B&W Draft
November 27, 2000
==============================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
CENDANT MORTGAGE CORPORATION,
Seller and Servicer,
BISHOP'S GATE RESIDENTIAL MORTGAGE TRUST,
Seller,
and
THE BANK OF NEW YORK,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2000
relating to
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2000-9
==============================================================================
<PAGE>
<TABLE>
<CAPTION>
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF TRUST FUND; REPRESENTATIONS AND WARRANTIES
<S> <C> <C>
SECTION 2.01 Conveyance of Trust Fund.....................................................25
SECTION 2.02 Acceptance by Trustee........................................................28
SECTION 2.03 Representations, Warranties and Covenants of the Servicer and Sellers.......28
SECTION 2.04 Representations, Warranties and Covenants of the Servicer and the Sellers
with respect to the Mortgage Loans...........................................30
SECTION 2.05 Issuance of Certificates.....................................................36
SECTION 2.06 REMIC Provisions.............................................................36
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01 Servicing Standard...........................................................41
SECTION 3.02 Sub-Servicing Agreements between Servicer and Sub-Servicers; Enforcement
of the Obligations of Sub-Servicers..........................................42
SECTION 3.03 Termination of the Rights of Sub-Servicers...................................43
SECTION 3.04 Liability of the Servicer....................................................43
SECTION 3.05 Rights of the Depositor, the Sellers and the Trustee in Respect of the
Servicer.....................................................................44
SECTION 3.06 Trustee to Act as Servicer...................................................44
SECTION 3.07 Collection of Mortgage Loan Payments.........................................44
SECTION 3.08 Collection of Taxes, Assessments and Similar Items; Escrow Accounts..........46
SECTION 3.09 Permitted Withdrawals from the Custodial Account.............................47
SECTION 3.10 Maintenance of Primary Mortgage Insurance Policies; Collections
Thereunder...................................................................48
SECTION 3.11 Maintenance of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.....................................................................49
SECTION 3.12 Enforcement of Due-On-Sale Clauses; Assumption Agreements....................50
SECTION 3.13 Realization Upon Defaulted Mortgage Loans....................................52
SECTION 3.14 Trustee to Cooperate; Release of Trustee Mortgage Files......................54
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..........55
SECTION 3.16 Servicing Compensation.......................................................56
SECTION 3.17 Reports to the Depositor; Account Statements.................................56
SECTION 3.18 Annual Statement as to Compliance............................................57
SECTION 3.19 Annual Independent Public Accountants' Servicing Report......................57
SECTION 3.20 Reports to Trustee...........................................................58
ARTICLE IV
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Certificate Account..........................................................59
SECTION 4.02 Distributions................................................................59
SECTION 4.03 Allocation of Realized Losses................................................63
SECTION 4.04 Monthly Statements to Certificateholders.....................................64
ARTICLE V
ADVANCES
SECTION 5.01 Monthly Advances by the Servicer.............................................67
SECTION 5.02 Advances for Attorneys' Fees.................................................67
SECTION 5.03 Nonrecoverable Advances......................................................68
SECTION 5.04 Advance Procedures...........................................................68
ARTICLE VI
THE CERTIFICATES
SECTION 6.01 The Certificates.............................................................69
SECTION 6.02 Registration of Transfer and Exchange of Certificates........................69
SECTION 6.03 Mutilated, Destroyed, Lost or Stolen Certificates............................74
SECTION 6.04 Persons Deemed Owners........................................................75
SECTION 6.05 Access to List of Certificateholders' Names and Addresses....................75
SECTION 6.06 Maintenance of Office or Agency..............................................75
SECTION 6.07 Book-Entry Certificates......................................................75
SECTION 6.08 Notices to Clearing Agency...................................................76
SECTION 6.09 Definitive Certificates......................................................76
ARTICLE VII
THE DEPOSITOR, THE SELLERS AND THE SERVICER
SECTION 7.01 Liabilities of the Sellers, the Depositor and the Servicer...................78
SECTION 7.02 Merger or Consolidation of the Depositor, the Sellers, or the Servicer.......78
SECTION 7.03 Limitation on Liability of the Depositor, the Sellers, the Servicer and
Others.......................................................................79
SECTION 7.04 Servicer Not to Resign.......................................................79
SECTION 7.05 Sellers and Servicer May Own Certificates....................................80
ARTICLE VIII
DEFAULT
SECTION 8.01 Events of Default............................................................81
SECTION 8.02 Trustee to Act; Appointment of Successor.....................................82
SECTION 8.03 Notification to Certificateholders...........................................83
SECTION 8.04 Waiver of Events of Default..................................................84
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01 Duties of Trustee............................................................85
SECTION 9.02 Certain Matters Affecting the Trustee........................................86
SECTION 9.03 Trustee Not Liable for Certificates or Mortgage Loans........................88
SECTION 9.04 Trustee May Own Certificates.................................................88
SECTION 9.05 Trustee's Fees and Expenses..................................................88
SECTION 9.06 Eligibility Requirements for Trustee.........................................88
SECTION 9.07 Resignation and Removal of Trustee...........................................89
SECTION 9.08 Successor Trustee............................................................89
SECTION 9.09 Merger or Consolidation of Trustee...........................................90
SECTION 9.10 Appointment of Co-Trustee or Separate Trustee................................90
SECTION 9.11 Office of the Trustee........................................................91
SECTION 9.12 Tax Returns..................................................................92
ARTICLE X
TERMINATION
SECTION 10.01 Termination upon Liquidation or Repurchase of all Mortgage Loans.............93
SECTION 10.02 Procedure Upon Optional Termination..........................................93
SECTION 10.03 Additional Termination Requirements..........................................94
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment....................................................................96
SECTION 11.02 Recordation of Agreement; Counterparts.......................................97
SECTION 11.03 Governing Law................................................................97
SECTION 11.04 Intention of Parties.........................................................97
SECTION 11.05 Notices......................................................................99
SECTION 11.06 Severability of Provisions...................................................99
SECTION 11.07 Limitation on Rights of Certificateholders...................................99
SECTION 11.08 Certificates Nonassessable and Fully Paid...................................100
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C> <C>
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
</TABLE>
<PAGE>
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"),
CENDANT MORTGAGE CORPORATION ("Cendant"), a New Jersey corporation, in its
capacity as a seller (a "Seller") and in its capacity as the servicer (the
"Servicer"), BISHOP'S GATE RESIDENTIAL MORTGAGE TRUST ("Bishop's Gate"), a
Delaware business trust, in its capacity as a seller (a "Seller"), and THE
BANK OF NEW YORK, a New York banking corporation, 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 Distribution Date in December, 2030.
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):
<TABLE>
<CAPTION>
===================== ========================== ===================== ==================== ==========================
Integral
Pass- Multiples
Class Initial Certificate Through Minimum in Excess of
Designation Principal Balance Rate Denomination Minimum
--------------------- -------------------------- --------------------- -------------------- --------------------------
<S> <C> <C> <C> <C>
Class A-1 $171,871,000.00 7.50% $25,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class A-2 $18,750,000.00 7.50%(1) $25,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class A-3 $21,180,000.00 7.50% $25,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class M-1 $4,414,000.00 7.50% $25,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class B-1 $1,877,000.00 7.50% $25,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class B-2 $993,000.00 7.50% $25,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class B-3 $662,000.00 7.50% $100,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class B-4 $442,000.00 7.50% $100,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class B-5 $441,723.75 7.50% $100,000.00 $1
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class P $110,456.06 (2) $25,000.00 $1,000.00
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class S (3) 7.50% 20% N/A
--------------------- -------------------------- --------------------- -------------------- --------------------------
Class R $100.00 7.50% 20% N/A
===================== ========================== ===================== ==================== ==========================
</TABLE>
--------------
(1) On each Distribution Date on or before the Class A-2 Accretion
Termination Date, an amount equal to the Class A-2 Accrual Amount will be
added to the Certificate Principal Balance of the Class A-2 Certificates
and such amount will be distributed as principal pursuant to Section
4.02(b).
(2) The Class P Certificates will be Principal Only Certificates and will not
bear interest.
(3) 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 $13,771,024.58.
Set forth below are designations of Classes or Components of
Certificates to the categories used herein:
<TABLE>
<CAPTION>
<S> <C>
Accrual Certificates................................. Class A-2 Certificates.
Book-Entry Certificates.............................. All Classes of Certificates other than the Physical
Certificates.
ERISA-Restricted Certificates........................ Residual Certificates and Private Certificates, except that
the Class P and Class S Certificates will cease to be
ERISA-Restricted Certificates if they are the subject of an
ERISA-Qualifying Underwriting.
Lockout Certificates................................. Class A-3 Certificates.
Offered Certificates................................. All Classes of Certificates other than the Private
Certificates.
Private Certificates................................. Class B-3, Class B-4, Class B-5, Class P and Class S
Certificates.
Physical Certificates................................ Class R and Private Certificates.
Rating Agencies...................................... Moody's and Fitch.
Regular Certificates................................. All Classes of Certificates other than the Class R
Certificates.
Residual Certificates................................ Class R Certificates.
Senior Certificates.................................. Class A-1, Class A-2, Class A-3, Class P, Class S and Class
R Certificates.
Subordinate Certificates............................. Class M-1, Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates.
</TABLE>
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 $220,741,279.81.
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 Mortgage Loan Purchase Agreement and this Agreement. However, each
Seller 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:
Adverse REMIC Event: As defined in Section 2.06(f).
Agreement: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto.
Appraised Value: The appraised value of the Mortgaged Property based
upon the appraisal made for the originator at the time of the origination of
the related Mortgage Loan or the sales price of the Mortgaged Property at the
time of such origination, whichever is less, or with respect to any Mortgage
Loan that represents a refinancing, the lower of the appraised value at
origination or the appraised value of the Mortgaged Property based upon the
appraisal made at the time of such refinancing.
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) 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 a 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 of, or otherwise adversely affect, 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.
Bishop's Gate: Bishop's Gate Residential Mortgage Trust, a Delaware
business trust, and its successors and assigns.
Bishop's Gate Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
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.
Cendant: Cendant Mortgage Corporation, a New Jersey corporation, and
its successors and assigns.
Cendant Loans: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
Certificate: Any Class A, Class M-1, 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-1, 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 and for the Class A-2 Certificates, after
increasing their Certificate Principal Balance on each Distribution Date on or
before the Class A-2 Accretion Termination Date in respect of the Class A-2
Accrual Amount.
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-1, Class B, Class P, Class S or
Class R Certificates, as appropriate.
Class A Certificates: As specified in the Preliminary Statement.
Class A-2 Accretion Termination Date: The earlier of (i) the Credit
Support Depletion Date and (ii) the Distribution Date on which the aggregate
Certificate Principal Balance of the Class A-1 Certificates has been reduced
to zero.
Class A-2 Accrual Amount: With respect to the Class A-2 Certificates
and any Distribution Date, the lesser of (a) the Interest Distribution Amount
for the Class A-2 Certificates for such Distribution Date and (b) the amount
otherwise available to be distributed in respect of the Interest Distribution
Amount for the Class A-2 Certificates for such Distribution Date. On each
Distribution Date on or after the Class A-2 Accretion Termination Date, the
entire Class A-2 Accrual Amount for that date will be payable to the Holders
of the Class A-2 Certificates, as interest, to the extent not required to
fully reduce the Certificate Principal Balance of the Class A-1 Certificates
to zero on the Class A-2 Accretion Termination Date; provided, however, that
if the Class A-2 Accretion Termination Date is the Credit Support Depletion
Date, the entire Class A-2 Accrual Amount for that date will be payable as
interest to the Holders of the Class A-2 Certificates.
Class A-3 Adjusted Percentage: For any Distribution Date, the
product of the Class A-3 Percentage and the Step Down Percentage.
Class A-3 Lockout Principal Distribution Amount: For any
Distribution Date prior to the Distribution Date in December 2005, zero. For
any Distribution Date occurring in December 2005 and thereafter, the sum of
(a) the Class A-3 Percentage of the Principal Payment Amount (exclusive of the
portion attributable to the Class P Principal Distribution Amount), (b) the
Class A-3 Adjusted Percentage of the Principal Prepayment Amount (exclusive of
the portion attributable to the Class P Principal Distribution Amount) and (c)
the Class A-3 Adjusted Percentage of the Senior Liquidation Amount.
Class A-3 Percentage: For any Distribution Date, the lesser of (a)
100% and (b) the Certificate Principal Balance of the Class A-3 Certificates
immediately prior to that Distribution Date divided by the aggregate
Certificate Principal Balance of the Certificates, less the Certificate
Principal Balance of the Class P Certificates, as of the Due Date in the month
of such Distribution Date. The Class A-3 Percentage as of the Delivery Date
will be approximately 9.60%.
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 (or, in the case of the Class A-2
Certificates, added to the Certificate Principal Balance thereof) on such
Distribution Date.
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 7.50% minus the Net Mortgage Rate on such
Class P Mortgage Loan and the denominator of which is 7.50%.
Class P Mortgage Loan: Any Mortgage Loan with a Net Mortgage Rate of
less than 7.50%.
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) Payoffs 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
such Premium Rate Mortgage Loans as of that Due Date and the denominator of
which is 7.50%.
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 (or, in the case of the Class A-2
Certificates, added to the Certificate Principal Balance thereof) 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.
Corporate Trust Office: The designated office of the Trustee in the
State of New York at which at any particular time its corporate trust business
shall be administered, which office at the date of the execution of this
Agreement is located at 101 Barclay Street, 12E, New York, New York 10286
(Attn: Mortgage-Backed Securities Group, CDMC Mortgage-Backed Pass-Through
Certificates, Series 2000-9), facsimile no. (212) 815-4135.
Credit Support Depletion Date: The date on which the aggregate
Certificate Principal Balance of the Class M-1 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 Payoff, 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: November 29, 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
November 29, 2000 by and among DTC, the Depositor and the Trustee.
Determination Date: With respect to each Distribution Date, the 18th
day of the calendar month in which such Distribution Date occurs or, if such
18th day is not a Business Day, the Business Day immediately succeeding such
Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class 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 25th day of any month, or if such 25th day is
not a Business Day, the Business Day immediately following such 25th day,
commencing on December 26, 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: The period from and including the second day of the
calendar month preceding the calendar month in which any Distribution Date
occurs to and including the first day of the calendar month in which such
Distribution Date occurs.
Eligible Account: An account that is either (i) a trust account or
accounts maintained in the corporate trust division of the Trustee, provided
that the long-term deposits of the Trustee are rated by each Rating Agency in
one of its two highest rating categories, or (ii) maintained with a depository
institution the debt obligations of which are rated by each Rating Agency in
one of its two highest rating categories, or (iii) an account the deposits in
which are fully insured by the FDIC, or (iv) an account the deposits in which
are insured by the FDIC (to the limits established by FDIC), the uninsured
deposits in which account are otherwise secured such that, as evidenced by an
Opinion of Counsel which shall be at the expense of the party requesting the
use of such account delivered to Trustee and the Depositor, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first 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 with
which such account is maintained.
Eligible Investments: At any time, any one or more of the following
obligations, instruments and securities:
(i) obligations of, or guaranteed as to principal and interest by,
the United States or any agency or instrumentality thereof if such
obligations are backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i)
having an original maturity of not more than three months from the date
of acquisition thereof; provided, however, that the unsecured obligations
of the party agreeing to repurchase such obligations are at the time
rated by each Rating Agency in one of its two highest rating categories;
provided further, that the short-term debt obligations of the party
agreeing to repurchase shall be rated P-1 or better by Moody's;
(iii) federal funds, certificates of deposit, time deposits, demand
deposits and bankers' acceptances (which, if rated by Moody's, shall each
have an original maturity of not more than 90 days and, in the case of
bankers' acceptances, shall in no event have an original maturity of more
than 365 days) of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state; provided,
however, that the debt obligations of such depository institution or
trust company at the date of acquisition thereof have been rated by each
Rating Agency in one of its two highest rating categories; provided,
further, that if rated by Moody's, the short-term obligations of such
depository institution or trust company shall be rated P-1 or better;
(iv) commercial paper (having original maturities of not more than
365 days) 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 each Rating Agency in its highest short-term rating category;
provided, however, that if rated by Moody's, such commercial paper shall
be rated P-1 or better and shall have a maturity of not more than 90
days; and
(v) a money market fund rated by each Rating Agency in its highest
rating available.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: As defined in Section 3.08.
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 and the Trustee Fee.
Expense Fee Rate: As to each Mortgage Loan, the sum of the related
Servicing Fee Rate and the Trustee Fee 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.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
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.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss Coverage Amount: As of the Delivery Date, $4,414,826,
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, 2%, and on the third and fourth anniversary
of the Cut-off Date, 1%, of the aggregate Stated Principal Balance of the
Mortgage Loans and (ii) the excess of the Fraud Loss Coverage Amount as of the
preceding anniversary of the Cut-off Date (or, in the case of the first such
anniversary, as of the Cut-off Date) over the cumulative amount of Fraud
Losses on the Mortgage Loans allocated to the Certificates since such
preceding anniversary or the Cut-off Date, as the case may be, and (b) on the
fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
applicable Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on the Mortgage Loans as to which a
loss is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Mortgage
Insurance Policy because of such fraud, dishonesty or misrepresentation.
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: $225,000.
Initial Certificate Principal Balance: As set forth in the
Preliminary Statement.
Insurance Proceeds: Amounts paid pursuant to any insurance policy
with respect to a Mortgage Loan that have not been used to restore the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that the Servicer would follow in servicing mortgage loans held for
its own account, subject to the terms and conditions of the related Mortgage
Note and Mortgage.
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(c), and
(ii) any Class Unpaid Interest Amounts for such Class and Distribution Date.
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: Amounts other than Insurance Proceeds received
in connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property related to a Mortgage Loan and any other proceeds received
in connection with an REO Property, less the sum of related unreimbursed
Servicing Fees, Servicing Advances and Monthly Advances.
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.
Maturity Date: The Distribution Date in December, 2030.
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 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.
Moody's: Moody's Investors Service, Inc. or any successor thereto.
Mortgage: With respect to a Mortgage Loan that is not a Co-op Loan,
the mortgage, deed of trust or other instrument creating a first lien on a fee
simple or leasehold estate in real property securing a Mortgage Note. With
respect to a Co-op Loan, the related Security Agreement.
Mortgage File: For each Mortgage Loan, the Trustee Mortgage File and
the Servicer Mortgage File.
Mortgage Loan: Each of the mortgage loans transferred and assigned
to the Trustee pursuant to the provisions hereof as from time to time are held
as a part of the Trust Fund, 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 Purchase Agreement: The Mortgage Loan Purchase
Agreement dated as of November 1, 2000 among the Depositor, Cendant and
Bishop's Gate, pursuant to which the Depositor purchased the Cendant Loans and
the Bishop's Gate Loans from Cendant and Bishop's Gate, respectively.
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) whether such Mortgage Loan is a Cendant Loan or a Bishop's
Gate Loan.
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 original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual fixed rate of interest borne by a Mortgage
Note.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the underlying real property securing repayment of a Mortgage
Note. With respect to a Co-op Loan, the related Co-op Stock and Co-op Lease
securing the indebtedness of the Mortgagor under the related Mortgage Loan.
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: The portion of any Monthly Advance
previously made or proposed to be made by the Servicer or other advance
previously made by the Servicer that, in the good faith judgment of the
Servicer, will not or, in the case of a current delinquency, would not be,
ultimately recoverable by the Servicer from Insurance Proceeds or Liquidation
Proceeds (net of Liquidation Expenses) with respect to the related Mortgage
Loan.
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, or other authorized
officer, and by the Treasurer, the Secretary, or one of the Assistant
Treasurers 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.
Payoff: Any payment of principal on a Mortgage Loan equal to the
entire outstanding Stated Principal Balance of such Mortgage Loan, if received
in advance of the last scheduled Due Date for such Mortgage Loan and
accompanied by an amount of interest equal to accrued unpaid interest on such
Mortgage Loan to the date of such payment-in-full.
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 Balance
(or, in the case of the Class S Certificates, the initial Class S Notional
Amount) 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 aggregate Class S Notional Amount) of all
Certificates of the same Class and (b) in the case of the 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 in excess of 7.50%.
Prepayment Interest Shortfall: As to any Distribution Date and
Principal Prepayment, the difference between (i) one full month's interest at
the applicable Mortgage Rate (giving effect to any applicable Relief Act
Reduction, Debt Service Reduction and Deficient Valuation), as reduced by the
Servicing Fee Rate, on the outstanding principal balance of 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 of principal on a Mortgage Loan
which constitutes a Payoff or Curtailment.
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 the Class M-1
Certificates and any Class of Subordinate 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-1
Certificates and the Subordinate 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 November 22,
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 a 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 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 related Seller, as applicable, shall deliver to
the Trustee an Officers' Certificate as to the calculation of the Purchase
Price.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of
business and each 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 FHLMC or FNMA
and whose claims-paying ability will not adversely affect the rating on the
Certificates.
Rating Agency: Moody's 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, the close of
business on the last Business Day of the month preceding the month in which
the applicable Distribution Date occurs.
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 a 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 the
principal portion of the Monthly Payment due in the month of substitution (or
in the case of a substitution of more than one Mortgage Loan for a Deleted
Mortgage Loan, an aggregate Principal Balance, after such deduction), not in
excess of the Principal Balance of the Deleted Mortgage Loan (the amount of
any shortage to be deposited by the Servicer or related Seller, as the case
may be, in the Certificate Account in the month of substitution as set forth
in Section 2.03 of this Agreement); (ii) at the time of substitution have a
Net Mortgage Rate equal to or exceeding the Net Mortgage Rate of the Deleted
Mortgage Loan; (iii) have a Loan-to-Value Ratio no higher than the
Loan-to-Value Ratio of the Deleted Mortgage Loan; (iv) have a remaining term
to maturity no greater than (and not more than one year less than) the Deleted
Mortgage Loan; (v) be of the same or better credit quality classification as
that of the Deleted Mortgage Loan; and (vi) 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(d).
Rule 144A: Rule 144A under the 1933 Act, as in effect from time to
time.
Scheduled Final Distribution Date: December 26, 2030.
Seller: With respect to the Cendant Loans, Cendant, and with respect
to the Bishop's Gate Loans, Bishop's Gate.
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-1, 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% or (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: Cendant 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: 0.20% 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, $2,631,437. 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
7.50%.
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 4.00%.
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: The Bank of New York, a New York banking corporation, 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: 0.0125% 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.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58,
65 Fed. Reg. 67765(2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
U.S. Person: A citizen or resident of the United States, a
corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States.
Voting Rights: The portion of the 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.
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, 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, Cendant shall
deliver to, and deposit with, the Trustee the following documents or
instruments with respect to each Cendant Loan and each Bishop's Gate Loan so
assigned:
(i) the Mortgage Note, endorsed in the following form: "Pay to the
order of The Bank of New York, as Trustee for the benefit of
Certificateholders of CDMC Mortgage-Backed Pass-Through Certificates,
Series 2000-9, without recourse," with all prior and intervening
endorsements showing a complete chain of endorsement from the originator
to the person so endorsing to the Trustee or, if the Mortgage Note has
been lost or destroyed and has not been replaced, a copy of the Mortgage
Note if available certified by the related Seller to be a true copy of
the Mortgage Note together with an affidavit from an authorized officer
of such Seller certifying that the Mortgage Note has been lost,
misplaced, or destroyed and has not been replaced;
(ii) (a) the original Mortgage or copy of the Mortgage with evidence
of recording thereon, and (b) the original or a copy of the recorded
power of attorney, if the Mortgage was executed pursuant to a power of
attorney, with evidence of recording thereon;
(iii) an original assignment or assignments of Mortgage showing an
unbroken chain of title from the originator to the preceding assignee to
the Trustee in the following form: "The Bank of New York, as Trustee for
the benefit of Certificateholders of CDMC Mortgage-Backed Pass-Through
Certificates, Series 2000-9" with evidence of recording indicated on such
assignment of the Mortgage, or a copy of such recorded assignment
certified by the public recording office in those instances where the
public recording office retains the original;
(iv) the original copy of each assumption, modification, written
assurance or substitution agreement, if any, with respect to such
Mortgage Loan, as identified on the Mortgage Loan Schedule;
(v) the original title insurance policy, or if the policy has not
yet been issued, a written commitment or interim binder or preliminary
report of title issued by the title insurance or escrow company, with the
original policy of title insurance to be delivered to the Trustee
promptly upon receipt thereof by the related Seller, or in lieu thereof,
an attorney's title opinion, or attorney's certificate;
(vi) a schedule prepared by the Servicer attached hereto as Exhibit
H identifying each Mortgage Loan by Mortgage Loan number that has a
Primary Mortgage Insurance Policy and identifying its corresponding
Primary Mortgage Insurance Policy number; and
(vii) in the case of a Co-op Loan, the originals of the following
documents or instruments:
(a) a copy of the Co-op Lease and the assignment of such Co-op
Lease to the originator of the Mortgage Loan, with all intervening
assignments showing a complete chain of title and an assignment
thereof by the related Seller;
(b) the stock certificate together with an undated stock power
relating to such stock certificate executed in blank;
(c) the recognition agreement in substantially same form as
standard "AZTECH" form; and
(d) copies of the financial statement filed by the originator
as secured party and, if applicable, a filed UCC-3 assignment of the
subject security interest showing a complete chain of title,
together with an executed UCC-3 assignment of such security interest
by the related Seller in a form sufficient for filing.
Notwithstanding the foregoing, in the event that in connection with
any Mortgage Loan Cendant cannot deliver an original recorded counterpart of
any of the documents required to be delivered pursuant to clauses (ii) or
(iii) above with evidence of recording thereon concurrently with the execution
and delivery hereof, Cendant shall deliver, or cause the Servicer to deliver,
to the Trustee a duplicate original or true copy of such document certified by
Cendant or the Servicer or the applicable public recording office to be a true
and complete duplicate original or copy of the original thereof submitted for
recording, or a copy of the Mortgage certified by a title insurance or escrow
company or companies, evidencing that such Mortgage or assignment of Mortgage
has been delivered to the appropriate public recording office for recordation.
In the event that Cendant cannot deliver a duplicate original or true copy
certified as stated above of such document required to be delivered pursuant
to clauses (ii) or (iii) above, within 120 days of the Delivery Date, Cendant
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.
Cendant 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.
In the event that in connection with any Mortgage Loan Cendant
cannot deliver the original title policy (together with all riders thereto)
satisfying the requirements set forth above, concurrently with the execution
and delivery hereof, Cendant shall promptly deliver such original title
insurance policy to the Trustee. In the event that Cendant cannot deliver the
original title policy (together with all riders thereto) satisfying the
requirements set forth above within 120 days of the Delivery Date, Cendant
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 Servicer shall promptly record in the appropriate public office
for real property records each original assignment referred to in (iii) above
with respect to each Mortgaged Property, and the Servicer shall release any
such assignment to the Depositor or the Servicer, as applicable, for such
purpose. The Depositor or the Servicer 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 Servicer because of any defect therein, the Depositor or the
Servicer 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
Servicer 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, Cendant 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, Cendant and the
Depositor in writing, and request that Cendant correct or cure such defect.
The Trustee shall promptly notify the Depositor in writing if any original
assignment referred to in clause (iii) above has not been received by it prior
to December 1, 2000. In the event the Cendant 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 Cendant 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 Cendant, Bishop's Gate 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
Servicer and Sellers.
As of the Delivery Date, Cendant, as a Seller and Servicer, hereby
makes to the Depositor and the Trustee the representations, warranties and
covenants below except for any representation, warranty or covenant to the
extent it specifically pertains to Bishop's Gate. As of the Delivery Date,
Bishop's Gate hereby makes to the Depositor and the Trustee the
representations, warranties and covenants below which specifically pertain to
Bishop's Gate.
(i) Each of Cendant and Bishop's Gate is a corporation or a business
trust duly organized, validly existing and in good standing under the
laws governing its creation and existence and is in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan in
accordance with the terms of this Agreement;
(ii) Neither the execution nor the delivery by Cendant or Bishop's
Gate of this Agreement, nor the performance and compliance by Cendant or
Bishop's Gate with the terms of this Agreement do or will violate its
articles of incorporation or by-laws or any other organizational document
or constitute a default (or an event which, with notice or lapse of time,
or both, could constitute a default) under, or do or will result in the
breach of, or in the acceleration of indebtedness under, any material
contract, agreement or other instrument to which Cendant or Bishop's Gate
is a party or which may be applicable to Cendant or Bishop's Gate or any
of its assets;
(iii) the execution and delivery of this Agreement by Cendant and
Bishop's Gate, the servicing of the Mortgage Loans by Cendant hereunder,
the consummation of any other of the transactions herein contemplated,
and the fulfillment of or compliance with the terms hereof are in the
ordinary course of business of Cendant and Bishop's Gate, as applicable,
and will not (A) result in a material breach of any term or provision of
the organizational documents of Cendant or Bishop's Gate or (B)
materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Cendant or Bishop's Gate
is a party or by which it may be bound, or any statute, order or
regulation applicable to Cendant or Bishop's Gate of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Cendant or Bishop's Gate, as applicable; and neither
Cendant nor Bishop's Gate is a party to, bound by, or in breach or
violation of any material indenture or other material agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects, or, to Cendant's or Bishop's Gate's, as applicable,
knowledge would in the future materially and adversely affect, (1) the
ability of Cendant or Bishop's Gate to perform its obligations under this
Agreement or (2) the business, operations, financial condition,
properties or assets of Cendant or Bishop's Gate taken as a whole;
(iv) Each of Cendant and Bishop's Gate has duly authorized the
execution, delivery and performance of this Agreement, and assuming due
authorization, execution and delivery by the other parties hereto, this
Agreement constitutes a legal, valid and binding obligation of each of
Cendant and Bishop's Gate, enforceable against it in accordance with the
terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) Each of Cendant and Bishop's Gate is not in violation of or in
default with respect to, any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or governmental
agency, which violation or default might have consequences that could
materially and adversely affect the condition (financial or other),
prospects or operations of Cendant or Bishop's Gate or its properties or
might have consequences that could affect its performance hereunder;
(vi) No litigation is pending or, to the best of the knowledge of
Cendant or Bishop's Gate, threatened against Cendant or Bishop's Gate
which could prohibit its entering into this Agreement or materially and
adversely affect its performance of its obligations under this Agreement;
(vii) [Reserved];
(viii) Cendant will service the Mortgage Loans in accordance with
the standards set forth in this Agreement; and
(ix) No information, certificate of an officer, statement furnished
in writing or report delivered to the Depositor or the Trustee by Cendant
or Bishop's Gate will contain any untrue statement of a material fact or
omit a material fact necessary to make the information, certificate,
statement or report not misleading.
SECTION 2.04 Representations, Warranties and Covenants of the
Servicer and the Sellers with respect to the
Mortgage Loans.
Cendant hereby makes to the Depositor and the Trustee for the
benefit of the Depositor and the Certificateholders the representations,
warranties and covenants below except for any representation, warranty or
covenant with respect to Bishop's Gate's fraud, dishonesty or
misrepresentation in clause (viii) and Bishop's Gate's knowledge in clause
(xvii) below. Bishop's Gate hereby makes to the Depositor and the Trustee for
the benefit of the Depositor and the Certificateholders the representations,
warranties and covenants with respect to Bishop's Gate's fraud, dishonesty or
misrepresentation in clause (viii) and Bishop's Gate's knowledge in clause
(xvii) below. Unless otherwise specified therein, each of such
representations, warranties and covenants is made as of the Cut-off Date.
(i) Each Mortgage Loan is, as of the Cut-off Date, not more than 30
days delinquent in payment of principal and interest and has not been
more than 30 days delinquent in payment of principal and interest; and no
default or breach of the terms of any Mortgage Note or Mortgage or any
other event permitting acceleration of the maturity of any Mortgage Loan
has occurred since origination, and no event exists which, with the
expiration of any grace or cure period, or the giving of any notice, or
both, would constitute such a default, breach, or any other event
permitting acceleration of the maturity of a Mortgage Loan;
(ii) The information set forth in the Mortgage Loan Schedule with
respect to each Mortgage Loan or the Mortgage Loans, as the case may be,
is true and correct in all material respects at the date or dates
respecting which such information is furnished;
(iii) Cendant has in its files, in connection with each Mortgage
Loan, customary documentary evidence that the property subject to the
related Mortgage was the primary or secondary residence and, except for
six Mortgage Loans representing 0.10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, was owner-occupied
at origination and, to the knowledge of Cendant, the property subject to
the related Mortgage is, on the date hereof, the primary or secondary
residence of the owner and is owner-occupied;
(iv) Each Mortgage is a valid and enforceable first lien (except as
the enforceability thereof may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally) on an
unencumbered estate in fee simple in the related Mortgaged Property
subject only to (A) liens for current real property taxes and special
assessments not yet due and payable; (B) covenants, conditions and
restrictions (including those associated with condominium and planned
unit developments), rights of way, easements and other matters of public
record as of the date of recording such Mortgage, such exceptions
appearing of record and being acceptable to prudent mortgage lending
institutions generally and not materially affecting the value of the
Mortgaged Property for the intended use as a residence or are
specifically reflected in the appraisal made at the time of origination
of the Mortgage Loan; and (C) other matters to which like properties are
commonly subject and which do not materially interfere with the benefits
of the security intended to be provided by the Mortgage. There are no
mechanic's liens or claims for work, labor or material or any other liens
affecting the Mortgaged Property which are, or may be, a lien prior to,
or equal to, the lien of the Mortgage, except those liens that are
insured against by the policy of title insurance on such Mortgaged
Property. There are no rights outstanding which could give rise to such
liens, except liens for real property taxes and special assessments not
yet due and payable;
(v) Each Mortgage Loan (i) is evidenced by a properly executed
Mortgage Note payable to the order of Cendant and either endorsed by
Cendant as follows, or endorsed by Cendant to Bishop's Gate and endorsed
by Bishop's Gate as follows: "Pay to the order of The Bank of New York,
as Trustee for the benefit of Certificateholders of CDMC Mortgage-Backed
Pass-Through Certificates, Series 2000-9, without recourse," and (ii) is
secured by a Mortgage which is the legal, valid and binding obligation of
the makers thereof, and the Mortgage Note and Mortgage are legal, valid
and binding obligations of the Mortgagor, enforceable in accordance with
their terms (except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally);
(vi) (A) Each Mortgage Note and Mortgage is in the form approved by
the FNMA or the FHLMC as a uniform instrument for use in the state of the
Mortgaged Property at the time such Mortgage Loan was originated or if
not prepared in such forms, Cendant has received an opinion of counsel to
the effect that the form of the Mortgage Note and Mortgage provide
substantially the same rights and remedies to the holder thereof as
contained in the FNMA and FHLMC forms; and (B) any other document
required to be filed in a public office to perfect the first lien
security interest of each Mortgage, has been duly and timely filed,
registered or recorded, and reviewed, if necessary in the proper public
office;
(vii) Each Mortgage Loan at the time it was made complied with all
applicable state and federal laws, including, without limitation, usury,
equal credit opportunity, truth-in-lending, disclosure, and recording
laws and has been serviced from the date of origination to the Delivery
Date in accordance with all applicable state and federal laws;
(viii) There has been no fraud, dishonesty or misrepresentation on
the part of Cendant, Bishop's Gate, the originator or the Mortgagor in
connection with the origination of any Mortgage Loan or in connection
with the sale of such Mortgage Loan at the Delivery Date;
(ix) There is no delinquent tax or assessment lien against any
Mortgaged Property;
(x) There is no offset, defense or counterclaim to any Mortgage Note
including, without limitation, the obligation of the Mortgagor to pay the
unpaid principal or interest on such Mortgage Note;
(xi) Each Mortgaged Property is free of damage and in good repair;
(xii) Each Mortgage Loan was originated by Cendant or purchased by
Cendant and underwritten to Cendant's underwriting standards;
(xiii) A lender's title insurance commitment or policy, in an amount
not less than the outstanding principal balance of the Mortgage Loan at
the time of its origination, was issued as of the date of the origination
of each Mortgage Loan, and each such commitment or policy, as the case
may be, is valid and remains in full force and effect for the benefit of
the Certificateholders and contains no exceptions to the first lien
priority of the Mortgage other than those exceptions permitted by clause
(iv) above;
(xiv) All policies of insurance covering any Mortgage Loan or
Mortgaged Property and required by this Agreement have been validly
issued and remain in full force and effect; and Cendant has caused and
will cause to be performed any and all acts required to preserve the
rights and interests of the Trustee in all Required Insurance Policies,
including, without limitation, notification of insurers, and, with
respect to such Required Insurance Policies not subject to clause (vi) of
Section 2.01 hereof, assignment of policies or interests therein, and the
establishment of co-insured and joint-loss payee rights in favor of the
Trustee if Cendant shall determine that such assignments or the
establishment of such rights is reasonably necessary to preserve the
Trustee's rights and interests in such policies;
(xv) There does not exist with respect to any Mortgage Loan any
commitment or agreement by the mortgagee to make any further advances or
provide any further services or consideration to the Mortgagor;
(xvi) No Mortgage Loan has been modified in any respect or
satisfied, canceled, subordinated or compromised in whole or in part, no
Mortgaged Property has been released in whole or in part from the lien of
the related Mortgage, and the terms, covenants and conditions of the
related Mortgage Note and the Mortgage have not been waived, altered or
modified in any respect which would materially affect the validity or
enforceability of the Mortgage Note or the Mortgage or the security of
the lien of the Mortgage;
(xvii) Neither Cendant nor Bishop's Gate has any knowledge of any
circumstances or conditions with respect to the Mortgage Loans, the
Mortgages, the assignment of any of the Mortgage Loans to the Trustee,
the Mortgaged Properties, the Mortgagors or their credit standings that
could reasonably be expected to cause prudent investors to regard any of
the Mortgage Loans as an unacceptable investment at the purchase price to
be paid by the Certificateholders, cause the Mortgage Loans to become
delinquent or adversely affect the value or marketability of any of the
Mortgage Loans;
(xviii) Immediately upon the transfer and assignment herein
contemplated, the Trustee shall have good indefeasible title to, and will
be the sole legal owner, free and clear of all liens, claims,
encumbrances and title objections, of each Mortgage Loan being assigned
by Cendant to the Trustee, and, to Cendant's knowledge, each Mortgage
Loan being assigned by Bishop's Gate to the Trustee; immediately prior to
the transfer and assignment by Cendant to Bishop's Gate, Cendant had good
indefeasible title to, and was the sole legal owner of, each Mortgage
Loan being assigned by Bishop's Gate to the Trustee, free and clear of
all liens, claims, encumbrances and title objections; and from the date
of the assignment of any Mortgage Loan by Cendant to Bishop's Gate to the
date of the assignment of such Mortgage Loan by Bishop's Gate to the
Trustee, Cendant was the sole administrative agent of Bishop's Gate and
the sole servicer of the Mortgage Loan;
(xix) As of the date of the initial issuance of the Certificates,
the issuer of each Primary Mortgage Insurance Policy is a Qualified
Insurer;
(xx) If the Mortgaged Property is located at the time of the
origination of the related Mortgage Loan in a federally designated
special flood hazard area, flood insurance in the amount required under
Section 3.11 covers such Mortgaged Property at the date of the initial
issuance of the Certificates (either by coverage under the federal flood
insurance program or by coverage from private insurers);
(xxi) The Primary Mortgage Insurance Policy shall have been amended
to provide that the Trustee, for the benefit of the Certificateholders,
is sole or joint loss payee if such amendment is reasonably necessary to
preserve the Trustee's rights and interests in such Policy;
(xxii) Each Mortgage is a "qualified mortgage" for purposes of the
REMIC Provisions;
(xxiii) Each Mortgage Loan was originated by Cendant or a mortgage
lender which is a FNMA-approved, FHLMC-approved or HUD-approved mortgage
banker, or savings and loan association, a savings bank, a commercial
bank or similar banking institution which is supervised and examined by a
federal or state authority. Principal payments on the Mortgage Loan
commenced no more than sixty days after funds were disbursed in
connection with the Mortgage Loan;
(xxiv) Each Mortgage Loan meets the requirements of the FNMA or
FHLMC guidelines for the purchase of conventional mortgage loans as in
effect on the Delivery Date, and met at the time of its origination such
guidelines as then in effect (except the guidelines relating to maximum
principal amounts and the debt service-to-income ratios for housing debt
and total debt); each Mortgage Loan that is not a Co-op Loan is secured
by a first lien on a fully constructed (i) single-family, detached or
townhouse residential structure which is not a unit in a condominium
("Condominium Unit"), as defined in Part VIII of the FNMA Conventional
Home Mortgage Selling Contract Supplement or Part I, Section 2 of the
FHLMC Seller's Guide for the Sale of Conventional Mortgages
(collectively, the "Seller's Guides"), or (ii) single-family residential
structure which is a Condominium Unit or Planned Unit Development Unit
(as defined in the Seller's Guides), the building or structure in which
each Condominium Unit or Planned Unit Development Unit is physically
located being not greater than three (3) stories in height; and
(xxv) Immediately upon the transfer and assignment herein
contemplated, the Trustee shall have good indefeasible title to, and will
be the sole legal owner, free and clear of all liens, claims,
encumbrances and title objections, of each Mortgage Loan being assigned
by Bishop's Gate to the Trustee.
Upon the discovery by a 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 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 related Seller and
Servicer of such breach and request that the related Seller or Servicer, as
the case may be, cure such breach within 60 days from the date of such notice,
and if such Seller or Servicer does not cure such breach in all material
respects, such Seller or Servicer, as the case may be, 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.
A 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 related Seller or Servicer, as the case may be.
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 related Seller or
Servicer 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 to the Trustee for the benefit of the
Holders of the CDMC Mortgage-Backed Pass-Through Certificates, Series 2000-9.
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 or the related Seller to the Depositor 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 related Seller or
Servicer, as the case may be, 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 related Seller
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 related Seller or 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 related Seller or 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 related Seller or Servicer 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 such Seller or
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 such Seller or Servicer, 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 under this
Section shall be borne by the related Seller or the Servicer, as applicable.
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 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-1, Class A-2, Class A-3, Class M-1, Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5, 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-1, Class A-2, Class A-3, Class M-1, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, 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-1, 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 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 REMIC as a REMIC under the
REMIC Provisions and shall assist each other as necessary to create or
maintain such status. Neither the Trustee nor the Holder of the Class 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.
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
prudent mortgage loan servicing standards and procedures generally accepted in
the mortgage banking industry and generally in a manner consistent with FNMA
guidelines 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).
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 reasonably acceptable to the Trustee
and 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
losses of the Servicer pursuant to Section 3.07 hereof, obligated to make
Monthly Advances if prohibited by applicable law, nor 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, on each Business Day, but no more than two Business Days
after the date of receipt, except as otherwise specifically provided herein,
the following payments and collections received or made by it in respect of
the Mortgage Loans 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):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans net
of the related Servicing Fee;
(iii) all Insurance Proceeds and Liquidation 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;
(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 second Business
Day preceding the Distribution Date following the date of such investment
(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.
In addition to the Custodial Account, the Servicer shall establish
and maintain one or more custodial accounts (each, an "Escrow Account") and
deposit on each Business Day, but no more than two Business Days after the
date of receipt and retain therein all collections from the Mortgagors (or
advances by the Servicer) for the payment of taxes, assessments, hazard
insurance premiums and Primary Mortgage Insurance Policy premiums, if
applicable, or comparable items for the account of the Mortgagors in each
case, to the extent permitted by applicable law. Escrow Accounts shall be
Eligible Accounts. An Escrow Account may contain funds relating to mortgage
loans that belong to one or more trust funds created for mortgage pass-through
certificates of other series. Each Escrow Account shall be held in trust for
the benefit of the Trustee and the related Mortgagors, and, if applicable, the
trustees with respect to such other trust funds and the related mortgagors, as
their interests may appear.
Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums or Primary Mortgage Insurance Policy premiums, if applicable,
condominium or PUD association dues, or comparable items, to reimburse the
Servicer pursuant to Sections 3.10 hereof (with respect to the Primary
Mortgage Insurance Policy) and 3.08 hereof (with respect to taxes and
assessments) and 3.11 hereof (with respect to hazard insurance), to refund to
any Mortgagors any sums as may be determined to be overages, to pay interest,
if required, to Mortgagors on balances in the Escrow Account, to remove
amounts deposited in error in the Escrow Account or to clear and terminate the
Escrow Account at the termination of this Agreement in accordance with Section
10.01 hereof. The Servicer shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution other than
interest on escrowed funds required by law to be paid to the related Mortgagor
and, to the extent required by law, the Servicer shall pay interest on
escrowed funds to the related Mortgagor notwithstanding that the Escrow
Account is non-interest-bearing or that interest paid on it is insufficient to
satisfy legal requirements.
The Servicer shall, with respect to each Mortgage Loan, to the
extent any related Sub-Servicer does not do so, advance the payments referred
to in the preceding paragraph that are not timely paid by the Mortgagors;
provided, however, that the Servicer shall be required to so 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 or otherwise of the related Mortgage Loan; and provided further, that
such payments shall be advanced when the tax, premium or other cost for which
such payment is intended is due.
SECTION 3.09 Permitted Withdrawals from the Custodial Account.
The Servicer may (and, with respect to clauses (e) and (g) below,
shall), from time to time, direct the Trustee to make, and the Trustee 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, 3.10, 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, 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 the 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; 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 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 second Business Day preceding each Distribution
Date 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 not take, or permit any Sub-Servicer to take, any
action that would result in loss of coverage under any applicable Primary
Mortgage Insurance Policy for any loss which, but for the actions of the
Servicer or Sub-Servicer, would have been covered thereunder. To the extent
coverage is available, and except as otherwise required under applicable law,
the Servicer shall keep or cause to be kept in full force and effect each such
Primary Mortgage Insurance Policy until the principal balance of the related
Mortgage Loan, in the case of a Mortgage Loan having a Loan-to-Value Ratio at
origination in excess of 80%, is reduced to (a) 80% or less of the Appraised
Value or (b) 80% or less of its current value based on a new appraisal. The
Servicer shall not cancel or refuse to renew any such Primary Mortgage
Insurance Policy applicable to a Mortgage Loan that is in effect at the date
of the initial issuance of the Certificates and is required to be kept in
force hereunder unless (i) the replacement Primary Mortgage Insurance Policy
for such canceled or non-renewed policy is maintained with a Qualified Insurer
or (ii) such cancellation is in accordance with any applicable law. If the
insurer under any Primary Mortgage Insurance Policy required to be kept in
force hereunder is no longer a Qualified Insurer, the Servicer shall obtain a
replacement Primary Mortgage Insurance Policy with a Qualified Insurer. In
connection with any assumption and modification agreement entered into by the
Servicer or a Sub-Servicer pursuant to Section 3.12, the Servicer shall obtain
a replacement Primary Mortgage Insurance Policy, as provided above.
In connection with its activities as administrator and servicer of
the Mortgage Loans, the Servicer agrees to present, on behalf of itself, the
Depositor, the Trustee for the benefit of the Certificateholders, claims to
the insurer under any Primary Mortgage Insurance Policies and, in this regard,
to take such reasonable action as shall be necessary to permit recovery under
any Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
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
a Standard Hazard Policy with any extended coverage that is prudent in the
area where the Mortgaged Property is located in an amount that is equal to the
greater of (i) the lesser of (A) 100% of the maximum insurable value of the
improvements securing the Mortgage Loan or (B) the principal balance owing on
the Mortgage Loan, or (ii) the amount required to prevent the Mortgagor or
mortgagee from becoming a co-insurer. If the Mortgaged Property is in an area
identified at the time of origination in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards (and flood
insurance has been made 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, 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 Mortgaged Property or (iii) the maximum amount of insurance that
is available under the Flood Disaster Protection Act of 1973. The Servicer
shall also maintain on each REO Property, (i) fire and hazard insurance with
extended coverage in an amount that is not less than the lesser of (x) the
outstanding principal balance of the Mortgage Loan or (y) the maximum
insurable value of the improvements that are a part of the property, (ii)
liability insurance, and (iii) to the extent available, flood insurance in an
amount as provided above. Any amounts collected by the Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
Mortgaged Property subject to the related Mortgage or property acquired in
liquidation of the Mortgage Loan, or released to the Mortgagor in accordance
with the Servicer's normal servicing procedures) shall be deposited, subject
to applicable law, in the Custodial Account. 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
applicable laws and regulations. All the Standard Hazard Policies and other
policies shall be endorsed with standard mortgagee clauses with loss payable
to the Servicer or its designee. 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 to the extent permitted
by Section 3.09 hereof.
Any Standard Hazard Policies or other policies may be in the form of
blanket policies. If any claim arises in connection with a hazard loss under a
blanket policy, the Servicer shall deposit in the Certificate Account from its
own funds any amount not payable under the blanket policy because of a
deductible clause in the policy and not otherwise payable under an individual
policy. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Servicer agrees to present, on behalf of itself, the
Trustee and the Certificateholders, claims under any such blanket policy.
The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, except as limited
by the terms of the related Mortgage Loan documents, and except that the
Servicer shall not accept insurance policies from insurance companies that are
not acceptable insurers in the discretion of the Servicer.
(b) The Servicer shall obtain and maintain at its own expense and
keep in full force and effect throughout the term of this Agreement a blanket
fidelity bond and an errors and omissions insurance policy covering the
Servicer's officers and employees and other persons acting on behalf of the
Servicer in connection with its activities under this Agreement. Any fidelity
bond and errors and omissions insurance must insure the Servicer against
losses, including forgery, theft, embezzlement, fraud, errors and omissions,
and negligent acts of the persons, and the amount of coverage shall be at
least equal to the coverage that would be required by FNMA or FHLMC, whichever
is greater, with respect to the Servicer if the Servicer were servicing and
administering the Mortgage Loans for FNMA or FHLMC in addition to other
mortgage loans being serviced and administered by the Servicer. No provision
of this Section 3.11 requiring the fidelity bond and errors and omissions
insurance shall affect the Servicer's obligations under this Agreement. On
request of the Trustee, the Servicer shall deliver to the Trustee a
certification evidencing coverage under the fidelity bond and insurance
policy. In the event that any such bond or policy ceases to be in effect, the
Servicer shall obtain a comparable replacement bond or policy from an issuer
or insurer acceptable to FNMA or FHLMC.
SECTION 3.12 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.12(a), when any
Mortgaged Property has been or is about to be conveyed by the Mortgagor, the
Servicer shall enforce any due-on-sale clause contained in any Mortgage Note
or Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Required Insurance Policy. In the
event that the Servicer or the related Sub-Servicer is prohibited by law from
enforcing any such due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, the Servicer is authorized,
subject to Section 3.12(b), to take or enter into an assumption and
modification agreement from or with the person to whom such Mortgaged Property
has been or is about to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, unless prohibited by applicable state law,
the Mortgagor remains liable thereon, provided that the Mortgage Loan shall
continue to be covered (if so covered before the Servicer enters such
agreement) by the applicable Required Insurance Policies. The Servicer,
subject to Section 3.12(b), is also authorized with the prior approval of the
insurers under any Required Insurance Policies to enter into a substitution of
liability agreement with such person, pursuant to which the original Mortgagor
is released from liability and such person is substituted as Mortgagor and
becomes liable under the Mortgage Note. Notwithstanding the foregoing, the
Servicer shall not be deemed to be in default under this Section 3.12(a) by
reason of any transfer or assumption which the Servicer is restricted by law
from preventing, for any reason whatsoever.
(b) 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.
SECTION 3.13 Realization Upon Defaulted Mortgage Loans.
(a) The Servicer shall foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can, in accordance with prudent lending practices, be made for collection of
delinquent payments pursuant to Section 3.07 hereof. In connection with such
foreclosure or other conversion, the Servicer shall follow such practices and
procedures as it shall deem necessary or advisable, as shall be normal and
usual in its general mortgage servicing activities and for its own portfolio
and as are in accordance with the requirements of the insurer under any
Required Insurance Policy and shall deliver to the Trustee and the Depositor a
liquidation report with respect to the related Mortgage Loan on the form of
report customarily prepared by the Servicer. The Servicer shall not be
required to expend its own funds in connection with any foreclosure or towards
the restoration, repair, protection or maintenance of any property unless it
shall determine in its sole discretion that such expenses will be recoverable
to it as Liquidation Expenses either through Liquidation Proceeds (respecting
which it shall have priority for purposes of withdrawals from the Custodial
Account pursuant to Section 3.09 hereof) or through Insurance Proceeds
(respecting which it shall have similar priority). The Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the proceeds of liquidation of the related Mortgaged Property, as
contemplated in Section 3.09 hereof.
(b) In the event that any Mortgaged Property 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 its nominee, on behalf
of the Certificateholders. Pursuant to its efforts to sell such REO Property,
the Servicer shall either itself or through an agent selected by the Servicer
protect and conserve such REO Property in the same manner and to such extent
as is customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the Servicer deems
to be in the best interest of the Servicer and the Certificateholders for the
period prior to the sale of such REO Property on such terms and conditions and
for such periods as the Servicer deems to be in the best interest of the
Servicer and the Certificateholders.
(c) 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, 3.11, 3.13 or 5.01 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.
(d) Notwithstanding the foregoing provisions of this Section 3.13,
with respect to any Mortgage Loan as to which the Servicer has knowledge of
the presence of any toxic or hazardous substance on the related Mortgaged
Property, the Servicer shall not, on behalf of the Trustee, 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 or the Certificateholders would be considered to hold title to, to
be a "mortgagee-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 also 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 Trust Fund 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 Trust Fund 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, subject to the Servicer's
right to be reimbursed therefor from the Custodial Account as provided in
Section 3.09(b), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If the Servicer determines, as described above, that it is in the
best economic interest of the Trust Fund 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, then the Servicer shall take such action as it deems to be in the
best economic interest of the Trust Fund. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Servicer, subject
to the Servicer's right to be reimbursed therefor from the Custodial Account
as provided in Section 3.09(b), such right of reimbursement being prior to the
rights of Certificateholders to receive any amount received in respect of the
affected Mortgage Loan or other Mortgage Loans.
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
H 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 H 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.
The Servicer, as compensation for its activities under this
Agreement, shall be entitled to retain the Servicing Fee from collections on
the Mortgage Loans. 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
Business Day immediately preceding the related Distribution Date, deposit the
related Compensating Interest Payment to the Certificate Account. In addition,
the Servicer shall be entitled to reimbursement for 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.
As additional compensation for its activities hereunder, the
Servicer shall be entitled to retain from the Custodial Account or withdraw
from the Custodial Account the amounts specified in subclause (a) of Section
3.09 hereof as payable to it.
Additional servicing compensation in the form of prepayment
penalties, fees or premiums, assumption fees, modification fees, late payment
charges or otherwise or 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 shall be retained by the Servicer to the
extent not required to be deposited in the Custodial Account pursuant to
Section 3.07 hereof. The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder
(including payment of premiums for Primary Mortgage Insurance Policies, if
any, to the extent such premiums are not required to be paid or have not been
paid by the related Mortgagor or the related Sub-Servicer, payment of any
premiums for hazard insurance, as required by Section 3.11 hereof and
maintenance of the other forms of insurance coverage required by Section 3.11
hereof) the payment of servicing compensation to any Sub-Servicers pursuant to
any Sub-Servicing Agreement and the payment of the expenses of the Trustee to
the extent provided in Section 9.05, and shall not be entitled to
reimbursement therefor except as specifically provided in Sections 3.09, 3.13
and 5.03 hereof.
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 shall deliver to the Sellers, the Depositor and the
Trustee on or before the end of each fiscal year of the Servicer, commencing
April, 2001 an Officers' Certificate stating, as to each signer thereof, that
(a) a review of the activities of the Servicer during the prior fiscal year
and of the performance of the Servicer under this Agreement has been made
under such officer's supervision, (b) to the best of such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof, (c) a
Servicing Officer has conducted an examination of the activities of each
Sub-Servicer during the immediately preceding year and its performance under
any Sub-Servicing Agreement, and (d) to the best of such Servicing Officer's
knowledge, based on such examination, each Sub-Servicer has performed and
fulfilled its duties, responsibilities and obligations under such
Sub-Servicing Agreement in all material respects throughout such year, or if
there has been a default in the performance or fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof. 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 the first day of the fourth month following the end of
the Servicer's fiscal year, beginning in April, 2001, the Servicer, at its
expense, shall cause a firm of independent public accounts that is a member of
the American Institute of Certified Public Accountants to furnish a statement
to the Sellers, 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)
for the benefit of the Certificateholders to the effect that such firm has
examined the financial statements as of the end of the prior fiscal year and
certain documents substantially similar to this Agreement and records relating
to the servicing of mortgage loans serviced by the Servicer or any successor
servicer that are substantially similar to the Mortgage Loans and that, on the
basis of an examination conducted substantially in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or the Attestation Program for
Mortgages serviced for FHLMC, such servicing has been conducted in compliance
with such agreements except for such significant exceptions or errors in
records that, in the opinion of such firm, the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FHLMC requires it to report. In rendering such statement such firm may rely,
as to matters relating to direct servicing of Mortgage Loans by Sub-Servicers,
if any, upon comparable statements for examinations conducted substantially in
compliance with the Uniform Single Audit Program for Mortgage Bankers or the
Audit Program for Mortgages serviced for FHLMC (rendered within one year of
such statement) of independent public accounts with respect to the related
Sub-Servicer. The Servicer shall forward a copy of each such report to the
Rating Agencies. A Certificateholder may, at its own expense, examine such
documents, records and financial information prepared by the Servicer in the
ordinary course of business relating to the servicing of the Mortgage Loans as
are necessary, in the reasonable judgment of such Certificateholder, for a
determination of whether the Servicer's servicing has been conducted in
compliance with the terms of this Agreement.
SECTION 3.20 Reports to Trustee.
On or before the third Business Day prior to each Distribution Date,
the Servicer shall deliver to the Trustee a monthly servicing report
containing the information set forth in 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
Servicer or shall remain uninvested. 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 the Servicer's 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 deposited in the Certificate Account
out of the Servicer'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:
(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 make required distributions pursuant to Section 4.02;
(iv) to pay to the Depositor any amount to which it is entitled
pursuant to Section 7.03; and
(v) to pay to itself the Trustee Fee.
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 each Class of
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, except (b) on or prior to
the Class A-2 Accretion Termination Date, to the Class A-1 Certificates
until the Certificate Principal Balance of the Class A-1 Certificates is
reduced to zero, as principal, any Class A-2 Accrual Amount, any
shortfall being allocated pro rata among such Classes in proportion to
the amount of the Interest Distribution Amount (or with respect to the
Class A-2 Certificates, the Class A-2 Accrual 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 A-3 Certificates, the Class A-3 Lockout
Principal Distribution Amount, until the Certificate Principal
Balance of the Class A-3 Certificates has been reduced to zero;
(B) second, to the Class R Certificates, until the Certificate
Principal Balance of the Class R Certificates has been reduced to
zero;
(C) third, to the Class A-1 Certificates, until the Certificate
Principal Balance of the Class A-1 Certificates has been reduced to
zero;
(D) fourth, to the Class A-2 Certificates, until the
Certificate Principal Balance of the Class A-2 Certificates has been
reduced to zero; and
(E) fifth, to the Class A-3 Certificates, any remaining portion
of that Senior Principal Distribution Amount, until the Certificate
Principal Balance of the Class A-3 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 B-1 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) fourth, 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;
(E) fifth, to the Class B-2 Certificates, an amount allocable
to interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) sixth, 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;
(G) seventh, to the Class B-3 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-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;
(I) ninth, to the Class B-4 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-4 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution Date
until the Certificate Principal Balance of Class B-4 Certificates
has been reduced to zero;
(K) eleventh, to the Class B-5 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-5 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such Distribution Date
until the Certificate Principal Balance of Class B-5 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 Payoffs and
Curtailments 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 Payoffs and
Curtailments will be allocated among the remaining Classes of Subordinate
Certificates, pro rata, based upon their respective Certificate Principal
Balances.
(f) On each Distribution Date on or prior to the Class A-2 Accretion
Termination Date, the Class A-2 Accrual Amount for such Distribution Date
shall not be distributed as interest with respect to the Class A-2
Certificates but shall instead be added to the Certificate Principal Balance
of such Class on the related Distribution Date. With respect to any
Distribution Date on or prior to the Class A-2 Accretion Termination Date, the
Class A-2 Accrual Amount shall be deemed to have been added on such
Distribution Date to the Certificate Principal Balance of the Class A-2
Certificates.
(g) 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.
(h) 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-1
Certificates), 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-1
Certificates), until the respective Certificate Principal Balance of each such
Class has been reduced to zero; and second, to the Class A Certificates, pro
rata, on the basis of their respective Certificate Principal Balances, until
the respective Certificate Principal Balance of each 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 Class M-1
Certificates.
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
and the amount of Class A-2 Accrual Amount added to the Certificate
Principal Balance of the Class A-2 Certificates;
(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 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, 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 less than two Business Days prior
to the related Distribution Date, 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 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 Business Day prior to the
related Distribution Date (the "Servicer Advance Date"). The Servicer shall
notify the Trustee of the aggregate amount of Monthly Advances for a
Distribution Date on or before three 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 I and Exhibit J, 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 Certificate provides the Trustee with (i) in the
case of an ERISA-Restricted Certificate that is not a Class S or Class P
Certificate, a certification as set forth in paragraph 6 of Exhibit L or (ii)
an Opinion of Counsel which establishes to the reasonable satisfaction of the
Depositor and the Trustee that the purchase and holding of an ERISA-Restricted
Certificate by, on behalf of or with "plan assets" of such plan is permissible
under applicable local law, would not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and would
not subject the Depositor or the Trustee to any obligation or liability
(including liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in this Agreement or any other liability. The Trustee shall
require that such prospective transferee certify to the Trustee in writing the
facts establishing that such transferee is not such a plan and is not acting
on behalf of or using "plan assets" of any such plan to effect such
acquisition. 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 Servicer, 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 Servicer, 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 Servicer prior to any transfer of such
ownership interest, which consent may be withheld in the Servicer'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 Servicer 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 Servicer on such terms as the Servicer may choose.
Such purported transferee shall promptly endorse and deliver a Class
R Certificate in accordance with the instructions of the Servicer.
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 Servicer, and the Servicer 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 Servicer,
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) a certificate of the Servicer stating that the Servicer has
received an Opinion of Counsel, in form and substance satisfactory
to the Servicer, 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 SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A)
THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER
THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE
CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED ORGANIZATION AND
(2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL
INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF
THIS CLASS 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 master servicer hereunder,
the Sellers and the Depositor shall have unlimited access to a list of the
names and addresses of the Certificateholders which list shall be provided by
the Trustee promptly upon 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 New York City where Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustee in respect of the Certificates and this
Agreement may be served. The Trustee initially designates the 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 66-2/3% 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, Bishop's Gate and the Cendant 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.
The Depositor, Bishop's Gate, and the Cendant 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, Bishop's Gate or the Cendant
may be merged or consolidated, or any Person resulting from any merger or
consolidation to which the Depositor, Bishop's Gate or the Cendant shall be a
party, or any Person succeeding to the business of the Depositor, Bishop's
Gate, or the Cendant, shall be the successor of the Depositor, Bishop's Gate
or the Cendant, 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, FNMA or FHLMC.
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 (except for the obligation of
the Servicer or Sellers to effectuate repurchases or substitutions of Mortgage
Loans hereunder, including pursuant to Section 2.01, 2.02 or 2.04 hereof,
which shall remain with Cendant and Bishop's Gate hereunder); 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 FNMA and
FHLMC approved seller/servicer in good standing, which has a net worth of at
least $15,000,000, and which is willing to service the Mortgage Loans and
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, which contains an assumption by such Person of
the rights, powers, duties, responsibilities, obligations and liabilities of
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 as
provided above), except that the Servicer shall remain liable for all
liabilities and obligations incurred by it as Servicer hereunder prior to the
satisfaction of the conditions to such assignment and delegation set forth in
the preceding sentence.
SECTION 7.03 Limitation on Liability of the Depositor, the
Sellers, the Servicer and Others.
Neither the Depositor, the Servicer, any Seller, any Sub-Servicer
nor any of the directors, officers, employees or agents of the Depositor, the
Servicer, any Seller 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 any Seller against any breach of representations or
warranties made by it herein or protect the Depositor, the Servicer or any
Seller or any such person from any liability which would otherwise be imposed
by reasons of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor, the Servicer, any Seller, any Sub-Servicer
and any director, officer, employee or agent of the Depositor, the Servicer,
any Seller 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, any Seller, any
Sub-Servicer and any director, officer, employee or agent of the Depositor,
the Servicer, any Seller 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 gross negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Servicer, any Seller 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, any Seller 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. 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 a Seller or the Servicer.
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 Certificateholders
or to the Trustee any payment other than a Monthly Advance required to be made
by the Servicer under the terms of this Agreement, which failure shall
continue unremedied for a period of one Business Day after the date upon which
written notice of such failure shall have been given to the Servicer by the
Trustee or the Depositor or to the Servicer and the Trustee by the Holders of
Certificates having not less than 25% of the Voting Rights evidenced by the
Certificates; or
(b) any failure by the Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer contained in this Agreement (except as set forth in (c) below) which
failure (i) materially affects the rights of the Certificateholders and (ii)
shall continue unremedied for a period of 60 days after the date on which
written notice of such failure shall have been given to the Servicer by the
Trustee or the Depositor, or to the Servicer and the Trustee by the Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates; or
(c) if a representation or warranty set forth in Section 2.03 or
2.04 hereof shall prove to be materially incorrect as of the time made in any
respect that materially and adversely affects interests of the
Certificateholders, and the circumstances or condition in respect of which
such representation or warranty was incorrect shall not have been eliminated
or cured, or the affected Mortgage Loan shall not have been substituted for or
repurchased, within 60 days after the date on which written notice thereof
shall have been given to the Servicer and Sellers by the Trustee for the
benefit of the Certificateholders or by the Depositor; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for
a period of 60 days; or
(e) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the
Servicer or all or substantially all of the property of the Servicer; or
(f) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(g) either Rating Agency shall lower or withdraw the outstanding
rating of the Certificates because the existing or prospective financial
condition or mortgage loan servicing capability of the Servicer is
insufficient to maintain such outstanding rating; or
(h) 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., New York City 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 (g) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee shall at the direction of the Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates, by notice in writing to 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 (h) 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
related 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
and the Certificateholders at their respective addresses appearing in the
Certificate Register and to the Rating Agencies.
(b) Within two Business Days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to the Sellers and all
Certificateholders 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). Any amount payable to the Trustee on
such Distribution Date in excess of such amount on deposit will be paid by the
Servicer from its own funds as compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust) and the Servicer will pay or reimburse the Trustee (or, if the Servicer
is unable to fulfill its obligations hereunder, the Trust Fund will reimburse
pursuant to Section 3.09(d) herein) upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee hereunder
in accordance with the terms hereof (including its reasonable attorneys' fees
and expenses and of all persons not regularly in its employ). Any payment
hereunder made by the Servicer to the Trustee, other than any amount to be
paid from the Certificate Account pursuant to this Section 9.05, shall be paid
from the Servicer's own funds, without reimbursement from the Trust Fund
therefor.
The Trustee and any director, officer, employee or agent of the
Trustee shall be indemnified by the Servicer and held harmless against any
loss, liability or expense (a) incurred in connection with any legal action
relating to this Agreement or the Certificates, or the performance of any of
the Trustee's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder or by reason of reckless
disregard of the Trustee's obligations and duties hereunder and (b) resulting
from the exercise of any power of attorney granted by the Trustee in
accordance with this Agreement. Such indemnity shall survive the termination
of this Agreement or the resignation or removal of the Trustee 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 Moody's
and Fitch or such lower ratings as will not cause Moody's 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 such successor trustee
shall be eligible under the provisions of Section 9.06 hereof and its
acceptance shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 9.08, the 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 101 Barclay Street, 12E, New York, New York 10286, Attn:
Mortgage-Backed Securities Group, CDMC Mortgage-Backed Pass-Through
Certificates, Series 2000-9.
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, and the Trustee shall sign such returns. 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.
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 Servicer, 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 Servicer 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 Mr. Joseph P. Kennedy, former Ambassador of the United States
to Great Britain, living on the date of execution of this Agreement or (ii)
the Distribution Date in December, 2030.
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 Net 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); provided, however,
that if the Servicer shall so choose, the Servicer may remit the Mortgage Loan
Repurchase Price net of advances that would otherwise be reimbursable to the
Servicer and the Servicer would have no further entitlement to reimbursement
for such advances. The Trustee shall give notice to the Rating Agencies of the
Servicer'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 Servicer 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 Servicer 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 Servicer 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 Servicer, execute and deliver all such
instruments of transfer or assignment, in each case without recourse, as shall
be reasonably requested by the Servicer, to vest title in the Servicer in the
Mortgage Loans so repurchased and shall transfer or deliver to the Servicer
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 Servicer.
(c) Notice of the Distribution Date on which the Servicer
anticipates that the final distribution shall be made (whether upon Optional
Termination or otherwise), shall be given promptly by the Servicer 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 Servicer 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 Servicer 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, the Sellers and the
Trustee that the conveyance by the Sellers to the Depositor pursuant to the
Mortgage Loan Purchase Agreement and the conveyance by the Depositor to the
Trustee as provided for in Section 2.01 of each of the Sellers' and
Depositor's right, title and interest in and to the Mortgage Loans be, and be
construed as, an absolute sale and assignment by the Sellers to the Depositor
and by the Depositor to the Trustee of the Mortgage Loans for the benefit of
the Certificateholders. Further, it is not intended that either conveyance be
deemed to be a pledge of the Mortgage Loans by the Sellers to the Depositor or
by the Depositor to the Trustee to secure a debt or other obligation. However,
in the event that the Mortgage Loans are held to be property of the Sellers or
the Depositor, or if for any reason the Mortgage Loan Purchase Agreement or
this Agreement is held or deemed to create a security interest in the Mortgage
Loans, then it is intended that (i) this Agreement shall also be deemed to be
a security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; (ii) the conveyances provided for in Section 2.01
shall be deemed to be a grant by the Sellers and the Depositor to the Trustee
on behalf of the Certificateholders, to secure payment in full of the Secured
Obligations (as defined below), of a security interest in all of the Sellers'
and the Depositor's right (including the power to convey title thereto), title
and interest, whether now owned or hereafter acquired, in and to the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, and all
accounts, contract rights, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and uncertificated securities consisting of, arising
from or relating to (A) the Mortgage Loans, including with respect to each
Mortgage Loan, the Mortgage Note and related Mortgage, and all other documents
in the related Trustee Mortgage Files, and including any 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 Sellers and the Depositor under this Agreement and the Mortgage Loan
Purchase Agreement.
(b) The Sellers and 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 Servicer's expense, all filings
necessary to maintain the effectiveness of any original filings necessary
under the Uniform Commercial Code as in effect in any jurisdiction to perfect
the Trustee's security interest in or lien on the Mortgage Loans, including
without limitation (i) continuation statements, and (ii) such other statements
as may be occasioned by any transfer of any interest of 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., 11
Madison Avenue, New York, New York 10055, Attention: President; (ii) in the
case of the Trustee, 101 Barclay Street, 12E, New York, New York 10286, Attn:
Mortgage-Backed Securities Group, CDMC Mortgage-Backed Pass-Through
Certificates, Series 2000-9, or such other address as may hereafter be
furnished to the Depositor in writing by the Trustee; (iii) in the case of the
Sellers or Servicer, 3000 Leadenhall Road, Mailstop SM2, Mt. Laurel, New
Jersey 08054, Attention: Vice President-Secondary Marketing, fax number (856)
917-0212; (iv) in the case of the Fitch, Inc., One State Street Plaza, New
York, New York 10004, Attention: Residential Mortgage Surveillance Group; and
(v) in the case of the Moody's Investors Service, Inc., 99 Church Street, New
York, New York 10007, Attention: Keith Wofford. 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.
<PAGE>
IN WITNESS WHEREOF, the Depositor, 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: /s/ Gregory Petroski
--------------------------------------------
Name: Gregory Petroski
Title: Vice President
CENDANT MORTGAGE CORPORATION,
as Seller and Servicer
By: /s/ Peter A. Thomas
--------------------------------------------
Name: Peter A. Thomas
Title: Vice President
BISHOP'S GATE RESIDENTIAL
MORTGAGE TRUST, as Seller
By: Cendant Mortgage Corporation,
as administrative agent
By: /s/ Peter A. Thomas
--------------------------------------------
Name: Peter A. Thomas
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ John Polito
--------------------------------------------
Name: John Polito
Title: Vice President
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this ___ day of November, 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]
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ___ day of November, 2000, before me, personally appeared
__________, known to me to be a _________________ of Cendant Mortgage
Corporation, 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]
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of November, 2000 before me, a Notary Public in and for
said State, personally appeared ______________ known to me to be a
_____________ of Cendant Mortgage Corporation, the administrative agent under
the trust agreement that executed the within instrument and also known to me
to be the person who executed it on behalf of said trust, and acknowledged to
me that such trust 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]
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ of November, 2000 before me, a Notary Public in and for
said State, personally appeared ______________ known to me to be a
_____________ of The Bank of New York, the New York banking corporation 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]
<PAGE>
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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-9, 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
<TABLE>
<CAPTION>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
<S> <C> <C>
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: ______________.
</TABLE>
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, The Bank of New York, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), Bishop's Gate Residential
Mortgage Trust, as a seller and Cendant Mortgage Corporation, 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 CDMC
Mortgage-Backed Pass-Through Certificates, Series 2000-9 (the "Certificates"),
which is comprised of the following twelve Classes: Class A-1, Class A-2,
Class A-3, Class P, Class S, Class R, Class M-1, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5. 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 25th day of each calendar month, or, if such
25th day is not a Business Day, the Business Day immediately following such
25th day (each, a "Distribution Date"), commencing December 26, 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 Servicer 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
THE BANK OF NEW YORK, 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: November __, 2000
THE BANK OF NEW YORK,
as Trustee
By:________________________________
Authorized Officer
<PAGE>
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
Master 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.
<PAGE>
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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-9, CLASS M--1
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
<TABLE>
<CAPTION>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
<S> <C> <C>
CUSIP _______ Initial Aggregate Class M-1
Certificate Principal Balance:
$_______________
Certificate No. Pass-Through Rate: ____% Initial Certificate Principal
Balance Of This Certificate:
$_______________
First Distribution Date: Final Scheduled
__________________ Distribution Date:
_______________
</TABLE>
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, The Bank of New York, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), Bishop's Gate Residential
Mortgage Trust, as a seller and Cendant Mortgage Corporation, 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 CDMC
Mortgage-Backed Pass-Through Certificates, Series 2000-9 (the "Certificates"),
which is comprised of the following twelve Classes: Class A-1, Class A-2,
Class A-3, Class P, Class S, Class R, Class M-1, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5. 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 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 Certificates, both as
set forth above.
The Trustee shall distribute from the Certificate Account, to the
extent of available funds, on the 25th day of each calendar month, or, if such
25th day is not a Business Day, the Business Day immediately following such
25th day (each, a "Distribution Date"), commencing December 26, 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 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 Servicer 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
THE BANK OF NEW YORK, 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: November __, 2000
THE BANK OF NEW YORK,
as Trustee
By: _________________________________
Authorized Officer
<PAGE>
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
Master 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.
<PAGE>
EXHIBIT C
FORM OF CLASS B (PUBLIC) 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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-9, [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
<TABLE>
<CAPTION>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
<S> <C> <C>
CUSIP __________ Initial Aggregate Class [B-_]
Certificate Principal Balance:
$__________
Certificate No. Pass-Through Rate: _____% Initial Certificate Principal
Balance Of This Certificate:
$____________________
First Distribution Date: Final Scheduled
Distribution Date: .
</TABLE>
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, The Bank of New York, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), Bishop's Gate Residential
Mortgage Trust, as a seller and Cendant Mortgage Corporation, 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 CDMC
Mortgage-Backed Pass-Through Certificates, Series 2000-9 (the "Certificates"),
which is comprised of the following twelve Classes: Class A-1, Class A-2,
Class A-3, Class P, Class S, Class R, Class M-1, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5. 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 25th day of each calendar month, or, if such
25th day is not a Business Day, the Business Day immediately following such
25th day (each, a "Distribution Date"), commencing December 26, 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 $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 Servicer 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
THE BANK OF NEW YORK, 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: November __, 2000
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Authorized Officer
<PAGE>
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
Master 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.
<PAGE>
EXHIBIT D
FORM OF CLASS B (PRIVATE) 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 A PERSON INVESTING ON BEHALF OF OR
WITH PLAN ASSETS OF ANY SUCH PLAN, 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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-9, [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
<TABLE>
<CAPTION>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
<S> <C> <C>
CUSIP ________ Initial Aggregate Class [B-_]
Certificate Principal Balance:
$__________
Certificate No. Pass-Through Rate: ____% Initial Certificate Principal
Balance Of This Certificate:
$__________
First Distribution Date: Final Scheduled
Distribution Date:
</TABLE>
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, The Bank of New York, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), Bishop's Gate Residential
Mortgage Trust, as a seller and Cendant Mortgage Corporation, 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 Section I and
III of PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee to the effect that
the purchase or holding of such Certificate will not result in the assets of
the Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Trustee
or the Servicer to any obligation in addition to those undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Trustee or
the Trust Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of 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 CDMC
Mortgage-Backed Pass-Through Certificates, Series 2000-9 (the "Certificates"),
which is comprised of the following twelve Classes: Class A-1, Class A-2,
Class A-3, Class P, Class S, Class R, Class M-1, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5. 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 25th day of each calendar month, or, if such
25th day is not a Business Day, the Business Day immediately following such
25th day (each, a "Distribution Date"), commencing December 26, 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 Servicer 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
THE BANK OF NEW YORK, 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: November __, 2000
THE BANK OF NEW YORK,
as Trustee
By: ______________________________
Authorized Officer
<PAGE>
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
Master 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.
<PAGE>
EXHIBIT E
FORM OF CLASS S 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.
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.
UNLESS THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING AS DEFINED IN THE AGREEMENT, 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 A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF ANY SUCH
PLAN, 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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-9, 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: _____%
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, The Bank of New York, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), Bishop's Gate Residential
Mortgage Trust, as a seller and Cendant Mortgage Corporation, 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.
Unless this Certificate has been the subject of an ERISA-Qualifying
Underwriting as defined in the Agreement, 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 Section I and III of PTCE 95-60 or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA, or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement, or
using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee to the effect that the purchase or holding of such Certificate
will not result in the assets of the Trust Fund being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Trustee or the Servicer to any obligation in
addition to those undertaken in this Agreement, which Opinion of Counsel shall
not be an expense of the Trustee or the Trust Fund. Notwithstanding anything
else to the contrary herein, any purported transfer of 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 CDMC
Mortgage-Backed Pass-Through Certificates, Series 2000-9 (the "Certificates"),
which is comprised of the following twelve Classes: Class A-1, Class A-2,
Class A-3, Class P, Class S, Class R, Class M-1, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5. 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 25th day of each calendar month, or, if such
25th day is not a Business Day, the Business Day immediately following such
25th day (each, a "Distribution Date"), commencing December 26, 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 Servicer 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
THE BANK OF NEW YORK, 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: November __, 2000
THE BANK OF NEW YORK,
as Trustee
By:____________________________________
Authorized Officer
<PAGE>
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
Master 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.
<PAGE>
EXHIBIT F
FORM OF CLASS P 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.
UNLESS THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING AS DEFINED IN THE AGREEMENT, 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 A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF ANY SUCH
PLAN, 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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-9, 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, The Bank of New York, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), Bishop's Gate Residential
Mortgage Trust, as a seller and Cendant Mortgage Corporation, 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.
Unless this Certificate has been the subject of an ERISA-Qualifying
Underwriting as defined in the Agreement, 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 Section I and III of PTCE 95-60 or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA, or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement, or
using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee to the effect that the purchase or holding of such Certificate
will not result in the assets of the Trust Fund being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Trustee or the Servicer to any obligation in
addition to those undertaken in this Agreement, which Opinion of Counsel shall
not be an expense of the Trustee or the Trust Fund. Notwithstanding anything
else to the contrary herein, any purported transfer of 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 CDMC
Mortgage-Backed Pass-Through Certificates, Series 2000-9 (the "Certificates"),
which is comprised of the following twelve Classes: Class A-1, Class A-2,
Class A-3, Class P, Class S, Class R, Class M-1, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5. 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 25th day of each calendar month, or, if such
25th day is not a Business Day, the Business Day immediately following such
25th day (each, a "Distribution Date"), commencing December 26, 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 Servicer 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
THE BANK OF NEW YORK, 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: November __, 2000
THE BANK OF NEW YORK,
as Trustee
By:____________________________________
Authorized Officer
<PAGE>
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
Master 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.
<PAGE>
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 A PERSON INVESTING ON BEHALF OF
OR WITH PLAN ASSETS OF ANY SUCH PLAN 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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-9, 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, The Bank of New York, as trustee (the "Trustee", which term
includes any successor entity under the Agreement), Bishop's Gate Residential
Mortgage Trust, as a seller and Cendant Mortgage Corporation, 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 Sections I and
III of PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee to the effect that
the purchase or holding of such Certificate will not result in the assets of
the Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Trustee
or the Servicer to any obligation in addition to those undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Trustee or
the Trust Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of 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 CDMC
Mortgage-Backed Pass-Through Certificates, Series 2000-9 (the "Certificates"),
which is comprised of the following twelve Classes: Class A-1, Class A-2,
Class A-3, Class P, Class S, Class R, Class M-1, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5. 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 25th day of each calendar month, or, if such
25th day is not a Business Day, the Business Day immediately following such
25th day (each, a "Distribution Date"), commencing December 26, 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 Servicer 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.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
THE BANK OF NEW YORK, 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: November __, 2000
THE BANK OF NEW YORK,
as Trustee
By:____________________________________
Authorized Signatory
<PAGE>
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
Master 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.
<PAGE>
EXHIBIT H
SCHEDULE OF MORTGAGE LOANS
<PAGE>
EXHIBIT I
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[_________________, 200_]
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue, 5th Floor
New York, New York 10010
Cendant Mortgage Corporation
3000 Leadenhall Road
Mount Laurel, N.J. 08054
Bishop's Gate Residential Mortgage Trust
3000 Leadenhall Road
Mount Laurel, N.J. 08054
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [__________________] Mortgage-Backed
Pass-Through Certificates, Series 200_-___
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.
THE BANK OF NEW YORK,
as Trustee
By: ________________________________
Authorized Representative
<PAGE>
EXHIBIT J
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue, 5th Floor
New York, New York 10010
Cendant Mortgage Corporation
3000 Leadenhall Road
Mount Laurel, N.J. 08054
Bishop's Gate Residential Mortgage Trust
3000 Leadenhall Road
Mount Laurel, N.J. 08054
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to [___________________]
Mortgage-Backed Pass-Through Certificates, Series 200_-___
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.
THE BANK OF NEW YORK,
as Trustee
By: ______________________________
Authorized Representative
<PAGE>
EXHIBIT K
FORM OF REQUEST FOR RELEASE
[date]
To: The Bank of New York
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of
[__________, 200_], between Credit Suisse First Boston Mortgage Securities
Corp., as Depositor, Cendant Mortgage Corporation, as a seller and servicer,
Bishop's Gate Residential Mortgage Trust, as a seller, and you, as Trustee
(the "Pooling and Servicing Agreement"), the undersigned hereby requests a
release of the Mortgage File held by you as Trustee with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full.
(The Servicer hereby certifies that all amounts received
in connection with the Mortgage Loan have been or will
be credited to the Certificate Account pursuant to the
Pooling and Servicing Agreement.)
____ 2. Mortgage Loan repurchased.
(The Servicer hereby certifies that the Purchase Price
has been credited to the Certificate Account pursuant to
the Pooling and Servicing Agreement.)
____ 3. The Mortgage Loan is being foreclosed.
____ 4. Other. (Describe)
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned, except if the Mortgage Loan has been
paid in full or repurchased (in which case the Mortgage File will be retained
by us permanently) when no longer required by us for such purpose.
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
CENDANT MORTGAGE CORPORATION
By: ________________________________
Name:
Title:
<PAGE>
EXHIBIT L
FORM OF INVESTOR REPRESENTATION LETTER
[date]
[TO BE REVISED]
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue, 5th Floor
New York, New York 10010
[_____________________________]
[_____________________________]
[_____________________________]
Re: [__________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-___
Ladies and Gentlemen:
[_______________] (the "Purchaser") intends to purchase from Cendant
Mortgage Corporation and Bishop's Gate Residential Mortgage Trust (the
"Sellers") the [_________________] Mortgage-Backed Pass-Through Certificates,
Series 200_-____ [Class S] [Class P] [Class B-__] (together, the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of [__________, 200_] among
Credit Suisse First Boston Mortgage Securities Corp., as Depositor (the
"Company"), Cendant Mortgage Corporation, as seller and servicer, Bishop's
Gate Residential Mortgage Trust, as seller, and The Bank of New York, 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) 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 Sellers 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 Sections I and III of PTCE
95-60.
Very truly yours,
[Purchaser]
By: ____________________________________
Name:
Title:
<PAGE>
EXHIBIT M
FORM OF TRANSFEROR REPRESENTATION LETTER
[date]
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue, 5th Floor
New York, New York 10010
[_____________________]
[_____________________]
[_____________________]
Re: [_________________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-___
Ladies and Gentlemen:
In connection with the sale by [_______________] (the "Seller") to
[_____________________] (the "Purchaser") the [__________________]
Mortgage-Backed Pass-Through Certificates, Series 200_-____ [Class S] [Class
P] [Class B- ] (together, the "Certificates"), issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
[__________, 200_] among Credit Suisse First Boston Mortgage Securities Corp.,
as Depositor (the "Company"), Cendant Mortgage Corporation, as seller and
servicer, Bishop's Gate Residential Mortgage Trust, as seller and The Bank of
New York, 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:
<PAGE>
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.
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____.
<PAGE>
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
[date]
Credit Suisse First Boston Mortgage Securities Corp.
11 Madison Avenue, 5th Floor
New York, New York 10010
[_____________________]
[_____________________]
[_____________________]
Re: [_________________________] Mortgage-Backed Pass-Through
Certificates, Series 200_-___, 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 [___________, 200_] among
Credit Suisse First Boston Mortgage Securities Corp. as depositor (the
"Depositor"), The Bank of New York, as trustee (the "Trustee"), Bishop's Gate
Residential Mortgage Trust, as seller and Cendant Mortgage Corporation, as
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:
