASS A CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. OR THE TRUSTEE REFERRED TO
BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-WM2, CLASS A
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP ______________ Initial Aggregate Class A
Certificate Principal Balance:
$---------
Certificate No. Pass-Through Rate: Initial Certificate Principal
Balance Of This Certificate:
$--------------------
First Distribution Date: Final Scheduled
_________________ Distribution Date: ____________.
THIS CERTIFIES THAT [___________] is the registered owner of a
beneficial interest in the Trust Fund referred to below consisting of a pool
of fixed-rate conventional mortgage loans secured by first liens on one- to
four-family residential real properties (the "Mortgage Loans") and certain
other property held in trust transferred to the Trust Fund by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"), and certain related
property. The Trust Fund was created pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 2000 (the "Agreement"), among the
Depositor, U.S. Bank National Association, as trustee (the "Trustee", which
term includes any successor entity under the Agreement), Washington Mutual
Bank fsb, as a seller, Washington Mutual Bank, as a seller, and Washington
Mutual Bank, FA, as a seller and servicer, 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.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Mortgage-Backed Pass-Through Certificates, Series 2000-WM2 (the
"Certificates"), which is comprised of the following ten Classes: Class A,
Class P, Class S, Class R, Class M-1, Class M-2, Class M-3, Class B-1, Class
B-2, Class B-3. Reference is hereby made to the Agreement for a statement of
the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Mortgage
Loans and all distributions thereon payable after the Cut-off Date, net of
certain amounts in accordance with the provisions of the Agreement, (ii) the
Certificate Account and the Custodial Account and all amounts deposited
therein pursuant to the applicable provisions of the Agreement, net of any
investment earnings thereon, (iii) the interest of the Trust Fund in any
insurance policies with respect to the Mortgage Loans, (iv) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
This Class A 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 A Certificates, both as set
forth above.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 21st day of each calendar month, or, if such
21st day is not a Business Day, the Business Day immediately following such
21st day (each, a "Distribution Date"), commencing December 21, 2000, 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"), a principal amount equal to the product
of the Percentage Interest evidenced by this Certificate and that portion of
the Available Distribution Amount that is allocated to principal on such Class
of Certificates on such Distribution Date.
Distributions of interest will be made on each Distribution Date, to
the extent of available funds, in an amount equal to the Interest Distribution
Amount as further described in the Agreement.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the 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 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 as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Sellers, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor and the
Trustee with the consent of the Holders of Certificates evidencing Voting
Rights aggregating not less than 66-2/3% of the Voting Rights of all the
Certificates; provided, however, that no such amendment may (i) reduce in any
manner the amount of, delay the timing of or change the manner in which
payments received on Mortgage Loans are required to be distributed in respect
of any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of a
Class of Certificates in a manner other than in (i) above without the consent
of the Holders of Certificates evidencing not less than 66-2/3% of the Voting
Rights of such Class and (iii) reduce the aforesaid percentages of Voting
Rights, the holders of which are required to consent to any such amendment,
without the consent of 100% of the Holders of Certificates of the Class
affected thereby. 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, the
Sellers, the Servicer and the Trustee to amend certain terms and conditions
set forth in the Agreement without the consent of Holders of the Certificates.
At any time that any of the Certificates are outstanding, 98% percent of all
Voting Rights will be allocated to the Holders of the Certificates (other than
the Class R Certificates and the Class S Certificates), in proportion to their
then outstanding Certificate Principal Balances, 1% of all Voting Rights will
be allocated to the Holders of the Class S Certificates and 1% of all Voting
Rights will be allocated to the Holders of the Class R 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 Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the 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 Fund will be issued to the designated
transferee or transferees.
The Class A 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; provided, however, that one
Certificate of each Class may be issued in such other amount as is required so
that the aggregate of each Class of Certificates equals its respective
aggregate Certificate Principal Balance. 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 Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Trustee and any agent of the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee nor any such agent thereof shall be affected by notice to the
contrary.
The obligations and responsibilities of the Depositor and the Trustee
created by the Agreement will terminate upon the earlier of (a) the purchase
by the Majority Class R Holder from the Trust Fund of all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans, thereby
effecting early retirement of the Certificates, or (b) the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan. As provided
in the Agreement, the right to purchase all Mortgage Loans pursuant to clause
(a) above shall be conditioned upon the unpaid Principal Balances of such
Mortgage Loans, at the time of any such repurchase, aggregating less than 10%
of the aggregate Principal Balances thereof as of the Cut-off Date.
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 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 Trustee. The 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, any Mortgage Loan or any related document.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
U.S. BANK NATIONAL ASSOCIATION, solely
as Trustee and not individually
By:
----------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date: December __, 2000
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_________________________________________
Authorized Officer
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 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 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.
EXHIBIT B
FORM OF CLASS M CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. OR THE TRUSTEE REFERRED TO
BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-WM2, CLASS [M--1][M-2][M-3]
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP _______ Initial Aggregate Class
[M-1][M-2][M-3] Certificate
Principal Balance: $_______
Certificate No. Pass-Through Rate: ____% Initial Certificate Principal
Balance Of This Certificate:
$-----------
First Distribution Date: Final Scheduled
__________________ Distribution Date: __________
THIS CERTIFIES THAT [______________] is the registered owner of a
beneficial interest in the Trust Fund referred to below consisting of a pool
of fixed-rate conventional mortgage loans secured by first liens on one- to
four-family residential real properties (the "Mortgage Loans") and certain
other property held in trust transferred to the Trust Fund by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"), and certain related
property. The Trust Fund was created pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 2000 (the "Agreement"), among the
Depositor, U.S. Bank National Association, as trustee (the "Trustee", which
term includes any successor entity under the Agreement), Washington Mutual
Bank fsb, as a seller, Washington Mutual Bank, as a seller, and Washington
Mutual Bank, FA, as a seller and servicer, 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.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Mortgage-Backed Pass-Through Certificates, Series 2000-WM2 (the
"Certificates"), which is comprised of the following ten Classes: Class A,
Class P, Class S, Class R, Class M-1, Class M-2, Class M-3, Class B-1, Class
B-2, Class B-3. Reference is hereby made to the Agreement for a statement of
the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Mortgage
Loans and all distributions thereon payable after the Cut-off Date, net of
certain amounts in accordance with the provisions of the Agreement, (ii) the
Certificate Account and the Custodial Account and all amounts deposited
therein pursuant to the applicable provisions of the Agreement, net of any
investment earnings thereon, (iii) the interest of the Trust Fund in any
insurance policies with respect to the Mortgage Loans, (iv) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
This Class [M-1][M-2][M-3] 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
[M-1][M-2][M-3] Certificates, both as set forth above.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 21st day of each calendar month, or, if such
21st day is not a Business Day, the Business Day immediately following such
21st day (each, a "Distribution Date"), commencing December 21, 2000, 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"), a principal amount equal to the product
of the Percentage Interest evidenced by this Certificate and that portion of
the Available Distribution Amount that is allocated to principal on such Class
of Certificates on such Distribution Date.
Distributions of interest will be made on each Distribution Date, to
the extent of available funds, in an amount equal to the Interest Distribution
Amount as further described in the Agreement.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the 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 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 as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Sellers, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor and the
Trustee with the consent of the Holders of Certificates evidencing Voting
Rights aggregating not less than 66-2/3% of the Voting Rights of all the
Certificates; provided, however, that no such amendment may (i) reduce in any
manner the amount of, delay the timing of or change the manner in which
payments received on Mortgage Loans are required to be distributed in respect
of any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of a
Class of Certificates in a manner other than in (i) above without the consent
of the Holders of Certificates evidencing not less than 66-2/3% of the Voting
Rights of such Class and (iii) reduce the aforesaid percentages of Voting
Rights, the holders of which are required to consent to any such amendment,
without the consent of 100% of the Holders of Certificates of the Class
affected thereby. 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, the
Sellers, the Servicer and the Trustee to amend certain terms and conditions
set forth in the Agreement without the consent of Holders of the Certificates.
At any time that any of the Certificates are outstanding, 98% percent of all
Voting Rights will be allocated to the Holders of the Certificates (other than
the Class R Certificates and the Class S Certificates), in proportion to their
then outstanding Certificate Principal Balances, 1% of all Voting Rights will
be allocated to the Holders of the Class S Certificates and 1% of all Voting
Rights will be allocated to the Holders of the Class R 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 Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the 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 Fund will be issued to the designated
transferee or transferees.
The Class [M-1][M-2][M-3] 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; provided,
however, that one Certificate of each Class may be issued in such other amount
as is required so that the aggregate of each Class of Certificates equals its
respective aggregate Certificate Principal Balance. 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 Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Trustee and any agent of the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee nor any such agent thereof shall be affected by notice to the
contrary.
The obligations and responsibilities of the Depositor and the Trustee
created by the Agreement will terminate upon the earlier of (a) the purchase
by the Majority Class R Holder from the Trust Fund of all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans, thereby
effecting early retirement of the Certificates, or (b) the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan. As provided
in the Agreement, the right to purchase all Mortgage Loans pursuant to clause
(a) above shall be conditioned upon the unpaid Principal Balances of such
Mortgage Loans, at the time of any such repurchase, aggregating less than 10%
of the aggregate Principal Balances thereof as of the Cut-off Date.
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 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 Trustee. The 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, any Mortgage Loan or any related document.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
U.S. BANK NATIONAL ASSOCIATION, solely
as Trustee and not individually
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date: December __, 2000
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------------
Authorized Officer
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 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 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.
EXHIBIT C
[Reserved]
EXHIBIT D
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. OR THE TRUSTEE REFERRED TO
BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE
COMPANY, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.
MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-WM2, [CLASS B--__]
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP ________ Initial Aggregate Class [B-_]
Certificate Principal Balance:
$-------------
Certificate No. Pass-Through Rate: ___% Initial Certificate Principal
Balance Of This Certificate:
$------------
First Distribution Final Scheduled
Date: Distribution Date:
THIS CERTIFIES THAT [_________________] is the registered owner of a
beneficial interest in the Trust Fund referred to below consisting of a pool
of fixed-rate conventional mortgage loans secured by first liens on one- to
four-family residential real properties (the "Mortgage Loans") and certain
other property held in trust transferred to the Trust Fund by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"), and certain related
property. The Trust Fund was created pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 2000 (the "Agreement"), among the
Depositor, U.S. Bank National Association, as trustee (the "Trustee", which
term includes any successor entity under the Agreement), Washington Mutual
Bank fsb, as a seller, Washington Mutual Bank, as a seller, and Washington
Mutual Bank, FA, as a seller and servicer, 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.
No transfer of this Certificate shall be made unless that transfer is
made pursuant to an effective registration statement under the Act and
effective registration or qualification under applicable state securities
laws, or is made in a transaction which does not require such registration or
qualification. In the event that a transfer, other than the initial transfer,
is to be made without registration or qualification, (i) the Trustee shall
require, in order to assure compliance with such laws, that the
Certificateholder desiring to effect the transfer and such Certificateholder's
prospective transferee each certify to the Trustee in writing the facts
surrounding the transfer and (ii) the Depositor or the Trustee shall require
an opinion of counsel reasonably satisfactory to the requesting party that
such transfer may be made without such registration or qualification, which
Opinion of Counsel shall not be required to be an expense of the Depositor or
the Trustee. Neither the Depositor nor the Trustee is obligated to register or
qualify any Certificates under the Act or any other securities law or to take
any action not otherwise required under this Agreement to permit the transfer
of such Certificate or interest without registration or qualification. Any
such Holder desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result
if the transfer is not so exempt, or is not made in accordance with federal
and state laws.
No transfer of this Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such transfer, which representation letter
shall not be an expense of the Trustee or the Trust Fund, (ii) if the
purchaser is an insurance company, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained
in an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificates are covered under PTCE 95-60 or
(iii) in the case of any such Certificate presented for registration in the
name of an employee benefit plan subject to ERISA, or Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or
arrangement, or using such plan's or arrangement's assets, an Opinion of
Counsel satisfactory to the Trustee to the effect that the purchase or holding
of such Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee or the
Servicer to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Trustee or the Trust
Fund. Notwithstanding anything else to the contrary herein, any purported
transfer of this Certificate to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the Opinion of Counsel satisfactory to
the Trustee as described above shall be void and of no effect.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Mortgage-Backed Pass-Through Certificates, Series 2000-WM2 (the
"Certificates"), which is comprised of the following ten Classes: Class A,
Class P, Class S, Class R, Class M-1, Class M-2, Class M-3, Class B-1, Class
B-2, Class B-3. Reference is hereby made to the Agreement for a statement of
the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Mortgage
Loans and all distributions thereon payable after the Cut-off Date, net of
certain amounts in accordance with the provisions of the Agreement, (ii) the
Certificate Account and the Custodial Account and all amounts deposited
therein pursuant to the applicable provisions of the Agreement, net of any
investment earnings thereon, (iii) the interest of the Trust Fund in any
insurance policies with respect to the Mortgage Loans, (iv) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
This Class [B-_] 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 [B-_] Certificates,
both as set forth above.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 21st day of each calendar month, or, if such
21st day is not a Business Day, the Business Day immediately following such
21st day (each, a "Distribution Date"), commencing December 21, 2000, 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"), a principal amount equal to the product
of the Percentage Interest evidenced by this Certificate and that portion of
the Available Distribution Amount that is allocated to principal on such Class
of Certificates on such Distribution Date.
Distributions of interest will be made on each Distribution Date, to
the extent of available funds, in an amount equal to the Interest Distribution
Amount as further described in the Agreement.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the 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 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 as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Sellers, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor and the
Trustee with the consent of the Holders of Certificates evidencing Voting
Rights aggregating not less than 66-2/3% of the Voting Rights of all the
Certificates; provided, however, that no such amendment may (i) reduce in any
manner the amount of, delay the timing of or change the manner in which
payments received on Mortgage Loans are required to be distributed in respect
of any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of a
Class of Certificates in a manner other than in (i) above without the consent
of the Holders of Certificates evidencing not less than 66-2/3% of the Voting
Rights of such Class and (iii) reduce the aforesaid percentages of Voting
Rights, the holders of which are required to consent to any such amendment,
without the consent of 100% of the Holders of Certificates of the Class
affected thereby. 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, the
Sellers, the Servicer and the Trustee to amend certain terms and conditions
set forth in the Agreement without the consent of Holders of the Certificates.
At any time that any of the Certificates are outstanding, 98% percent of all
Voting Rights will be allocated to the Holders of the Certificates (other than
the Class R Certificates and the Class S Certificates), in proportion to their
then outstanding Certificate Principal Balances, 1% of all Voting Rights will
be allocated to the Holders of the Class S Certificates and 1% of all Voting
Rights will be allocated to the Holders of the Class R 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 Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the 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 Fund will be issued to the designated
transferee or transferees.
The Class [B-_] Certificates will be issued in fully registered form
in minimum denominations of $100,000 Certificate Principal Balance and in
integral multiples of $1 in excess of such amount; provided, however, that one
Certificate of each Class may be issued in such other amount as is required so
that the aggregate of each Class of Certificates equals its respective
aggregate Certificate Principal Balance. 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 Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Trustee and any agent of the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee nor any such agent thereof shall be affected by notice to the
contrary.
The obligations and responsibilities of the Depositor and the Trustee
created by the Agreement will terminate upon the earlier of (a) the purchase
by the Majority Class R Holder from the Trust Fund of all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans, thereby
effecting early retirement of the Certificates, or (b) the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan. As provided
in the Agreement, the right to purchase all Mortgage Loans pursuant to clause
(a) above shall be conditioned upon the unpaid Principal Balances of such
Mortgage Loans, at the time of any such repurchase, aggregating less than 10%
of the aggregate Principal Balances thereof as of the Cut-off Date.
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 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 Trustee. The 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, any Mortgage Loan or any related document.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
U.S. BANK NATIONAL ASSOCIATION, solely as
Trustee and not individually
By:_____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date: December __, 2000
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _______________________________
Authorized Officer
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 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 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.
EXHIBIT E
FORM OF CLASS S CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. OR THE TRUSTEE REFERRED TO
BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
THE YIELD TO MATURITY ON THIS CERTIFICATE WILL BE EXTREMELY SENSITIVE TO THE
RATE AND TIMING OF PAYMENTS (INCLUDING PREPAYMENTS) ON THE MORTGAGE LOANS.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-WM2, CLASS S
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Certificate No. Initial Aggregate Class S
Notional Amount:
$____________
First Distribution Date: Initial Class S Notional Amount Of
This Certificate:
______________
Final Scheduled Pass-Through Rate: 7.75%
Distribution Date:
THIS CERTIFIES THAT [_________________] is the registered owner of a
beneficial interest in the Trust Fund referred to below consisting of a pool
of fixed-rate conventional mortgage loans secured by first liens on one- to
four-family residential real properties (the "Mortgage Loans") and certain
other property held in trust transferred to the Trust Fund by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"), and certain related
property. The Trust Fund was created pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 2000 (the "Agreement"), among the
Depositor, U.S. Bank National Association, as trustee (the "Trustee", which
term includes any successor entity under the Agreement), Washington Mutual
Bank fsb, as a seller, Washington Mutual Bank, as a seller, and Washington
Mutual Bank, FA, as a seller and servicer, 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.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Mortgage-Backed Pass-Through Certificates, Series 2000-WM2 (the
"Certificates"), which is comprised of the following ten Classes: Class A,
Class P, Class S, Class R, Class M-1, Class M-2, Class M-3, Class B-1, Class
B-2, Class B-3. Reference is hereby made to the Agreement for a statement of
the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Mortgage
Loans and all distributions thereon payable after the Cut-off Date, net of
certain amounts in accordance with the provisions of the Agreement, (ii) the
Certificate Account and the Custodial Account and all amounts deposited
therein pursuant to the applicable provisions of the Agreement, net of any
investment earnings thereon, (iii) the interest of the Trust Fund in any
insurance policies with respect to the Mortgage Loans, (iv) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
This Class S Certificate represents the right to receive a portion of
interest with respect to the Mortgage Loans on a Distribution Date. This Class
S Certificate is not entitled to any distributions with respect to principal
on the Mortgage Loans in the Trust Fund.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 21st day of each calendar month, or, if such
21st day is not a Business Day, the Business Day immediately following such
21st day (each, a "Distribution Date"), commencing December 21, 2000, 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 interest amount equal to the product
of the Percentage Interest evidenced by this Certificate and that portion of
the Interest Distribution Amount that is allocated to such Class of
Certificates on such Distribution Date.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the 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 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 as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Sellers, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor and the
Trustee with the consent of the Holders of Certificates evidencing Voting
Rights aggregating not less than 66-2/3% of the Voting Rights of all the
Certificates; provided, however, that no such amendment may (i) reduce in any
manner the amount of, delay the timing of or change the manner in which
payments received on Mortgage Loans are required to be distributed in respect
of any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of a
Class of Certificates in a manner other than in (i) above without the consent
of the Holders of Certificates evidencing not less than 66-2/3% of the Voting
Rights of such Class and (iii) reduce the aforesaid percentages of Voting
Rights, the holders of which are required to consent to any such amendment,
without the consent of 100% of the Holders of Certificates of the Class
affected thereby. 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, the
Sellers, the Servicer and the Trustee to amend certain terms and conditions
set forth in the Agreement without the consent of Holders of the Certificates.
At any time that any of the Certificates are outstanding, 98% percent of all
Voting Rights will be allocated to the Holders of the Certificates (other than
the Class R Certificates and the Class S Certificates), in proportion to their
then outstanding Certificate Principal Balances, 1% of all Voting Rights will
be allocated to the Holders of the Class S Certificates and 1% of all Voting
Rights will be allocated to the Holders of the Class R 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 Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the 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 Fund will be issued to the designated
transferee or transferees.
The Class S Certificates will be issued in fully registered form in
minimum Percentage Interests of 20% and integral multiples thereof. 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 Percentage Interests evidencing a like
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for such registrations of transfers or
exchanges, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Trustee and any agent of the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee nor any such agent thereof shall be affected by notice to the
contrary.
The obligations and responsibilities of the Depositor and the Trustee
created by the Agreement will terminate upon the earlier of (a) the purchase
by the Majority Class R Holder from the Trust Fund of all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans, thereby
effecting early retirement of the Certificates, or (b) the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan. As provided
in the Agreement, the right to purchase all Mortgage Loans pursuant to clause
(a) above shall be conditioned upon the unpaid Principal Balances of such
Mortgage Loans, at the time of any such repurchase, aggregating less than 10%
of the aggregate Principal Balances thereof as of the Cut-off Date.
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 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 Trustee. The 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, any Mortgage Loan or any related document.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
U.S. BANK NATIONAL ASSOCIATION, solely as
Trustee and not individually
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
Date: December __, 2000
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________
Authorized Officer
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 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 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.
EXHIBIT F
FORM OF CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. OR THE TRUSTEE REFERRED TO
BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "PRINCIPAL ONLY" CERTIFICATE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS OF INTEREST.
MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-WM2, CLASS P
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Certificate No. Initial Aggregate Class P
Certificate Principal Balance:
$------
First Distribution Date: Initial Class P Certificate
Principal Balance Of This
Certificate: $_______
Final Scheduled Pass-Through Rate: 0.00%
Distribution Date:
THIS CERTIFIES THAT [__________________] is the registered owner of a
beneficial interest in the Trust Fund referred to below consisting of a pool
of fixed-rate conventional mortgage loans secured by first liens on one- to
four-family residential real properties (the "Mortgage Loans") and certain
other property held in trust transferred to the Trust Fund by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"), and certain related
property. The Trust Fund was created pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 2000 (the "Agreement"), among the
Depositor, U.S. Bank National Association, as trustee (the "Trustee", which
term includes any successor entity under the Agreement), Washington Mutual
Bank fsb, as a seller, Washington Mutual Bank, as a seller, and Washington
Mutual Bank, FA, as a seller and servicer, 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.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Mortgage-Backed Pass-Through Certificates, Series 2000-WM2 (the
"Certificates"), which is comprised of the following ten Classes: Class A,
Class P, Class S, Class R, Class M-1, Class M-2, Class M-3, Class B-1, Class
B-2, Class B-3. Reference is hereby made to the Agreement for a statement of
the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Mortgage
Loans and all distributions thereon payable after the Cut-off Date, net of
certain amounts in accordance with the provisions of the Agreement, (ii) the
Certificate Account and the Custodial Account and all amounts deposited
therein pursuant to the applicable provisions of the Agreement, net of any
investment earnings thereon, (iii) the interest of the Trust Fund in any
insurance policies with respect to the Mortgage Loans, (iv) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
This Class P Certificate represents the right to receive a portion of
principal with respect to the Class P Mortgage Loans on a Distribution Date.
This Class P Certificate is not entitled to any distributions with respect to
interest on the Mortgage Loans in the Trust Fund.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 21st day of each calendar month, or, if such
21st day is not a Business Day, the Business Day immediately following such
21st day (each, a "Distribution Date"), commencing December 21, 2000, 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"), a principal amount equal to the product
of the Percentage Interest evidenced by this Certificate and that portion of
the Class P Principal Distribution Amount that is allocated to principal on
such Class of Certificates on such Distribution Date.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
Distributions on this Certificate will be made by the 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 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 as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Sellers, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor and the
Trustee with the consent of the Holders of Certificates evidencing Voting
Rights aggregating not less than 66-2/3% of the Voting Rights of all the
Certificates; provided, however, that no such amendment may (i) reduce in any
manner the amount of, delay the timing of or change the manner in which
payments received on Mortgage Loans are required to be distributed in respect
of any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of a
Class of Certificates in a manner other than in (i) above without the consent
of the Holders of Certificates evidencing not less than 66-2/3% of the Voting
Rights of such Class and (iii) reduce the aforesaid percentages of Voting
Rights, the holders of which are required to consent to any such amendment,
without the consent of 100% of the Holders of Certificates of the Class
affected thereby. 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, the
Sellers, the Servicer and the Trustee to amend certain terms and conditions
set forth in the Agreement without the consent of Holders of the Certificates.
At any time that any of the Certificates are outstanding, 98% percent of all
Voting Rights will be allocated to the Holders of the Certificates (other than
the Class R Certificates and the Class S Certificates), in proportion to their
then outstanding Certificate Principal Balances, 1% of all Voting Rights will
be allocated to the Holders of the Class S Certificates and 1% of all Voting
Rights will be allocated to the Holders of the Class R 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 Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the 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 Fund will be issued to the designated
transferee or transferees.
The Class P 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; provided, however, that one
Certificate of each Class may be issued in such other amount as is required so
that the aggregate of each Class of Certificates equals its respective
aggregate Certificate Principal Balance. 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 Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Trustee and any agent of the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee nor any such agent thereof shall be affected by notice to the
contrary.
The obligations and responsibilities of the Depositor and the Trustee
created by the Agreement will terminate upon the earlier of (a) the purchase
by the Majority Class R Holder from the Trust Fund of all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans, thereby
effecting early retirement of the Certificates, or (b) the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan. As provided
in the Agreement, the right to purchase all Mortgage Loans pursuant to clause
(a) above shall be conditioned upon the unpaid Principal Balances of such
Mortgage Loans, at the time of any such repurchase, aggregating less than 10%
of the aggregate Principal Balances thereof as of the Cut-off Date.
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 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 Trustee. The 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, any Mortgage Loan or any related document.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
U.S. BANK NATIONAL ASSOCIATION, solely as
Trustee and not individually
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date: December __, 2000
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Officer
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 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 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.
EXHIBIT G
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED
STATES PERSON.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. OR THE TRUSTEE REFERRED TO
BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
ANY SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
TRUSTEE TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH
TRANSFEREE IS NOT EITHER (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION,
OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION
(OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE, (C) ANY ORGANIZATION
DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION") OR (D) AN AGENT OF A DISQUALIFIED ORGANIZATION,
AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN
REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE
COMPANY, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.
MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-WM2, CLASS R
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Certificate No. PERCENTAGE INTEREST
REPRESENTED BY THIS
CERTIFICATE _____%
First Date: Final Scheduled
Distribution Date:
THIS CERTIFIES THAT [_____________________________] is the registered
owner of a beneficial interest in the Trust Fund referred to below consisting
of 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 held in trust transferred to the Trust Fund
by Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor"), and
certain related property. The Trust Fund was created pursuant to the Pooling
and Servicing Agreement, dated as of November 1, 2000 (the "Agreement"), among
the Depositor, U.S. Bank National Association, as trustee (the "Trustee",
which term includes any successor entity under the Agreement), Washington
Mutual Bank fsb, as a seller, Washington Mutual Bank, as a seller, and
Washington Mutual Bank, FA, as a seller and servicer, 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.
No transfer of this Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of any such plan or arrangement or using the assets of any
such plan or arrangement to effect such transfer, which representation letter
shall not be an expense of the Trustee or the Trust Fund, (ii) if the
purchaser is an insurance company, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained
in an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificates are covered under PTCE 95-60 or
(iii) in the case of any such Certificate presented for registration in the
name of an employee benefit plan subject to ERISA, or Section 4975 of the Code
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or
arrangement, or using such plan's or arrangement's assets, an Opinion of
Counsel satisfactory to the Trustee to the effect that the purchase or holding
of such Certificate will not result in the assets of the Trust Fund being
deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee or the
Servicer to any obligation in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Trustee or the Trust
Fund. Notwithstanding anything else to the contrary herein, any purported
transfer of this Certificate to or on behalf of an employee benefit plan
subject to ERISA or to the Code without the Opinion of Counsel satisfactory to
the Trustee as described above shall be void and of no effect.
This Certificate is one of a duly authorized issue of certificates by
Credit Suisse First Boston Mortgage Securities Corp. designated as the
Mortgage-Backed Pass-Through Certificates, Series 2000-WM2 (the
"Certificates"), which is comprised of the following ten Classes: Class A,
Class P, Class S, Class R, Class M-1, Class M-2, Class M-3, Class B-1, Class
B-2, Class B-3. Reference is hereby made to the Agreement for a statement of
the respective rights thereunder of the Depositor and the Trustee and the
Holders of the Certificates and the terms upon which the Certificates are
authenticated and delivered. This Certificate represents an interest in the
Trust Fund, which Trust Fund consists of, among other things, (i) the Mortgage
Loans and all distributions thereon payable after the Cut-off Date, net of
certain amounts in accordance with the provisions of the Agreement, (ii) the
Certificate Account and the Custodial Account and all amounts deposited
therein pursuant to the applicable provisions of the Agreement, net of any
investment earnings thereon, (iii) the interest of the Trust Fund in any
insurance policies with respect to the Mortgage Loans, (iv) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing into cash or
other liquid property.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 21st day of each calendar month, or, if such
21st day is not a Business Day, the Business Day immediately following such
21st day (each, a "Distribution Date"), commencing December 21, 2000, 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"), a principal amount equal to the product
of the Percentage Interest evidenced by this Certificate and that portion of
the Available Distribution Amount that is allocated to principal on such Class
of Certificates on such Distribution Date.
This Class R Certificate is entitled to distributions of principal
and interest in respect of principal or interest on the Mortgage Loans in the
Trust Fund in accordance with the terms of the Agreement.
Not later than each Distribution Date, the Trustee will send to each
Certificateholder a statement containing information relating to the Mortgage
Loans and payments made to Certificateholders.
The Agreement permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor, the Sellers, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor and the
Trustee with the consent of the Holders of Certificates evidencing Voting
Rights aggregating not less than 66-2/3% of the Voting Rights of all the
Certificates; provided, however, that no such amendment may (i) reduce in any
manner the amount of, delay the timing of or change the manner in which
payments received on Mortgage Loans are required to be distributed in respect
of any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of a
Class of Certificates in a manner other than in (i) above without the consent
of the Holders of Certificates evidencing not less than 66-2/3% of the Voting
Rights of such Class and (iii) reduce the aforesaid percentages of Voting
Rights, the holders of which are required to consent to any such amendment,
without the consent of 100% of the Holders of Certificates of the Class
affected thereby. 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, the
Sellers, the Servicer and the Trustee to amend certain terms and conditions
set forth in the Agreement without the consent of Holders of the Certificates.
At any time that any of the Certificates are outstanding, 98% percent of all
Voting Rights will be allocated to the Holders of the Certificates (other than
the Class R Certificates and the Class S Certificates), in proportion to their
then outstanding Certificate Principal Balances, 1% of all Voting Rights will
be allocated to the Holders of the Class S Certificates and 1% of all Voting
Rights will be allocated to the Holders of the Class R 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 Certificate for registration of
transfer at the office or agency of the Trustee designated therefor, duly
endorsed by, or accompanied by a written instrument of transfer in a form
satisfactory to the 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 Fund will be issued to the designated
transferee or transferees.
The Class R Certificates will be issued in fully registered form in
minimum Percentage Interests of 20% and integral multiples thereof. 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 Percentage Interests evidencing a like
aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for such registrations of transfers or
exchanges, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Trustee and any agent of the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee nor any such agent thereof shall be affected by notice to the
contrary.
Pursuant to the Agreement, the Depositor will make an election to
treat the Trust as a single real estate mortgage investment conduit (a
"REMIC") for federal income tax purposes. The Class R Certificates will be the
"residual interest" in the REMIC, and all other Classes of Certificates will
constitute the "regular interests" in the REMIC.
The obligations and responsibilities of the Depositor and the Trustee
created by the Agreement will terminate upon the earlier of (a) the purchase
by the Majority Class R Holder from the Trust Fund of all remaining Mortgage
Loans and all property acquired in respect of such Mortgage Loans, thereby
effecting early retirement of the Certificates, or (b) the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan. As provided
in the Agreement, the right to purchase all Mortgage Loans pursuant to clause
(a) above shall be conditioned upon the unpaid Principal Balances of such
Mortgage Loans, at the time of any such repurchase, aggregating less than 10%
of the aggregate Principal Balances thereof as of the Cut-off Date.
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 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 Trustee. The 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, any Mortgage Loan or any related document.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
U.S. BANK NATIONAL ASSOCIATION, solely as
Trustee and not individually
By: ___________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Agreement.
Date: December __, 2000
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------------
Authorized Signatory
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 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 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.
EXHIBIT H
SCHEDULE OF MORTGAGE LOANS
EXHIBIT I
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[_________________, 200_]
Credit Suisse First Boston Mortgage Securities Corp.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Washington Mutual Bank, ▇▇
▇▇▇▇▇▇▇▇▇▇ Mutual Bank fsb
Washington Mutual Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Mortgage-Backed Pass-Through
Certificates, Series 2000-WM2
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the Pooling and Servicing Agreement, the undersigned, as Trustee, hereby
certifies that, except for the exceptions noted on the schedule attached
hereto, it has (a) received an original Mortgage Note with respect to each
Mortgage Loan listed on the Mortgage Loan Schedule and (b) received an
original Mortgage (or a certified copy thereof) with respect to each Mortgage
Loan listed on the Mortgage Loan Schedule in accordance with Section 2.01 of
the Pooling and Servicing Agreement. The Trustee has made no independent
examination of any documents contained in each Mortgage File beyond the review
specifically mentioned above. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the documents delivered in accordance with Section 2.01 of the Pooling and
Servicing Agreement or any of the Mortgage Loans identified in the Mortgage
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized terms used herein without definition shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:__________________________________
Authorized Representative
EXHIBIT J
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Washington Mutual Bank, ▇▇
▇▇▇▇▇▇▇▇▇▇ Mutual Bank fsb
Washington Mutual Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Mortgage-Backed Pass-Through
Certificates, Series 2000-WM2
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the above-referenced Pooling and Servicing Agreement the undersigned, as
Trustee, hereby certifies that, except for the exceptions noted on the
schedule attached hereto, as to each Mortgage Loan listed in the Mortgage Loan
Schedule it has reviewed the Mortgage File and has determined that (based
solely on its review of each such documents on its face) (i) all documents
described in clauses (i)-(v) of Section 2.01 of the Pooling and Servicing
Agreement are in its possession, (ii) such documents have been reviewed by it
and have not been mutilated, damaged, defaced, torn or otherwise physically
altered and such documents relate to such Mortgage Loan and (iii) each
Mortgage Note has been endorsed and each assignment of Mortgage has been
delivered as provided in Section 2.01 of the Pooling and Servicing Agreement.
The Trustee has made no independent examination of any documents required to
be delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement beyond the review specifically required therein. The Trustee makes
no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents required to be delivered
in accordance with Section 2.01 of the Pooling and Servicing Agreement or any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized terms used herein without definition have the meanings
ascribed to them in the Pooling and Servicing Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Representative
EXHIBIT K
FORM OF REQUEST FOR RELEASE
[date]
To: U.S. Bank National Association
In connection with the administration of the Mortgage Loans
held by you as Trustee under the Pooling and Servicing Agreement dated as of
November 1, 2000, between Credit Suisse First Boston Mortgage Securities
Corp., as Depositor, Washington Mutual Bank fsb, as a seller, Washington
Mutual Bank, as a seller, Washington Mutual Bank, FA, as a seller and
servicer, and you, as Trustee (the "Pooling and Servicing Agreement"), the
undersigned hereby requests a release of the Mortgage File held by you as
Trustee with respect to the following described Mortgage Loan for the reason
indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received
in connection with the Mortgage Loan have been or will
be credited to the Custodial Account pursuant to the
Pooling and Servicing Agreement.)
____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price
has been credited to the Custodial Account pursuant to
the Pooling and Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned, except if the Mortgage Loan has been
paid in full or repurchased (in which case the Mortgage File will be retained
by us permanently) when no longer required by us for such purpose.
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
WASHINGTON MUTUAL BANK, FA
By: ________________________________
Name:
Title:
EXHIBIT L
FORM OF INVESTOR REPRESENTATION LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10010
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Mortgage-Backed Pass-Through Certificates, Series 2000-WM2
Ladies and Gentlemen:
[ ________________________________________ ] (the "Purchaser")
intends to purchase the Mortgage-Backed Pass-Through Certificates, Series
2000-WM2 [Class B-__] (together, the "Certificates"), issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of November 1, 2000 among Credit Suisse First Boston Mortgage Securities
Corp., as Depositor (the "Company"), Washington Mutual Bank fsb, as a seller,
Washington Mutual Bank, as a seller, Washington Mutual Bank, FA, as a seller
and servicer, and U.S. Bank National Association, as trustee (the "Trustee").
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Purchaser hereby certifies,
represents and warrants to, and covenants with, the Company and the Trustee
that:
1. The Purchaser understands that (a) the Certificates have
not been and will not be registered or qualified under the Securities Act of
1933, as amended (the "Act") or any state securities law, (b) the Company is
not required to so register or qualify the Certificates, (c) the Certificates
may be resold only if registered and qualified pursuant to the provisions of
the Act or any state securities law, or if an exemption from such registration
and qualification is available, (d) the Pooling and Servicing Agreement
contains restrictions regarding the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in connection
with any distribution thereof in any manner that would violate the Act or any
applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters, and, in particular, in such matters related to securities similar to
the Certificates, such that it is capable of evaluating the merits and risks
of investment in the Certificates, (b) able to bear the economic risks of such
an investment and (c) either (i) a "qualified institutional buyer" within the
meaning of Rule 144A under the rules and regulations of the Securities and
Exchange Commission under the Act or (ii) an "accredited investor" within the
meaning of Rule 501(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity
to review (a) a copy of the Pooling and Servicing Agreement and (b) such other
information concerning the Certificates, the Mortgage Loans and the Company as
has been requested by the Purchaser from the Company or the Seller and is
relevant to the Purchaser's decision to purchase the Certificates. The
Purchaser has had any questions arising from such review answered by the
Company or the Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it authorized or will
it authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicit any offer to buy or to
accept a pledge, disposition of other transfer of any Certificate, any
interest in any Certificate or any other similar security from any person in
any manner, (c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) make any general solicitation by means of
general advertising or in any other manner or (e) take any other action, that
(as to any of (a) through (e) above) would constitute a distribution of any
Certificate under the Act, that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities law,
or that would require registration or qualification pursuant thereto. The
Purchaser will not sell or otherwise transfer any of the Certificates, except
in compliance with the provisions of the Pooling and Servicing Agreement.
6. The Purchaser
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code") (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate
with "plan assets" of any Plan; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within
the meaning of Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Section III of PTCE 95-60.
Very truly yours,
[Purchaser]
By:____________________________
Name:
Title:
EXHIBIT M
FORM OF TRANSFEROR REPRESENTATION LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
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U.S. Bank National Association
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Re: Mortgage-Backed Pass-Through Certificates, Series 2000-WM2
Ladies and Gentlemen:
In connection with the sale by [_____________________ ] (the
"Seller") to [ ______________________________________________ ] ____ (the
"Purchaser") the Mortgage-Backed Pass-Through Certificates, Series 2000-WM2
[Class B- _____ ] (together, the "Certificates"), issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of November 1, 2000 among Credit Suisse First Boston Mortgage Securities
Corp., as Depositor (the "Company"), Washington Mutual Bank fsb, as a seller,
Washington Mutual Bank, as a seller, Washington Mutual Bank, FA, as a seller
and servicer, and U.S. Bank National Association, as trustee (the "Trustee"),
the Seller hereby certifies, represents and warrants to, and covenants with,
the Company and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition
or other transfer of any Certificate, any interest in any Certificate or any
other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any manner, (d)
has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a)
through (e) above) would constitute a distribution of the Certificates under
the Securities Act of 1933 (the "Act"), that would render the disposition of
any Certificate a violation of Section 5 of the Act or any state securities
law, or that would require registration or qualification pursuant thereto. The
Seller will not act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Seller has not and will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions of
the Pooling and Servicing Agreement.
Very truly yours,
[Seller]
By: ____________________________
Name:
Title:
EXHIBIT N
FORM OF INVESTOR TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] or [Name of Owner] (record or
beneficial owner (the "Owner") of the Class R Certificates (the "Class R
Certificates")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of _____________________________ ] [the
United States], on behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code"), (ii)
will endeavor to remain other than a disqualified organization for so long as
it retains its ownership interest in the Class R Certificates, and (iii) is
acquiring the Class R Certificates for its own account or for the account of
another Owner from which it has received an affidavit and agreement in
substantially the same form as this affidavit and agreement. A "Permitted
Transferee" is any person other than a "disqualified organization". (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R Certificates to disqualified organizations under the
Code; (ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class R Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, if a significant purpose of
the transfer was to enable the transferor to impede the assessment or
collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class R Certificates if at any time during the taxable year of
the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the
Transfer of any Class R Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it
knows or believes that any of the representations contained in such affidavit
and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face
of the Class R Certificates and the provisions of Section 6.02 of the Pooling
and Servicing Agreement under which the Class R Certificates were issued. The
Owner expressly agrees to be bound by and to comply with such restrictions and
provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class R Certificates
will only be owned, directly or indirectly, by an Owner that is a Permitted
Transferee.
8. That the Owner's Taxpayer Identification Number is .
9. That the Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any State thereof or the District of Columbia, or
an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
10. That no purpose of the Owner relating to the purchase of the
Class R Certificate by the Owner is or will be to impede the assessment or
collection of tax.
11. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that it
will become insolvent or subject to a bankruptcy proceeding for so long as any
of the Certificates remain outstanding.
13. That no purpose of the Owner relating to any sale of the Class R
Certificate by the Owner will be to impede the assessment or collection of
tax.
14. The Owner hereby agrees to cooperate with the Trustee and to take
any action required of it by the Code or Treasury regulations thereunder
(whether now or hereafter promulgated) in order to create or maintain the
REMIC status of the Trust Fund.
15. That the Owner
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code") (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate
with "plan assets" of any Plan; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within
the meaning of Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Section III of PTCE 95-60.
16. The Owner hereby agrees that it will not take any action that
could endanger the REMIC status of the Trust Fund or result in the imposition
of tax on the Trust Fund unless counsel for, or acceptable to, the Trustee has
provided an opinion that such action will not result in the loss of such REMIC
status or the imposition of such tax, as applicable.
17. The Owner has provided financial statements or other financial
information requested by the transferor in connection with the transfer of the
Residual Certificates to permit the transferor to assess the financial
capability of the Owner to pay any such taxes.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors,
by its [Title of Officer] and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ____ day of ___________.
[NAME OF OWNER]
By:__________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
____________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to
me that he executed the same as his free act and deed and the free act and
deed of the Owner.
Subscribed and sworn before me this _____ day of
_______________________.
___________________________________
NOTARY PUBLIC
COUNTY OF _________________________
STATE OF____________________________
My Commission expires the _____day of
____________________________, 20_____.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
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Re: Mortgage-Backed Pass-Through Certificates, Series 2000-WM2,
Class R (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
_________________ (the "Seller") to ____________________________________ (the
"Purchaser") of a _______% Percentage Interest in the above referenced
Certificates, pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 2000 among
Credit Suisse First Boston Mortgage Securities Corp. as depositor (the
"Depositor"), U.S. Bank National Association, as trustee (the "Trustee")
Washington Mutual Bank fsb, as a seller, Washington Mutual Bank, as a seller,
and Washington Mutual Bank, FA, as a seller and servicer. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Seller hereby certifies, represents and
warrants to, and covenants with, the Depositor and the Trustee that:
1. No purpose of the Seller relating to sale of the Certificate by
the Seller to the Purchaser is or will be to enable the Seller to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to
the Trustee a transfer affidavit and agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit K. The Seller does not know or
believe that any representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee is
not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificate.
5. The Seller has conducted a reasonable investigation of the
financial condition of the Purchaser and, as a result of the investigation,
found that the Purchaser has historically paid its debts as they came due, and
found no significant evidence to indicate that the Purchaser will not continue
to pay its debts as they come due in the future.
6. The Purchaser has represented to the Seller that, if the
Certificate constitutes a noneconomic residual interest, it (i) understands
that as holder of a noneconomic residual interest it may incur tax liabilities
in excess of any cash flows generated by the interest, and (ii) intends to pay
taxes associated with its holding of the Certificate as they become due.
Very truly yours,
[SELLER]
By: ______________________________
Name:
Title: