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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event
Reported) August 28, 2000
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. (as depositor
under the Pooling and Servicing Agreement, dated as of August 1,
2000, relating to the CDMC Mortgage-Backed Pass-Through Certificates,
Series 2000-5).
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
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(Exact name of registrant as specified in its charter)
Delaware 333-37616 13-3320910
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
Eleven Madison Avenue 10010
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New York, New York (Zip Code)
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Address of Principal
Executive Offices)
Registrant's telephone number, including area code (212) 325-2000
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<PAGE>
Item 5. Other Events.
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On August 30, 2000, Credit Suisse First Boston Mortgage Securities Corp.
entered into a Pooling and Servicing Agreement dated as of August 1, 2000 (the
"Pooling and Servicing Agreement"), by and among Credit Suisse First Boston
Mortgage Securities Corp., as depositor, Cendant Mortgage Corporation, as
seller and servicer, Bishop's Gate Residential Mortgage Trust, as seller and
The Bank of New York, as trustee. The Pooling and Servicing Agreement is
annexed hereto as Exhibit 1.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial
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Information and Exhibits.
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(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
1. Pooling and Servicing Agreement
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By:: /s/ Greg Petroski
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Name: Greg Petroski
Title: Vice President
Dated: September 13, 2000
<PAGE>
Exhibit Index
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Exhibit Page
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1. Pooling and Servicing Agreement 6
<PAGE>
EXHIBIT 1
EXECUTION COPY
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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 August 1, 2000
relating to
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2000-5
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<PAGE>
<TABLE>
<CAPTION>
Table of Contents
Page
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ARTICLE I
DEFINITIONS..............................................................4
ARTICLE II
CONVEYANCE OF TRUST FUND; REPRESENTATIONS AND WARRANTIES
<S> <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.....................29
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...........................................................................37
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
<PAGE>
EXHIBITS
Exhibit A: Form of Class A Certificate A-1
Exhibit B: Form of Class M-1 Certficate 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 August 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 Maturity Date.
The following table sets forth characteristics of the
Certificates, together with the minimum denominations and integral multiples
in excess thereof in which such Classes shall be issuable (except that one
Certificate of each Class of Certificates 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 $159,812,000 7.75% $25,000.00 $1
Class A-2 $20,163,000 7.75% $25,000.00 $1
Class A-3 $12,923,000 7.75%(1) $25,000.00 $1
Class A-4 $22,455,000 7.75% $25,000.00 $1
Class M-1 $561,000 7.75% $25,000.00 $1
Class B-1 $3,593,000 7.75% $25,000.00 $1
Class B-2 $1,684,000 7.75% $25,000.00 $1
Class B-3 $898,000 7.75% $25,000.00 $1
Class B-4 $1,011,000 7.75% $100,000.00 $1
Class B-5 $561,000 7.75% $100,000.00 $1
Class B-6 $674,424 7.75% $100,000.00 $1
Class P $209,492 (2) $25,000.00 $1,000.00
Class S (3) 7.75% 20% N/A
Class R $100 7.75% 20% N/A
</TABLE>
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(1) On each Distribution Date on or before the Class A-3 Accretion
Termination Date, an amount equal to the Class A-3 Accretion Amount
will be added to the Certificate Principal Balance of the Class A-3
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 $15,940,757.
Set forth below are designations of Classes or Components of
Certificates to the categories used herein:
<TABLE>
<CAPTION>
<S> <C>
Accrual Certificates................................. Class A-3 Certificates.
Book-Entry Certificates.............................. All Classes of Certificates other than the Physical
Certificates.
ERISA-Restricted Certificates........................ Residual Certificates and Subordinate Certificates.
Lockout Certificates................................. Class A-4 Certificates.
Offered Certificates................................. All Classes of Certificates other than the Private
Certificates.
Private Certificates................................. Class B-4, Class B-5, Class B-6, 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 A-4, 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,
Class B-5 and Class B-6 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 $224,545,017.00.
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:
<PAGE>
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
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 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-3
Certificates, after increasing their Certificate Principal Balance on each
Distribution Date on or before the Class A-3 Accretion Termination Date in
respect of the Class A-3 Accrual Amount. On each Distribution Date on or after
the Class A-3 Accretion Termination Date, the entire Class A-3 Accrual Amount
for such Distribution Date will be payable to the Holders of the Class A-3
Certificates, as interest, to the extent not required to fully reduce the
Certificate Principal Balance of the Class A-1 and Class A-2 Certificates to
zero on the Class A-3 Accretion Termination Date; provided, however, that if
the Class A-3 Accretion Termination Date is the Credit Support Depletion Date,
the entire Class A-3 Accrual Amount for that Distribution Date will be payable
as interest to the Holders of the Class A-3 Certificates.
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-3 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 and Class A-2
Certificates has been reduced to zero.
Class A-3 Accrual Amount: With respect to the Class A-3
Certificates and any Distribution Date, the lesser of (a) the Interest
Distribution Amount for the Class A-3 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-3 Certificates for such
Distribution Date. On each Distribution Date on or after the Class A-3
Accretion Termination Date, the entire Class A-3 Accrual Amount for that date
will be payable to the Holders of the Class A-3 Certificates, as interest, to
the extent not required to fully reduce the Certificate Principal Balance of
the Class A-1 and Class A-2 Certificates to zero on the Class A-3 Accretion
Termination Date; provided, however, that if the Class A-3 Accretion
Termination Date is the Credit Support Depletion Date, the entire Class A-3
Accrual Amount for that date will be payable as interest to the Holders of the
Class A-3 Certificates.
Class A-4 Adjusted Percentage: For any Distribution Date,
the product of the Class A-4 Percentage and the Step Down Percentage.
Class A-4 Lockout Principal Distribution Amount: For any
Distribution Date, the Class A-4 Adjusted Percentage of the Senior Principal
Distribution Amount.
Class A-4 Percentage: For any Distribution Date, the lesser
of (a) 100% and (b) the Certificate Principal Balance of the Class A-4
Certificates immediately prior to that Distribution Date divided by the
aggregate Certificate Principal Balance of the Senior 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-4 Percentage as of the
Delivery Date will be approximately 10.43%.
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-3 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 7.75% minus the Net Mortgage Rate on
such Class P Mortgage Loan and the denominator of which is 7.75%.
Class P Mortgage Loan: Any Mortgage Loan with a Net Mortgage
Rate of less than 7.75%.
Class P Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the aggregate of, for all Class P
Mortgage Loans, the product for each such Class P Mortgage Loan of the
applicable Class P Fraction and the sum of (x) scheduled payments of principal
on such Class P Mortgage Loan due (whether or not received), including amounts
which have been advanced as part of an Monthly Advance with respect to such
Distribution Date, (y) the principal portion received in respect of such Class
P Mortgage Loan during the prior calendar month of (1) Curtailments, (2)
Insurance Proceeds, (3) the amount, if any, of repurchase proceeds received
with respect to any such Mortgage Loan which was repurchased as permitted or
required by this Agreement during the calendar month preceding the month of
the Distribution Date, (4) Liquidation Proceeds and (5) 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 7.75%.
Class Unpaid Interest Amounts: As to any Distribution Date
and Class of interest-bearing Certificates, the amount by which the aggregate
Class Interest Shortfalls for such Class on prior Distribution Dates exceeds
the amount distributed on such Class (or, in the case of the Class A-3
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.
Co-op Lease: With respect to a Co-op Loan, the lease with
respect to a dwelling unit occupied by the Mortgagor and relating to the stock
allocated to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing corporation
and a collateral assignment of the related Co-op Lease.
Co-op Stock: With respect to a Co-op Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related residential cooperative housing corporation.
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 2000-5), 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: August 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: August 30, 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 August 30, 2000 by and among DTC, the Depositor and the Trustee.
Determination Date: With respect to each Distribution Date,
the 10th day of the calendar month in which such Distribution Date occurs or,
if such 10th day is not a Business Day, the Business Day immediately
succeeding such Business Day.
Disqualified Organization: Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which
includes any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class 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 18th day of any month, or if such
18th day is not a Business Day, the Business Day immediately following such
18th day, commencing on September 18, 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-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,
$4,490,900, 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 September, 2033.
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 August 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 and Class B Certificates, is equal to a fraction, the
numerator of which is the Initial Certificate Principal Balance of such
Certificate, and the denominator of which is equal to the aggregate Initial
Certificate Principal Balances of all Certificates of the same Class and (b)
in the case of the Class S or Class R Certificates, is set forth on the face
thereof.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government, or any agency or political subdivision thereof.
Premium Rate Mortgage Loans: The Mortgage Loans having Net
Mortgage Rates in excess of 7.75%.
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
August 28, 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; (vi) not be a Co-op Loan unless the Deleted
Mortgage Loan was a Co-op Loan; and (vii) comply with each representation and
warranty relating to the Mortgage Loans set forth in Section 2.04 hereof. Any
Replacement Mortgage Loan that replaces a Class P Mortgage Loan will be
treated as having the same Net Mortgage Rate for purposes of calculating the
Class P Fraction in respect of such Replacement Mortgage Loan.
Required Insurance Policy: With respect to any Mortgage
Loan, any insurance policy that is required to be maintained from time to time
under this Agreement in respect of such Mortgage Loan or the related Mortgaged
Property.
Responsible Officer: When used with respect to the Trustee,
shall mean any officer within the corporate trust department of the Trustee,
including any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
Restricted Class: As defined in Section 4.02(d).
Rule 144A: Rule 144A under the 1933 Act, as in effect from
time to time.
Scheduled Final Distribution Date: September 18, 2030.
Security Agreement: With respect to a Co-op Loan, the
agreement or mortgage creating a security interest in favor of the originator
of the Co-op Loan in the related Co-op Stock.
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, $2,245,000. 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:
<TABLE>
<CAPTION>
DISTRIBUTION DATE OCCURRING IN STEP DOWN PERCENTAGE
<S> <C>
September 2000 through August 2005 0%
September 2005 through August 2006 30%
September 2006 through August 2007 40%
September 2007 through August 2008 60%
September 2008 through August 2009 80%
September 2009 and thereafter 100%
</TABLE>
Stripped Interest Rate: With respect to any Premium Rate
Mortgage Loan, the excess, if any, of the Net Mortgage Rate for such Mortgage
Loan over 7.75%.
Sub-Servicer: Any other entity with respect to any Mortgage
Loan under any Sub-Servicing Agreement applicable to such Mortgage Loan and
any successors and assigns under such Sub-Servicing Agreement.
Sub-Servicing Agreement: Any servicing agreement between the
Servicer and a Sub-Servicer pursuant to which the Servicer delegates any of
its servicing responsibilities with respect to any of the Mortgage Loans.
Subordinate Certificates: As specified in the Preliminary
Statement.
Subordinate Liquidation Amount: For any Distribution Date,
the excess, if any, of the aggregate Liquidation Principal of all Mortgage
Loans which became Liquidated Mortgage Loans during the related Prepayment
Period over the Senior Liquidation Amount for such Distribution Date.
Subordinate Percentage: As to any Distribution Date, 100%
minus the Senior Percentage for such Distribution Date. The Subordinate
Percentage as of the Delivery Date will be approximately 4.00%.
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.
U.S. Person: 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
any political subdivision thereof, 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 2000-5, 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 2000-5" 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, except in the case of one Mortgage Loan
representing 0.04% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date since its date of
origination, 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 0.98%
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 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 2000-5, 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 2000-5.
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 A-4, Class
M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, 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 A-4,
Class M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
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 of the 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.
<PAGE>
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) and cause the Trust Fund to fail to qualify as a
REMIC under the Code.
SECTION 3.02 Sub-Servicing Agreements between Servicer
and Sub-Servicers; Enforcement of the
Obligations of Sub-Servicers.
(a) The Servicer may enter into Sub-Servicing Agreements
with Sub-Servicers for the servicing and administration of all or part of the
Mortgage Loans. References in this Agreement to actions taken or to be taken
by the Servicer in servicing the Mortgage Loans include actions taken or to be
taken by a Sub-Servicer on behalf of the Servicer. Each Sub-Servicing
Agreement will be on terms consistent with this Agreement. The Servicer shall
give the Trustee prompt written notice of the appointment of any Sub-Servicer.
For purposes of this Agreement, the receipt by a Sub-Servicer of any amount
with respect to a Mortgage Loan (other than amounts representing servicing
compensation or reimbursement for an advance) shall be treated as the receipt
by the Servicer of the amount. The Sub-Servicer shall deposit all collections
in an Eligible Account.
(b) As part of its servicing activities hereunder, the
Servicer, for the benefit of the Depositor, the Trustee and the
Certificateholders, shall supervise, administer, monitor and oversee the
servicing of the Mortgage Loans that are not serviced by it directly, and
shall enforce the obligations of each Sub-Servicer under the related
Sub-Servicing Agreement. Such enforcement shall include, without limitation,
the legal prosecution of claims, termination of Sub-Servicing Agreements, as
appropriate, and the pursuit of other appropriate remedies, and shall be in
such form and carried out to such an extent and at such time as the Servicer,
in its good faith business judgment, would require were it the owner of the
related Mortgage Loans. The Servicer shall pay the costs of such enforcement
at its own expense, but shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement only to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys fees against the
party against whom such enforcement is directed. The Servicer shall not waive
any event of default by a Sub-Servicer under a Sub-Servicing Agreement which
is a failure to remit any payment required to be made by such Sub-Servicer
that would result in an Event of Default under this Agreement.
(c) The Servicer may terminate any Sub-Servicing Agreement
in accordance with its terms and without any limitation by virtue of this
Agreement. If the Servicer is no longer the Servicer under this Agreement the
Servicer shall, if so directed by the Trustee or the successor Servicer,
terminate each Sub-Servicing Agreement that may have been entered into, and
the Trustee and the successor servicer shall not be considered to have assumed
any of the Servicer's interest in any Sub-Servicing Agreements, or to have
replaced the Servicer as a party to any Sub-Servicing Agreement.
SECTION 3.03 Termination of the Rights of Sub-Servicers.
If the Servicer terminates the rights of a Sub-Servicer
under any Sub-Servicing Agreement, the Servicer shall service the Mortgage
Loans directly pursuant to and in accordance with the terms of this Agreement,
or at the Servicer's election, enter into a substitute servicing agreement
with another mortgage loan servicing company 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.
<PAGE>
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-3
Accretion Termination Date, to the Class A-1 Certificates until
the Certificate Principal Balance of the Class A-1 Certificates
is reduced to zero and then to the Class A-2 Certificates until
the Certificate Principal Balance of the Class A-2 Certificates
is reduced to zero, as principal, any Class A-3 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-3 Certificates, the Class A-3
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-4 Certificates, the Class
A-4 Lockout Principal Distribution Amount, until the
Certificate Principal Balance of the Class A-4
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;
(E) fifth, to the Class A-3 Certificates, until the
Certificate Principal Balance of the Class A-3
Certificates has been reduced to zero; and
(F) sixth, to the Class A-4 Certificates, any
remaining portion of that Senior Principal Distribution
Amount, until the Certificate Principal Balance of the
Class A-4 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;
(M) thirteenth, to the Class B-6 Certificates, an
amount allocable to interest equal to the Interest
Distribution Amount for such Class for such Distribution
Date; and
(N) fourteenth, to the Class B-6 Certificates, an
amount allocable to principal equal to its Pro Rata Share
for such Distribution Date until the Certificate Principal
Balance of Class B-6 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-3
Accretion Termination Date, the Class A-3 Accrual Amount for such
Distribution Date shall not be distributed as interest with respect
to the Class A-3 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-3 Accretion Termination Date, the Class A-3 Accrual
Amount shall be deemed to have been added on such Distribution Date
to the Certificate Principal Balance of the Class A-3 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-3 Accrual
Amount added to the Certificate Principal Balance of the
Accrual 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.
<PAGE>
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.
<PAGE>
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 Certificateholder desiring to transfer its
Certificate provides the Trustee with a certification as set forth in
paragraph 6 of Exhibit L or an Opinion of Counsel which establishes to the
reasonable satisfaction of the Depositor and the Trustee that the purchase and
holding of an ERISA-Restricted Certificate by, on behalf of or with "plan
assets" of such plan is permissible under applicable local law, would not
constitute or result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code, and would not subject the Depositor or the Trustee
to any obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in this Agreement or any
other liability. The Trustee shall require that such prospective transferee
certify to the Trustee in writing the facts establishing that such transferee
is not such a plan and is not acting on behalf of or using "plan assets" of
any such plan to effect such acquisition. For purposes of the second preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a
Private Certificate or a Residual Certificate, in the event the representation
letter referred to in the preceding sentence is not furnished, such
representation shall be deemed to have been made to the Trustee by the
transferee's (including an initial acquiror's) acceptance of the
ERISA-Restricted Certificates.
(g) Additional restrictions on transfers of the Class R
Certificates to Disqualified Organizations are set forth below:
(i) Each Person who has or who acquires any ownership
interest in a Class R Certificate shall be deemed by the
acceptance or acquisition of such ownership interest to have
agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee or its designee under clause
(iii)(A) below to deliver payments to a Person other than such
Person and to negotiate the terms of any mandatory sale under
clause (iii)(B) below and to execute all instruments of
transfer and to do all other things necessary in connection
with any such sale. The rights of each Person acquiring any
ownership interest in a Class R Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any ownership
interest in a Class R Certificate shall be other than a
Disqualified Organization and shall promptly notify the
Trustee of any change or impending change in its status as
other than a Disqualified Organization.
(B) In connection with any proposed transfer of any
ownership interest in a Class R Certificate to a U.S.
Person, the Trustee shall require delivery to it, and
shall not register the transfer of a Class R Certificate
until its receipt of (1) an affidavit and agreement (a
"Transferee Affidavit and Agreement" attached hereto as
Exhibit K) from the proposed transferee, in form and
substance satisfactory to the 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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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 t`e 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 2000-5.
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.
<PAGE>
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 Latest Possible Maturity Date.
The Mortgage Loan Repurchase Price for any such Optional
Termination of the Trust Fund shall be equal to the aggregate Principal
Balance of the Mortgage Loans as of the date of repurchase, together with
accrued and unpaid interest thereon from the date to which such interest was
paid or advanced at the sum of the applicable 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.
<PAGE>
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 2000-5, 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 SM55, Mt. Laurel, New
Jersey 08054, Attention: Vice President-Secondary Marketing, fax number (856)
439-4900; (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 August, 2000.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., as Depositor
By: _______________________________
Name:
Title:
CENDANT MORTGAGE CORPORATION,
as Seller and Servicer
By: _______________________________
Name:
Title:
BISHOP'S GATE RESIDENTIAL
MORTGAGE TRUST, as Seller
By: Cendant Mortgage Corporation,
as administrative agent
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: _______________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this [---] day of August, 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 August, 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 August, 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 August, 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 2000-5, CLASS [A----]
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP ______________ Initial Aggregate Class [A--]
Certificate Principal Balance:
$__________
Certificate No. Pass-Through Rate: Initial Certificate Principal
Balance Of This Certificate:
$____________________
First Distribution Date: Final Scheduled
_________________ Distribution Date:
_________________.
THIS CERTIFIES THAT [___________] is the registered owner
of a beneficial interest in the Trust Fund referred to below consisting of a
pool of fixed-rate conventional mortgage loans secured by first liens on one-
to four-family residential real properties (the "Mortgage Loans") and certain
other property held in trust transferred to the Trust Fund by Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"), and certain related
property. The Trust Fund was created pursuant to the Pooling and Servicing
Agreement, dated as of August 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
2000-5 (the "Certificates"), which is comprised of the following fourteen
Classes: Class A-1, Class A-2, Class A-3, Class A-4, Class P, Class S, Class
R, Class M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6. 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 18th day of each calendar month, or,
if such 18th day is not a Business Day, the Business Day immediately following
such 18th day (each, a "Distribution Date"), commencing September 18, 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: August 30, 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.
EXCEPT AS OTHERWISE SET FORTH IN SECTION 6.02(f) OF 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, 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 2000-5, 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
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
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: ___________
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 August 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.
Except as otherwise set forth in Section 6.02(f) of 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 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
2000-5 (the "Certificates"), which is comprised of the following fourteen
Classes: Class A-1, Class A-2, Class A-3, Class A-4, Class P, Class S, Class
R, Class M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6. 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 18th day of each calendar month, or,
if such 18th day is not a Business Day, the Business Day immediately following
such 18th day (each, a "Distribution Date"), commencing September 18, 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: August 30, 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 _______________________________________
other Tax Identification Signature by or on behalf of assignor
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.
EXCEPT AS OTHERWISE SET FORTH IN SECTION 6.02(f) OF 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, 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 2000-5, [CLASS B----]
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP __________ Initial Aggregate Class [B--]
Certificate Principal Balance:
$__________
Certificate No. Pass-Through Rate: _____% Initial Certificate Principal
Balance Of This Certificate:
$__________
First Distribution Date: Final Scheduled
Distribution Date: .
THIS CERTIFIES THAT [_________________] is the registered
owner of a beneficial interest in the Trust Fund referred to below consisting
of a pool of fixed-rate conventional mortgage loans secured by first liens on
one- to four-family residential real properties (the "Mortgage Loans") and
certain other property held in trust transferred to the Trust Fund by Credit
Suisse First Boston Mortgage Securities Corp. (the "Depositor"), and certain
related property. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement, dated as of August 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.
Except as otherwise set forth in Section 6.02(f) of 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 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
2000-5 (the "Certificates"), which is comprised of the following fourteen
Classes: Class A-1, Class A-2, Class A-3, Class A-4, Class P, Class S, Class
R, Class M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6. 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 18th day of each calendar month, or,
if such 18th day is not a Business Day, the Business Day immediately following
such 18th day (each, a "Distribution Date"), commencing September 18, 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: August 30, 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 (PRVATE) CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. OR THE TRUSTEE REFERRED TO
BELOW, OR OF ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENT AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE PURCHASER IS AN INSURANCE
COMPANY, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-5, [CLASS B____]
Evidencing an undivided interest in a Trust Fund whose assets consist of a
pool of fixed-rate, conventional mortgage loans secured by first liens on one-
to four-family, residential real properties and certain other property held in
trust transferred by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
CUSIP ________ Initial Aggregate Class [B--]
Certificate Principal Balance:
$__________
Certificate No. Pass-Through Rate: ____% Initial Certificate Principal
Balance Of This Certificate:
$__________
First Distribution
Date: Final Scheduled
Distribution Date:
THIS CERTIFIES THAT [_________________] is the registered
owner of a beneficial interest in the Trust Fund referred to below consisting
of a pool of fixed-rate conventional mortgage loans secured by first liens on
one- to four-family residential real properties (the "Mortgage Loans") and
certain other property held in trust transferred to the Trust Fund by Credit
Suisse First Boston Mortgage Securities Corp. (the "Depositor"), and certain
related property. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement, dated as of August 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 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
2000-5 (the "Certificates"), which is comprised of the following fourteen
Classes: Class A-1, Class A-2, Class A-3, Class A-4, Class P, Class S, Class
R, Class M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6. 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 18th day of each calendar month, or,
if such 18th day is not a Business Day, the Business Day immediately following
such 18th day (each, a "Distribution Date"), commencing September 18, 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: August 30, 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:________________________ ________________________________________
______________________________ Signature by or on behalf of assignor
Social Security or (signature must be signed as registered)
other Tax Identification
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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-5, 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 August 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.
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
2000-5 (the "Certificates"), which is comprised of the following fourteen
Classes: Class A-1, Class A-2, Class A-3, Class A-4, Class P, Class S, Class
R, Class M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6. 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 18th day of each calendar month, or,
if such 18th day is not a Business Day, the Business Day immediately following
such 18th day (each, a "Distribution Date"), commencing September 18, 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: August 30, 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.
<PAGE>
CDMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATE
SERIES 2000-5, 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 August 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.
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
2000-5 (the "Certificates"), which is comprised of the following fourteen
Classes: Class A-1, Class A-2, Class A-3, Class A-4, Class P, Class S, Class
R, Class M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6. 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 18th day of each calendar month, or,
if such 18th day is not a Business Day, the Business Day immediately following
such 18th day (each, a "Distribution Date"), commencing September 18, 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: August 30, 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, 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 2000-5, 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 August 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 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
2000-5 (the "Certificates"), which is comprised of the following fourteen
Classes: Class A-1, Class A-2, Class A-3, Class A-4, Class P, Class S, Class
R, Class M-1, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6. 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 18th day of each calendar month, or,
if such 18th day is not a Business Day, the Business Day immediately following
such 18th day (each, a "Distribution Date"), commencing September 18, 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: August 30, 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.
<PAGE>
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.
<PAGE>
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 PI] [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 Section 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.
<PAGE>
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:
