EXECUTION COPY
CWMBS, INC.,
Depositor
COUNTRYWIDE SECURITIES CORPORATION,
Underlying Certificate Seller
and
STATE STREET BANK AND TRUST COMPANY,
Trustee
-------------------------------
TRUST AGREEMENT
Dated as of October 30, 2000
-------------------------------
CWMBS, Inc.
Resecuritization Mortgage Trust
Series 2000-7R
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Table of Contents
Page
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ARTICLE I
DEFINITIONS
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Section 1.01. Defined Terms..........................................................................4
ARTICLE II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATE; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Deposited Underlying Certificate....................................15
Section 2.02. Acceptance by Trustee.................................................................16
Section 2.03. Representations and Warranties of the Underlying
Certificate Seller....................................................................16
Section 2.04. Representations and Warranties of the Depositor.......................................18
Section 2.05. Issuance of Certificates..............................................................19
Section 2.06. Miscellaneous REMIC Provisions........................................................19
ARTICLE III
ADMINISTRATION OF THE TRUST FUND; PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Defaults by the Underlying Trust......................................................21
Section 3.02. Distribution Account..................................................................21
Section 3.03. Permitted Withdrawals From the Distribution Account...................................22
Section 3.04. Distributions.........................................................................22
Section 3.05. Allocation of Realized Losses.........................................................24
Section 3.06. Statements to Certificateholders......................................................24
Section 3.07. Reports of the Trustee; Distribution Account..........................................25
Section 3.08. Access to Certain Documentation and Information.......................................25
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates......................................................................27
Section 4.02. Certificate Register; Registration of Transfer and Exchange
of Certificates.......................................................................27
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates.....................................31
Section 4.04. Persons Deemed Owners.................................................................31
Section 4.05. Access to List of Certificateholders' Names and Addresses.............................32
Section 4.06. Maintenance of Office or Agency. .....................................................32
ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01. Duties of Trustee.....................................................................33
Section 5.02. Certain Matters Affecting the Trustee.................................................33
Section 5.03. Trustee Not Liable for Certificates or Deposited
Underlying Certificate. ..............................................................35
Section 5.04. Trustee May Own Certificates. ........................................................35
Section 5.05. Trustee's Fees and Expenses...........................................................35
Section 5.06. Indemnification of the Trustee........................................................35
Section 5.07. Eligibility Requirements for Trustee. ................................................36
Section 5.08. Resignation and Removal of Trustee....................................................36
Section 5.09. Successor Trustee.....................................................................37
Section 5.10. Merger or Consolidation of Trustee....................................................38
Section 5.11. Appointment of Co-Trustee or Separate Trustee.........................................38
Section 5.12. Tax Matters...........................................................................39
Section 5.13. Periodic Filings. ....................................................................41
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the Depositor............................................................42
Section 6.02. Merger, Consolidation or Conversion of the Depositor..................................42
Section 6.03. Limitation on Liability of the Depositor and Others...................................42
ARTICLE VII
TERMINATION
Section 7.01. Termination upon Liquidation or Purchase of Deposited
Underlying Certificate................................................................44
Section 7.02. Final Distribution on the Certificates................................................44
Section 7.03. Additional Termination Requirements...................................................45
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment.............................................................................47
Section 8.02. Action Under and Conflicts With the Underlying Agreement..............................48
Section 8.03. Recordation of Agreement..............................................................48
Section 8.04. Certain REMIC Matters.................................................................49
Section 8.05. Limitation on Rights of Certificateholders............................................49
Section 8.06. Governing Law.........................................................................51
Section 8.07. Notices...............................................................................51
Section 8.08. Severability of Provisions............................................................51
Section 8.09. Successors and Assigns................................................................52
Section 8.10. Article and Section Headings..........................................................52
Section 8.11. Certificates Nonassessable and Fully Paid.............................................52
Section 8.12. Protection of Assets..................................................................52
Schedule I - Deposited Underlying Certificate and Underlying Agreement
Exhibit A-1 - Form of Class A-1 Certificate...................................................................A-1-1
Exhibit A-2 - Form of Class A-2 Certificate...................................................................A-2-1
Exhibit A-3 - Form of Class A-3 Certificate...................................................................A-3-1
Exhibit A-4 - Form of Class A-4 Certificate...................................................................A-4-1
Exhibit A-5 - Form of Class A-5 Certificate...................................................................A-5-1
Exhibit B - Form of Residual Certificate........................................................................B-1
Exhibit C - Form of Transferor Affidavit........................................................................C-1
Exhibit D - Form of Transfer Affidavit for the Class A-R Certificate............................................D-1
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TRUST AGREEMENT, dated as of October 30, 2000, by and among CWMBS, Inc.,
as depositor (the "Depositor"), Countrywide Securities Corporation, as
underlying certificate seller (the "Underlying Certificate Seller"), and State
Street Bank and Trust Company, as trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Underlying Certificate Seller and the Trustee
desire to enter into a trust agreement dated as of the date hereof (the "Trust
Agreement"); and
WHEREAS, the Underlying Certificate Seller has transferred the Deposited
Underlying Certificate (as defined herein) to the Depositor pursuant to a bill
of sale executed by the Underlying Certificate Seller in favor of the
Depositor;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. The Trust Fund for federal income
tax purposes will consist of a REMIC. The REMIC hereunder will consist of all
of the assets constituting the Trust Fund and will be evidenced by the Regular
Certificates and the Residual Certificates. The "latest possible maturity
date" for federal income tax purposes of all interests created hereby will be
the Latest Possible Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess
thereof in which such Classes shall be issuable (except that one Certificate
of each Class of Certificates other than the Class A-R Certificate may be
issued in a different amount):
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Integral
Initial Class Multiples
Certificate Pass-Through Minimum in Excess of
Class Designation Balance Rate Denomination Minimum
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Class A-1 $50,000,000.00 6.50% $25,000.00 $1,000.00
---------------------- ------------------------- ---------------- ----------------------------- ---------------------
Class A-2 $50,500,000.00 6.50% $25,000.00 $1,000.00
---------------------- ------------------------- ---------------- ----------------------------- ---------------------
Class A-3 $42,476,000.00 6.50% $25,000.00 $1,000.00
---------------------- ------------------------- ---------------- ----------------------------- ---------------------
Class A-4 $21,887,655.20 6.50% $25,000.00 $1,000.00
---------------------- ------------------------- ---------------- ----------------------------- ---------------------
Class A-5 $86,813,000.00 6.50% $25,000.00 $1,000.00
====================== ========================= ================ ============================= =====================
Class A-R $100.00 6.50% $100.00 N/A
====================== ========================= ================ ============================= =====================
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Set forth below are designations of Classes of Certificates to the categories
used herein:
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Accretion Directed
Certificates........................ Class A-1, Class A-2, Class A-3 and Class A-5 Certificates.
Accrual Certificates................ Class A-4 Certificates.
Accrual Components.................. None.
Book-Entry Certificates............. All Classes of Certificates other than the Physical Certificates.
Component Certificates.............. None.
Components.......................... For purposes of calculating distributions, the Component Certificates
will be comprised of multiple payment components having the designations,
Initial Component Balances and Pass-Through Rates set forth below:
Initial
Component
Designation Balance Pass-Through Rate
----------- ------- -----------------
N/A N/A N/A
Delay Certificates.................. All interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
ERISA-Restricted
Certificates........................ Residual Certificates.
Floating Rate Certificates.......... None.
Inverse Floating Rate
Certificates........................ None.
COFI Certificates................... None.
LIBOR Certificates.................. None.
Non-Delay Certificates.............. None.
Notional Amount
Certificates........................ None.
Offered Certificates................ All Classes of Certificates.
Physical Certificates............... Residual Certificates.
Planned Principal Classes........... None.
Primary Planned Principal
Classes............................. None.
Principal Only
Certificates........................ None.
Private Certificates................ None.
Rating Agencies..................... S&P and Fitch.
Regular Certificates................ All Classes of Certificates other than the Residual Certificates.
Residual Certificates............... Class A-R Certificate.
Scheduled Principal
Classes............................. None.
Secondary Planned Principal
Class............................... None.
Senior Certificates................. Class A-1, Class A-2, Class A-3, Class A-4, Class A-5 and Class A-R
Certificates.
Subordinated Certificates .......... None.
Support Classes..................... None.
Targeted Principal
Classes............................. None.
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With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accrual Amount: With respect to any Distribution Date prior to or on the
Accrual Termination Date, the amount of Available Interest Funds for such
Distribution Date equal to the amount that shall be allocable to interest on,
but added to the Class Certificate Balance of, the Class A-4 Certificates
pursuant to Section 3.04(a)(i) hereof.
Accrual Termination Date: With respect to the Class A-4 Certificates, the
Distribution Date on which the Class Certificate Balance of the Class A-3
Certificates has been reduced to zero.
Agreement: This Trust Agreement and all amendments hereof and supplements
hereto.
Allocated Underlying Net Interest Shortfalls: As to any Distribution
Date, the Underlying Net Interest Shortfalls allocated to the Deposited
Underlying Certificate in accordance with the Underlying Agreement in
connection with distributions thereon for such Distribution Date.
Allocated Underlying Realized Losses: As to any Distribution Date, the
Underlying Realized Losses (including Underlying Excess Losses) allocated to
the Deposited Underlying Certificate in accordance with the Underlying
Agreement in connection with distributions thereon for such Distribution Date.
Applicable State and Local Tax Law: For purposes hereof, the Applicable
State and Local Tax Law shall be (a) the tax laws, rules or regulations of the
State of New York and the Commonwealth of Massachusetts; and (b) such other
state or local tax laws, rules or regulations whose applicability shall have
been brought to the attention of the Trustee by either (i) an opinion of
counsel delivered to it, or (ii) written notice from the appropriate taxing
authority as to the applicability of such state or local tax laws, rules or
regulations.
Available Interest Funds: As to any Distribution Date, the aggregate of
all previously undistributed amounts received by the Trustee on or prior to
such Distribution Date as distributions of interest on the Deposited
Underlying Certificate.
Available Principal Funds: As to any Distribution Date, the aggregate of
all previously undistributed amounts received by the Trustee on or prior to
such Distribution Date as distributions of principal on the Deposited
Underlying Certificate, reduced by the sum of expenses and liabilities
reimbursable to the Depositor pursuant to Section 6.03 hereof and any taxes
imposed on the Trust to be paid from amounts otherwise distributable to
Certificateholders pursuant to Section 5.12 hereof (in each case, that have
not been previously paid by a reduction of Available Principal Funds).
Book-Entry Certificate: 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 the City of New York, New York, or the
State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Certificate: Any one of the Certificates executed by the Trustee
substantially in the forms attached hereto as exhibits.
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof (A)
minus the sum of (i) all distributions of principal previously made with
respect thereto and (ii) all Allocated Underlying Realized Losses allocated
thereto, as provided in the proviso to Section 3.05(d) and (B) in the case of
the Class A-4 Certificates, increased by the Accrual Amount added to the Class
Certificate Balance of the Class A-4 Certificates prior to such date.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed
not to be Outstanding and the Percentage Interest evidenced thereby shall not
be taken into account in determining whether the requisite amount of
Percentage Interests necessary to effect such consent has been obtained;
provided, however, that if any such Person (including the Depositor) owns 100%
of the Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any provision
hereof that requires the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Depositor
or any affiliate of the Depositor in determining which Certificates are
registered in the name of an affiliate of the Depositor.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
4.02(a).
Class: All Certificates bearing the same designation as set forth in the
Preliminary Statement.
Class A Certificates: All of the Class A-1, Class A-2, Class A-3, Class
A-4 and Class A-5 Certificates.
Class A-1 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-1 hereto.
Class A-2 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-2 hereto.
Class A-3 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-3 hereto.
Class A-4 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-4 hereto.
Class A-5 Certificates: The Certificates executed and countersigned by
the Trustee substantially in the form set forth in Exhibit A-5 hereto.
Class A-R Certificate: The single Certificate executed and countersigned
by the Trustee substantially in the form set forth in Exhibit B hereto.
Class Certificate Balance: With respect to any Class and as to any date
of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class, the sum of (i) one month's
interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class on the related Class Certificate Balance,
subject to reduction as provided in 3.04(d) and (ii) any Class Unpaid Interest
Amounts for such Class.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
Closing Date: October 30, 2000.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Corporate Trust Office: The designated office of the Trustee in the
Commonwealth of Massachusetts at which at any particular time its corporate
trust business with respect to this Agreement shall be administered, which
office at the date of the execution of this Agreement is located at 2 Avenue
de Lafayette, 6th Floor, Boston, MA 02111, Attention: Global Investor Services
Group - Corporate Trust, Ref: CWMBS 2000-7R, and which is the address to which
notices to and correspondence with the Trustee should be directed.
Definitive Certificate: Any definitive, fully registered Certificate.
Delayed Underlying Distributions: As defined in Section 3.04(f).
Delayed Underlying Distributions Deposit Period: With respect to any
Delayed Underlying Distributions, the period from (i) the Underlying
Distribution Date on which such Delayed Underlying Distributions were due to
be distributed on the Deposited Underlying Certificate to (ii) the
Distribution Date on which such Delayed Underlying Distributions are
distributed to Holders of Certificates pursuant to Section 3.04(f).
Denomination: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Certificate Balance of this Certificate."
Deposited Underlying Certificate: As set forth on Schedule I hereto.
Depositor: CWMBS, Inc., a Delaware corporation, or its successors in
interest.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede
& Co. The Depository shall at all times be a "clearing corporation" as defined
in Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York
and a "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.02 in the name of the Trustee
for the benefit of the Certificateholders and designated "State Street Bank
and Trust Company in trust for registered holders of CWMBS, Inc.
Resecuritization Mortgage Certificates, Series 2000-7R." Funds in the
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if such 25th day is not a Business Day, the
next succeeding Business Day, commencing in November 2000.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of each Rating Agency at the time any amounts are
held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC
(to the limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with (a) the trust department of a federal or state
chartered depository institution or (b) a trust company, acting in its
fiduciary capacity or (iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 8.07 the
address for notices to Fitch shall be Fitch, Inc., One State Street Plaza, New
York, New York 10004, Attention: Residential Mortgage Surveillance Group, or
such other address as Fitch may hereafter furnish to the Depositor and the
Trustee.
Initial Class Certificate Balance: With respect to each Class of
Certificates, the Class Certificate Balance of such Class on the Closing Date.
Interest Accrual Period: With respect to each Class of Delay Certificates
and any Distribution Date, the calendar month prior to the month of such
Distribution Date.
Investment Company Act: The Investment Company Act of 1940, as amended.
Latest Possible Maturity Date: The Distribution Date in January 25, 2031.
Majority in Interest: As to any Class of Certificates, the Holders of
Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
Moody's: Moody's Investors Service, Inc., or any successor thereto. If
Moody's is designated as a Rating Agency in the Preliminary Statement, the
address for notices to Moody's shall be Moody's Investors Service, Inc., 99
Church Street, New York, New York 10007, Attention: Residential Pass-Through
Monitoring, or such other address as Moody's may hereafter furnish to the
Depositor.
Officers' Certificate: A certificate signed by the Chairman of the Board,
the President or a Vice President or Assistant Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, including, in-house counsel, reasonably acceptable to the
Trustee; provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (i) in fact be
independent of the Depositor, (ii) not have any direct financial interest in
the Depositor or in any affiliate thereof, and (iii) not be connected with the
Depositor as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Ownership Interest: As to any Certificate, any ownership interest in such
Certificate including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or
beneficial.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Pass-Through Rate: For any interest bearing Class of Certificates, the
per annum rate set forth in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the United
States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency, or such lower rating as will
not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each Rating
Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each
Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or long term
unsecured debt obligations of such depository institution or trust
company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Moody's is not a Rating
Agency) are then rated one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or such
lower ratings as will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by either Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not result
in the downgrading or withdrawal of the rating then assigned to the
Certificates by either Rating Agency;
(vii) repurchase obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal) described
in clause (iv) above;
(viii) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face amount
thereof) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state thereof
which, at the time of such investment, have one of the two highest
ratings of each Rating Agency (except if the Rating Agency is Moody's,
such rating shall be the highest commercial paper rating of Moody's for
any such securities), or such lower rating as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates
by either Rating Agency as evidenced by a signed writing delivered by
each Rating Agency;
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if Fitch is a Rating Agency
and has not rated the portfolio, the highest rating assigned by Moody's)
and restricted to obligations issued or guaranteed by the United States
of America or entities whose obligations are backed by the full faith and
credit of the United States of America and repurchase agreements
collateralized by such obligations; and
(x) such other investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(l) of the
Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, an estate whose
income from sources without the United States is includible in gross income
for United States federal income tax purposes regardless of its connection
with the conduct of a trade or business within the United States or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust unless such Person
has furnished the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8EC1 or any applicable successor form, and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Residual Certificate to such
Person may cause the REMIC hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with the exception of the Federal Home Loan Mortgage Corporation, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture, bank,
joint-stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
Purchase Price: As defined in Section 2.03(a) hereof.
Rating Agencies: S&P and Fitch.
Record Date: The last Business Day of the calendar month preceding the
month in which such Distribution Date occurs.
Regular Certificates: As described in the Preliminary Statement.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation, revenue
ruling, revenue procedure or other official announcement or interpretation
relating to REMICs and the REMIC Provisions issued after the Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to real
estate mortgage investment conduits, which appear at sections 860A through
860G of 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 as well as provisions of applicable state laws.
Residual Certificates: As described in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant
Secretary, 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 to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Rule 3a-7: Rule 3a-7 of the Investment Company Act, as then in effect (or
any successor rule).
S&P: Standard & Poor's, a division of The McGraw-Hill Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 8.07 the address for notices to S&P shall be Standard &
Poor's, 26 Broadway, 15th Floor, New York, New York 10004, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish to
the Depositor and the Trustee.
Securities Intermediary: The meaning specified in Section 8-102(a)(14) of
the UCC. The Securities Intermediary shall be, initially, State Street Bank
and Trust Company.
Start-up Day: With respect to the REMIC hereunder, the day designated as
such pursuant to Section 2.06(b).
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulation Section 1.860F-4(d) and temporary
Treasury regulation Section 301.6231(a)(7)1T. The Holder of the Class A-R
Certificate shall be the Tax Matters Person, and the Trustee shall be
appointed as agent of the Tax Matters Person, pursuant to Section 2.06(c).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: A certificate substantially in the form of Exhibit D
annexed hereto.
Transferor Affidavit: A certificate substantially in the form of Exhibit
C hereto.
Trustee: State Street Bank and Trust Company and its successors and, if a
successor trustee is appointed hereunder, such successor.
Trust Fund: The corpus of the trust created by this Agreement and
evidenced by the Certificates, consisting of: (i) the Deposited Underlying
Certificate, (ii) all distributions due on the Deposited Underlying
Certificate after October 25, 2000, (iii) the Distribution Account and such
assets as are deposited therein from time to time and (iv) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing.
UCC: The Uniform Commercial Code as in effect in the State of New York as
of the date hereof.
Underlying Agreement: The Pooling and Servicing Agreement dated as of
January 1, 1999 between GE Capital Mortgage Services, Inc., as seller and
servicer, and State Street Bank and Trust Company, as trustee, as may be
amended, supplemented or otherwise modified from time to time in accordance
with its terms.
Underlying Certificate Account: Means the "Certificate Account" as
defined in the Underlying Agreement.
Underlying Certificate Seller: Countrywide Securities Corporation, a
California corporation, or its successors in interest.
Underlying Excess Losses: Means "Excess Losses" as defined in the
Underlying Agreement.
Underlying Net Interest Shortfalls: Means "Net Interest Shortfalls" as
defined in the Underlying Agreement.
Underlying Realized Losses: Means "Realized Losses" as defined in the
Underlying Agreement.
Underlying Servicer's Certificate: Means the "Servicer's Certificate" as
defined in the Underlying Agreement.
Underlying Trust: Means the "Trust Fund" as defined in the Underlying
Agreement.
Underlying Trustee: Means "Trustee" as defined in the Underlying
Agreement.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, the Voting Rights shall be allocated among Holders of the
Classes of Certificates (and among the Certificates within each Class of
Certificates) in proportion to their respective Class Certificate Balances or
Certificate Balances, as the case may be, on such date.
ARTICLE II
CONVEYANCE OF THE DEPOSITED UNDERLYING CERTIFICATE;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Deposited Underlying Certificate. The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, convey, sell and assign to the Trustee, on behalf of the Holders of
the Certificates, without recourse, all the right, title and interest of the
Depositor in and to the Deposited Underlying Certificate, including all
distributions thereon due after October 25, 2000, and all proceeds of the
foregoing. The Underlying Certificate Seller and the Depositor jointly and
severally agree to transfer to the Trustee promptly upon receipt (by wire
transfer of immediately available funds), any amounts it receives in respect
of the Deposited Underlying Certificate due thereon after October 25, 2000.
The transfer of the Deposited Underlying Certificate and all other assets
constituting the Trust Fund is absolute and is intended by the parties hereto
as a sale. Except to the extent required to have the Deposited Underlying
Certificate reregistered in its own name or a nominee name, the Trustee shall
cause the beneficial ownership interest in the Deposited Underlying
Certificate to be registered with the Depository in the name of the Securities
Intermediary for the account of the Trustee. The Trustee shall not assign,
sell, dispose of or transfer any interest in the Deposited Underlying
Certificate or any other asset constituting the Trust Fund (except as may be
expressly provided by this Agreement), or permit the Deposited Underlying
Certificate or any other asset constituting the Trust Fund to be subjected to
any lien, claim or encumbrance arising by, through or under the Trustee or any
person claiming by, through or under the Trustee. The Depositor agrees to
provide to the Trustee all documents required for the transfer to the Trustee
of the Deposited Underlying Certificate.
It is intended that the conveyance of the Deposited Underlying
Certificate by the Depositor to the Trustee as provided in this Section be,
and be construed as, a sale of the Deposited Underlying Certificate by the
Depositor to the Trustee for the benefit of the Certificateholders. It is,
further, not intended that such conveyance be deemed a pledge of the Deposited
Underlying Certificate by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor. However, in the event that the Deposited
Underlying Certificate is held to be the property of the Depositor, or if for
any reason this Agreement is held or deemed to create a security interest in
the Deposited Underlying Certificate, then it is intended that (a) this
Agreement shall also be deemed to be a security agreement within the meaning
of Articles 8 and 9 of the UCC and the corresponding articles of the Uniform
Commercial Code of any other applicable jurisdiction; (b) the conveyance
provided for in this Section shall be deemed to be a grant by the Depositor to
the Trustee for the benefit of the Certificateholders of a security interest
in all of the Depositor's right, title and interest, whether now owned or
hereafter acquired, in and to (A) the Deposited Underlying Certificate, (B)
all distributions thereon due to the holder of the Deposited Underlying
Certificate after October 25, 2000 and (C) all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts from time to time
held or invested in the Distribution Account, whether in the form of cash,
instruments, securities or other property; (c) the registration of the
beneficial ownership interest in the Deposited Underlying Certificate with the
Depository in the name of the Securities Intermediary for the account of the
Trustee and the possession by the Trustee or its agent of the Deposited
Underlying Certificate and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to
be "possession by the secured party" or possession by a purchaser or a person
designated by such secured party, for purposes of perfecting the security
interest pursuant to the UCC and the Uniform Commercial Code of any other
applicable jurisdiction (including, without limitation, Section 9-305, 8-313
or 8-321 thereof); and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law. The Depositor and the Trustee, at the
Depositor's direction and expense, shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Deposited
Underlying Certificate and other assets constituting the Trust Fund described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement.
Upon written request by the Trustee, the Depositor shall deliver a copy
of the Underlying Agreement to the Trustee.
Section 2.02. Acceptance by Trustee. The Trustee hereby confirms that it
has confirmation from State Street Bank and Trust Company, as Securities
Intermediary for the Trustee that (i) the Deposited Underlying Certificate in
book-entry form has been confirmed by the Depository to have been delivered to
the Trustee, subject to no other interests, and held in the Securities
Intermediary in book-entry form, as a participant in the Depository and (ii)
the Securities Intermediary is holding such Deposited Underlying Certificate
in book-entry form for the account of the Trustee, as owner of the Deposited
Underlying Certificate as trustee for the Certificateholders. The Trustee
declares that it shall hold ownership interest in the Deposited Underlying
Certificate in trust and shall hold all proceeds of any of the foregoing and
all other rights, titles or interests of the Trustee in any asset included in
the Trust Fund from time to time in trust, upon the terms herein set forth,
for the use and benefit of all present and future Certificateholders. The
Trustee agrees, for the benefit of Certificateholders, to confirm that the
class designation and original principal balance with respect to the Deposited
Underlying Certificate conform to the information set forth on Schedule I on
the Closing Date.
Section 2.03. Representations and Warranties of the Underlying
Certificate Seller. The Underlying Certificate Seller hereby represents and
warrants to the Depositor and the Trustee
(a) With respect to the Deposited Underlying Certificate as of the
Closing Date as follows:
(i) immediately prior to the transfer of the Deposited Underlying
Certificate to the Depositor, the Underlying Certificate Seller was the
sole owner of the Deposited Underlying Certificate free and clear of any
lien, pledge, charge or encumbrance of any kind; and
(ii) the Underlying Certificate Seller has not assigned any interest
in the Deposited Underlying Certificate or any distributions thereon,
except as contemplated herein.
The representations and warranties set forth in this Section 2.03(a)
shall survive the transfer and assignment of the Deposited Underlying
Certificate by the Depositor to the Trustee. Upon discovery by the Underlying
Certificate Seller, the Depositor or a Responsible Officer of the Trustee of a
breach of any of the foregoing representations and warranties which materially
and adversely affects the interests of the Certificateholders in the Deposited
Underlying Certificate, the Underlying Certificate Seller, the Depositor or
the Trustee shall give prompt written notice to the other parties and to the
Certificateholders. The Underlying Certificate Seller shall cure such breach
in all material respects or, if such breach cannot be cured within 90 days
after notice to or discovery by the Underlying Certificate Seller, the
Underlying Certificate Seller shall repurchase the Deposited Underlying
Certificate from the Trustee on the Distribution Date immediately following
the date on which the Underlying Certificate Seller is so directed by Holders
of a Majority in Interest of the Regular Certificates. Any such repurchase of
the Deposited Underlying Certificate by the Underlying Certificate Seller
shall be accomplished on the Distribution Date of repurchase, by the payment
on the Business Day prior to such Distribution Date by the Underlying
Certificate Seller to the Trustee of an amount (in immediately available
funds) (the "Purchase Price") equal to the principal balance of the Deposited
Underlying Certificate immediately prior to the Distribution Date of such
repurchase plus unpaid interest thereon due on or prior to the Distribution
Date of such repurchase (it being understood that all distributions made on
the Deposited Underlying Certificate up to immediately prior to the
Distribution Date of such repurchase shall be property of the Trust Fund). The
payment of the Purchase Price shall be considered a prepayment in full of the
Deposited Underlying Certificate and shall be delivered to the Trustee for
deposit in the Distribution Account in accordance with the provisions of
Section 3.02 hereof. Upon such deposit into such Distribution Account, the
repurchased Deposited Underlying Certificate shall be released to the
Underlying Certificate Seller, and the Trustee and the Depositor shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as shall be reasonably requested and provided by the Underlying
Certificate Seller to vest in the Underlying Certificate Seller, or its
designee or assignee, title to the Deposited Underlying Certificate
repurchased pursuant hereto. The obligation of the Underlying Certificate
Seller to cure such breach of representations and warranties or effect such
repurchase of the Deposited Underlying Certificate shall constitute the sole
remedy respecting such breach available to Certificateholders or the Trustee
on behalf of Certificateholders.
(b) With respect to the Underlying Certificate Seller:
(i) The Underlying Certificate Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of California with full power and authority to execute, deliver and
perform this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Underlying Certificate Seller and constitutes the legal, valid and
binding agreement of the Underlying Certificate Seller, enforceable in
accordance with its terms, except as enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally or by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(iii) Neither the execution nor the delivery of this Agreement nor
the issuance, delivery and sale of the Certificates, nor the consummation
of any other of the transactions contemplated herein nor the fulfillment
of the terms of this Agreement or the Certificates will result in the
breach of any term or provision of the charter, by-laws or resolutions of
the Underlying Certificate Seller or conflict with, result in a breach,
violation or acceleration of or constitute a default under, the terms of
any material indenture or other agreement or instrument to which the
Underlying Certificate Seller is a party or by which it is bound, or any
statute, order or regulation applicable to the Underlying Certificate
Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Underlying Certificate
Seller.
(iv) There are no actions or proceedings against, or investigations
of, the Underlying Certificate Seller pending, or, to the knowledge of
the Underlying Certificate Seller, threatened, before any court,
administrative agency or other tribunal (A) asserting the invalidity of
this Agreement or the Certificates, (B) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, or (C) which might materially and
adversely affect the validity or enforceability of this Agreement or the
Certificates.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(b) shall survive delivery of the Trust Fund to the
Trustee. Upon discovery by the Underlying Certificate Seller, the Depositor or
a Responsible Officer of the Trustee of a breach of any of the foregoing
representations and warranties which breach materially and adversely affects
the interests of the Certificateholders, the party discovering such breach
shall give prompt written notice to the other parties and to the Rating
Agencies.
Section 2.04. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee as of the Closing Date
as follows:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with full
power and authority to execute, deliver and perform this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes the legal, valid and binding agreement
of the Depositor, enforceable in accordance with its terms, except as
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally or by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(iii) Neither the execution nor the delivery of this Agreement nor
the issuance, delivery and sale of the Certificates, nor the consummation
of any other of the transactions contemplated herein nor the fulfillment
of the terms of this Agreement or the Certificates will result in the
breach of any term or provision of the charter or by-laws of the
Depositor or conflict with, result in a breach, violation or acceleration
of or constitute a default under, the terms of any material indenture or
other agreement or instrument to which the Depositor is a party or by
which it is bound, or any statute, order or regulation applicable to the
Depositor of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor.
(iv) There are no actions or proceedings against, or investigations
of, the Depositor pending, or, to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal (A)
asserting the invalidity of this Agreement or the Certificates, (B)
seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement, or (C) which
might materially and adversely affect the validity or enforceability of
this Agreement or the Certificates.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Trust Fund to the
Trustee. Upon discovery by the Depositor or a Responsible Officer of the
Trustee of a breach of any of the foregoing representations and warranties
which breach materially and adversely affects the interests of the
Certificateholders, the party discovering such breach shall give prompt
written notice to the other party and to the Rating Agencies.
Section 2.05. Issuance of Certificates. The Trustee acknowledges the
receipt by it of the Deposited Underlying Certificate and concurrently with
such receipt, the Trustee has duly executed, countersigned and delivered, to
or upon the order of the Depositor, the Certificates in authorized
denominations and registered in such names as the Depositor has directed in
writing.
Section 2.06. Miscellaneous REMIC Provisions. (a) The Class A-1, Class
A-2, Class A-3, Class A-4 and Class A-5 Certificates are hereby designated as
"regular interests," and the Class A-R Certificate are hereby designated as
the single class of "residual interests," in the REMIC for purposes of
Sections 860G(a)(1) and 860G(a)(2) of the Code. The "latest possible maturity
date" of each class of REMIC regular interests will be January 25, 2031.
(b) The Closing Date will be the "Start-up Day" of the REMIC hereunder
within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class A-R Certificate is hereby designated as the
"tax matters person" of the REMIC hereunder within the meaning of Section
6231(a)(7) of the Code. The Trustee is hereby appointed to act as agent of the
Tax Matters Person and, in such capacity, the Trustee hereby agrees to perform
all obligations of the Tax Matters Person hereunder. The Trustee shall be the
agent of any designated Tax Matters Person pursuant to this Section 2.06(c),
regardless of whether such Tax Matters Person is the initial Holder of the
Class A-R Certificate or any subsequent Holder of the Class A-R Certificate.
ARTICLE III
ADMINISTRATION OF THE TRUST FUND;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Defaults by the Underlying Trust. In connection with its
receipt of any distribution on the Deposited Underlying Certificate on any
Distribution Date, if (i) the amount of any distribution varies from the
amount due thereon pursuant to the terms of the Underlying Agreement, (ii) the
Trustee shall not have received a distribution by the close of business on
such Distribution Date, or (iii) a Responsible Officer of the Trustee shall
gain actual knowledge of any default under the Underlying Agreement, the
Trustee shall promptly notify the Depositor, the Underlying Certificate Seller
and the Certificateholders, and shall, subject to the provisions of Article V
hereof, pursue such remedies as may be available to it as holder of the
Deposited Underlying Certificate in accordance with the terms of the
Underlying Agreement. To the extent that the Trustee shall not have received
any such distribution by the close of business on such Distribution Date, such
Delayed Underlying Distributions shall be distributed on the immediately
succeeding Distribution Date in the manner set forth in Section 3.04(f).
Section 3.02. Distribution Account. (a) The Trustee, for the benefit of
the Certificateholders, shall establish and maintain with itself an account
(the "Distribution Account"), which shall be an Eligible Account, entitled
"CWMBS, Inc. Resecuritization Mortgage Trust, Series 2000-7R". The Trustee
shall upon receipt deposit in the Distribution Account the following payments
and collections in respect of the Deposited Underlying Certificate:
(i) all distributions due and received on the Deposited Underlying
Certificate after October 25, 2000;
(ii) any amount required to be deposited in the Distribution Account
pursuant to Section 2.03(a) hereof in connection with the repurchase of
the Deposited Underlying Certificate by the Underlying Certificate
Seller; and
(iii) any amounts required to be deposited in the Distribution
Account pursuant to Section 7.01 in connection with the purchase by the
Depositor of the Deposited Underlying Certificate.
The foregoing requirements for deposit in the Distribution Account shall
be exclusive.
All amounts on deposit in the Distribution Account shall be retained in
the Distribution Account until withdrawn in accordance with Section 3.03, and
shall not be invested in any investments.
(b) Upon a determination by the Trustee that the final distribution shall
be made in respect of the Deposited Underlying Certificate, the Trustee shall
take such steps as may be necessary in connection with the final payment
thereon in accordance with the terms and conditions of the Underlying
Agreement. The Trustee shall promptly deposit in the Distribution Account the
final distribution received upon presentment and surrender of the Deposited
Underlying Certificate.
Section 3.03. Permitted Withdrawals From the Distribution Account. The
Trustee may from time to time withdraw funds from the Distribution Account for
the following purposes:
(a) to make payments to Certificateholders in the amounts and in the
manner provided in Section 3.04;
(b) to reimburse the Depositor for expenses incurred by and reimbursable
to the Depositor with respect to the REMIC hereunder pursuant to Section 6.03;
(c) to pay any taxes imposed upon the REMIC hereunder, as provided in
Section 5.12; and
(d) to clear and terminate the Distribution Account upon the termination
of the Trust Fund.
Section 3.04. Distributions.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Available Interest Funds for such Distribution Date
and apply such funds to distributions of interest on the Certificates, in the
following order of priority:
(i) to each Class of Certificates, an amount equal to the related
Class Optimal Interest Distribution Amount; provided, however, that prior
to and including the Accrual Termination Date, the amount otherwise
distributable as interest on the Class A-4 Certificates on such
Distribution Date shall be added to the Class Certificate Balance of the
Class A-4 Certificates; and
(ii) the amount remaining (if any) to the Class A-R Certificate, as
additional interest.
Prior to and including the Accrual Termination Date, the Accrual Amount shall
be distributed as principal on the Accretion Directed Certificates, in the
order of priority set forth in Section 3.04(c).
(b) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Available Principal Funds for such Distribution Date
and apply such funds to distributions in respect of principal on the
Certificates in the following order of priority:
(i) to the Class A-R Certificate until the Class Certificate Balance
thereof is reduced to zero;
(ii) concurrently, 29.72293668% to the Class A-1 Certificates,
23.93053079% to the Class A-2 Certificates, and 46.34653253% to the Class
A-5 Certificates until the Class Certificate Balance of the Class A-1
Certificates is reduced to zero;
(iii) concurrently, 53.65346747% to the Class A-2 Certificates, and
46.34653253% to the Class A-5 Certificates until the respective Class
Certificate Balances thereof are reduced to zero;
(iv) to the Class A-3 Certificates, until the Class Certificate
Balance thereof is reduced to zero;
(v) to the Class A-4 Certificates, until the Class Certificate
Balance thereof is reduced to zero; and
(vi) the amount remaining (if any) to the Class A-R Certificate, as
excess cash.
(c) On each Distribution Date prior to and including the Accrual
Termination Date, the Accrual Amount for such Distribution Date shall not
(except as provided in the second to last sentence in this paragraph) be
distributed as interest with respect to the Class A-4 Certificates but shall
instead be added to the Class Certificate Balance of the Class A-4
Certificates on the related Distribution Date. With respect to any
Distribution Date prior to and including the Accrual Termination Date, the
Accrual Amount shall be distributed in respect of principal on the Accretion
Directed Certificates in the following order of priority:
(i) concurrently, 29.72293668% to the Class A-1 Certificates,
23.93053079% to the Class A-2 Certificates, and 46.34653253% to the Class
A-5 Certificates until the Class Certificate Balance of the Class A-1
Certificates is reduced to zero;
(ii) concurrently, 53.65346747% to the Class A-2 Certificates, and
46.34653253% to the Class A-5 Certificates until the respective Class
Certificate Balances thereof are reduced to zero;
(iii) to the Class A-3 Certificates until the Class Certificate
Balance thereof is reduced to zero; and
(iv) to the Class A-4 Certificates until the Class Certificate
Balance thereof is reduced to zero.
(d) On each Distribution Date, the amount referred to in clause (i) of
the definition of Class Optimal Interest Distribution Amount for each Class of
Certificates for such Distribution Date shall be reduced by such Class's pro
rata share (based on interest then due and payable to such Class) of Allocated
Underlying Net Interest Shortfalls for such Distribution Date.
(e) Subject to Section 7.01 hereof respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such holder at a bank or other entity having appropriate facilities therefor,
if (i) such Holder has so notified the Trustee in writing at least five
Business Days prior to the related Record Date and (ii) such Holder shall hold
(A) 100% of the Class Certificate Balance of any Class of Certificates or (B)
Certificates of any Class with aggregate principal Denominations of not less
than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
(f) Notwithstanding anything to the contrary herein, if, on any
Distribution Date, the Trustee is not in receipt of distributions on the
Deposited Underlying Certificate for the related Underlying Distribution Date
(any such late distributions, "Delayed Underlying Distributions"), then such
Delayed Underlying Distributions shall be distributed on the immediately
succeeding Distribution Date to each Holder of a Certificate entitled thereto
(as of such original Distribution Date); provided, however, that no interest
shall accrue on such Delayed Underlying Distributions during the related
Delayed Underlying Distributions Deposit Period, and no such interest shall be
distributed to any Holder entitled to receive any Delayed Underlying
Distributions.
Section 3.05. Allocation of Realized Losses.
(a) On or prior to the beginning of the second Business Day prior to each
Distribution Date, the Trustee shall determine the total amount of Allocated
Underlying Realized Losses for such Distribution Date. The Trustee shall make
such determination on the basis of amounts reported to the Underlying Trustee
by the servicer of the Deposited Underlying Certificate in the related
Underlying Servicer's Certificate, or on the basis of the agreement referred
to in the last sentence of Section 5.07.
(b) Allocated Underlying Realized Losses with respect to any Distribution
Date shall be allocated to the Certificates, pro rata on the basis of their
respective Class Certificate Balances or, in the case of the Class A-4
Certificates, on the basis of the lesser of the Class Certificate Balance
thereof or the Initial Class Certificate Balance thereof, until the respective
Class Certificate Balance of each such Class is reduced to zero.
(c) Any Allocated Underlying Realized Loss allocated to a Class of
Certificates pursuant to Section 3.05(b) above shall be allocated among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(d) Any allocation of Allocated Underlying Realized Losses to a
Certificate, pursuant to Section 3.05(b) above shall be accomplished by
reducing the Certificate Balance thereof immediately following the
distributions made on the related Distribution Date in accordance with the
definition of "Certificate Balance".
Section 3.06. Statements to Certificateholders. Concurrently with each
distribution on a Distribution Date, the Trustee will forward by mail to the
Holder of each Certificate and each Rating Agency a statement generally
setting forth the following information:
(i) Available Interest Funds and Available Principal Funds for such
Distribution Date, and the amount (if any) by which Available Principal
Funds has been reduced on account of the payment of certain expenses,
liabilities and taxes described in the definition thereof;
(ii) with respect to such Distribution Date, the aggregate amount of
principal and interest, stated separately, distributed to Holders of each
Class of Certificates;
(iii) with respect to such Distribution Date, the amount of any
interest shortfall (including, without limitation, any net prepayment
interest shortfall allocated to the Deposited Underlying Certificate) for
each Class of Certificates, together with the amount of any unpaid
interest shortfall for such Class immediately following such Distribution
Date;
(iv) with respect to each Class of Certificates, the losses
allocated to such Class with respect to such Distribution Date;
(v) the Certificate Principal Balance of each Class of Certificates,
after giving effect to distributions of principal of such Certificates on
such Distribution Date; and
(vi) any additional amount distributed to the Holder of the Class
A-R Certificate on such Distribution Date.
In addition, the Trustee will furnish to Certificateholders copies of the
statements received by the Trustee as the holder of the Deposited Underlying
Certificate on behalf of the Trust Fund.
Within a reasonable period of time after the end of each calendar year,
the Trustee will prepare and deliver to each person who at any time during the
previous calendar year was a Certificateholder of record a statement
containing the information required to satisfy any requirements of the Code,
the REMIC Provisions and regulations thereunder as from time to time are in
force. For purposes of this Section 3.06, the Trustee's duties are limited to
the extent that adequate information is reasonably available to the Trustee as
described herein.
Section 3.07. Reports of the Trustee; Distribution Account. Upon written
request of a Certificateholder and at the expense of such Certificateholder,
the Trustee shall make available to Certificateholders within 15 days after
the date of receipt of such request a statement setting forth the status of
the Distribution Account as of the close of business on the last day of the
calendar month immediately preceding such request, and showing, for the period
covered by such statement, the aggregate of deposits into and withdrawals from
the Distribution Account.
Section 3.08. Access to Certain Documentation and Information. The
Trustee shall provide the Certificateholders with access to a copy of each
report, if any, received by it as holder of the Deposited Underlying
Certificate under the Underlying Agreement. The Trustee shall also provide the
Depositor and the Underlying Certificate Seller with reasonable access to any
such report and to all written reports, documents and records required to be
maintained by the Trustee in respect of its duties hereunder. Such access
shall be afforded without charge but only upon reasonable request evidenced by
written notice received by the Trustee two Business Days prior to the date of
such proposed access and during normal business hours at offices designated by
the Trustee. In the event that any Certificateholder, the Depositor or the
Underlying Certificateholder shall request a copy of any report, document or
record to which access shall be provided pursuant to this Section 3.08, the
Trustee shall be entitled to receive from such requesting party reimbursement
for the reasonable expense of copying such report, document or record.
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class other than the Class A-R Certificate 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 Trust Fund by an authorized officer of the Trustee. 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 countersignature 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 countersigned by the Trustee by
manual signature, and such countersignature upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been
duly executed and delivered hereunder. All Certificates shall be dated the
date of their countersignature. On the Closing Date, the Trustee shall
countersign the Certificates to be issued at the direction of the Depositor,
or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 4.02. Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 4.06 hereof, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c)
below and 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 and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of the same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. 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.
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.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) [Reserved].
(c) No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA or a plan
or arrangement subject to Section 4975 of the Code, nor a person acting on
behalf of any such plan or arrangement, nor using the assets of any such plan
or arrangement to effect such transfer, or (ii) if the purchaser is an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA, or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan or arrangement, or
using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee and addressed to the Trustee, which Opinion of Counsel shall
not be an expense of either the Trustee or the Trust Fund, to the effect that
the purchase or holding of such ERISA-Restricted Certificate will not result
in 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 to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. Notwithstanding anything
else to the contrary herein, any purported transfer of an ERISA-Restricted
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 4.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(d) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been furnished with
an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached hereto as Exhibit D.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
4.02(d) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Residual Certificate in violation of the provisions of this Section
4.02(d), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 4.02(c) and this
Section 4.02(d) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit and Transferor
Certificate. The Trustee shall be entitled but not obligated to recover
from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Residual Certificate to any
Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 4.02(d) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Underlying Certificate Seller or the Depositor, to the effect that the
elimination of such restrictions will not cause the REMIC hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is
not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(e) The preparation and delivery of all certificates and opinions
referred to above in this Section 4.02(e) in connection with transfer shall be
at the expense of the parties to such transfers.
(f) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and indirect participating
firms as representatives of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of holders under this
Agreement, and requests and directions for and votes of such representatives
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (vi) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants
with respect to indirect participating firms and persons shown on the books of
such indirect participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) the Depositor at its option
advises the Trustee in writing that it elects to terminate the book-entry
system through the Depository, the Trustee shall notify all Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of definitive, fully-registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to
the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository 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 the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue of
its assumption of such obligations become liable to any party for any act or
failure to act of the Depository.
Section 4.03. 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 Depositor 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, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new Certificate under this Section 4.03, 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 4.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
Section 4.04. Persons Deemed Owners.
The Depositor, the Trustee and any agent of the Depositor 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
Depositor, the Trustee nor any agent of the Depositor or the Trustee shall be
affected by any notice to the contrary.
Section 4.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor shall request such information in writing from the Trustee, then the
Trustee shall, within ten Business Days after the receipt of such request,
provide the Depositor or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 4.06. Maintenance of Office or Agency. The Trustee will maintain
or cause to be maintained at its expense an office or offices or agency or
agencies in New York City or the city in which the Corporate Trust Office of
the Trustee is located, where Certificates may be surrendered for registration
of transfer or exchange. The Trustee initially designates its Corporate Trust
Office for such purposes. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01. Duties of Trustee.
The Trustee shall undertake to perform such duties and only such duties
as are specifically set forth in this Agreement.
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 are
in the form required by this Agreement; provided, however, that the Trustee
shall not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and 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 believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be finally proven that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be 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 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.
Section 5.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 5.01:
(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 and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) the Trustee shall not be 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;
(iv) 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;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants, attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent, attorney or accountant
appointed with due care by it hereunder;
(vi) the Trustee shall not be required to risk or expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(vii) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement;
(viii) the Trustee shall be under no obligation to exercise any of the
trusts, rights 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 satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby;
(ix) whenever in the administration of this Agreement the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate; and
(x) the Trustee shall not be deemed to have notice of any breach by the
Underlying Certificate Seller of any representation, warranty or covenant or
any default or event of default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which is in
fact such a default or breach is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Certificates and
this Agreement.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of such 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 5.03. Trustee Not Liable for Certificates or Deposited Underlying
Certificate. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor or the Underlying Certificate Seller,
as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of the Deposited
Underlying Certificate or related document other than with respect to the
Trustee's execution and counter-signature of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Underlying Certificate Seller of any funds paid to the Depositor or the
Underlying Certificate Seller in respect of the Deposited Underlying
Certificate.
Section 5.04. 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 5.05. Trustee's Fees and Expenses. The Trustee shall receive as
compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between the Depositor and the Trustee. In
addition, the Underlying Certificate Seller shall reimburse the Trustee for
all reasonable expenses and liabilities of the Trustee incurred hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Trustee may employ in
connection with the exercise and performance of its rights and duties
hereunder. Notwithstanding the foregoing, the Trustee shall not be entitled to
reimbursement for any fees to a successor trustee or expenses arising from the
appointment of a successor trustee that the Trustee is required to pay
pursuant to Section 5.09.
Section 5.06. Indemnification of the Trustee. The Underlying Certificate
Seller hereby covenants and agrees to indemnify the Trustee and any director,
officer, employee, or agent of the Trustee for and to hold them harmless
against, any and all losses, liabilities, damages, claims or expenses arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder (including, without limitation, any losses, liabilities,
damages, claims or expenses arising from the failure of the Underlying
Certificate Seller to perform its obligations in accordance with the
provisions of this Agreement or of defending itself against any claim or
liability in connection with the exercise or performance of any powers or
duties hereunder), other than those resulting from the negligence or bad faith
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. Such
indemnification shall survive the termination of this Agreement and the Trust
Fund created hereby or the resignation or removal of the Trustee pursuant to
the terms hereof. Notwithstanding the foregoing, the Trustee shall not be
entitled to indemnification for any fees to a successor trustee or expenses
arising from the appointment of a successor trustee that the Trustee is
required to pay pursuant to Section 5.09.
Section 5.07. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to super-vision or examination by
federal or state authority and with a credit rating which would not cause
either of the Rating Agencies to reduce their respective then current ratings
of the Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction). 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 5.07 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 5.07, the Trustee shall resign immediately in the
manner and with the effect specified in Section 5.08 hereof. The entity
serving as Trustee may have normal banking and trust relationships with the
Depositor and its affiliates and with the Underlying Certificate Seller and
its affiliates; provided, however, that such entity cannot be an affiliate of
the Depositor or the Underlying Certificate Seller. The Trustee hereunder
shall at all times be the same Person as the Underlying Trustee or shall have
an agreement with the Underlying Trustee to have access to the information
relating to the Underlying Certificate Account in order to enable the Trustee
to perform its duties under Section 3.05(a).
Section 5.08. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Underlying Certificate Seller and each Rating Agency not less than 60 days
before the date specified in such notice when, subject to Section 5.09, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 5.09 meeting the qualifications set forth in Section
5.07. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice or resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.07 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 as 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 a
tax is imposed with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund is located and the imposition of such tax would be
avoided by the appointment of a different trustee, then the Depositor may
remove the Trustee and appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee,
one copy of which shall be delivered to the Depositor and one copy to the
successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor Trustee to the Depositor, one complete set to
the Trustee so removed and one complete set to the successor so appointed.
Notice of any removal of the Trustee shall be given to each Rating Agency and
the Underlying Certificate Seller.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 5.08 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 5.09 hereof.
Section 5.09. Successor Trustee.
Any successor trustee appointed as provided in Section 5.08 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Depositor 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 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
5.09 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 5.07 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 5.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Notwithstanding anything to the contrary herein, in the event of any
resignation or removal of the Trustee pursuant to Section 5.08 and the
appointment of a successor Trustee pursuant to this Section 5.09, the Trustee
so resigned or removed shall pay all reasonable fees of such successor trustee
(not to exceed the pro rated fees originally paid to the Trustee by the
Depositor) and shall pay all reasonable expenses of the Depositor or the Trust
Fund arising from the appointment of such successor trustee.
Section 5.10. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 5.07 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 5.11. 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 at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof,
whichever is applicable, and, subject to the other provisions of this Section
5.11, such powers, duties, obligations, rights and trusts as the Depositor and
the Trustee may consider necessary or desirable. If the Depositor shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, 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 5.07 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 5.09.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this Section
5.11, all rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (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 hereunder, 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 applicable 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;
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee; and
(iii) The Trustee 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 separate trustees and co-trustees, when and
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 V. 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 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 5.12. Tax Matters.
It is intended that the assets with respect to which the REMIC election
is to be made, as set forth in the Preliminary Statement, shall constitute,
and that the conduct of matters relating to such assets shall be such as to
qualify such assets as, a "real estate mortgage investment conduit" as defined
in and in accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of such REMIC and
that in such capacity it shall: (a) prepare and file, or cause to be prepared
and filed, in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file or cause to be prepared and filed with
the Internal Revenue Service and with the appropriate authorities under
Applicable State and Local Tax Law income tax or information returns for each
taxable year with respect to such REMIC, containing such information and at
the times and in the manner as may be required by the Code or under Applicable
State and Local Tax Law and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby; (b) within thirty days of the
Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c) make
or cause to be made elections that such assets be treated as a REMIC on the
federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and when required to be provided to them in accordance with the REMIC
Provisions, including without limitation, the calculation of any original
issue discount using the applicable prepayment assumption; (e) provide
information necessary for the computation of tax imposed on the transfer of a
Residual Certificate to a Person that is not a Permitted Transferee, or an
agent (including a broker, nominee or other middleman) of a Non-Permitted
Transferee, or a pass-through entity in which a Non-Permitted Transferee is
the record holder of an interest (the reasonable cost of computing and
furnishing such information may be charged to the Person liable for such tax);
(f) to the extent that they are under its control conduct matters relating to
such assets at all times that any Certificates are outstanding so as to
maintain the status as a REMIC under the REMIC Provisions; (g) not knowingly
or intentionally take any action or omit to take any action that would cause
the termination of the REMIC status; (h) pay, from the sources specified in
the last paragraph of this Section 5.12, the amount of any federal or state
tax, including prohibited transaction taxes as described below, imposed on
such REMIC prior to its termination when and as the same shall be due and
payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Trustee from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings); (i) ensure that
federal, state or local income tax or information returns shall be signed by
the Trustee or such other person as may be required to sign such returns by
the Code or state or local laws, regulations or rules; (j) maintain records
relating to such REMIC, including but not limited to the income, expenses,
assets and liabilities thereof and the fair market value and adjusted basis of
the assets determined at such intervals as may be required by the Code, as may
be necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, represent such
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of such REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of such REMIC, and otherwise act on
behalf of such REMIC in relation to any tax matter or controversy involving
it.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor and the Underlying Certificate Seller shall provide, or cause to
be provided, to the Trustee within ten (10) days after the Closing Date all
information or data that the Trustee requests in writing and determines to be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flows of the Certificates and the Deposited
Underlying Certificate. Thereafter, the Depositor and the Underlying
Certificate Seller shall provide to the Trustee promptly upon written request
therefor, any such additional information or data that the Trustee may, from
time to time, reasonably request in order to enable the Trustee to perform its
duties as set forth herein. The Underlying Certificate Seller hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor or the Underlying
Certificate Seller to provide, or to cause to be provided, accurate
information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of the
REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c)
of the Code, on any contribution to such REMIC after the Startup Day pursuant
to Section 860G(d) of the Code, or any other tax is imposed, including,
without limitation, any minimum tax imposed upon the REMIC hereunder pursuant
to Sections 23153 and 24874 of the California Revenue and Taxation Code, if
not paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from the negligence,
bad faith or reckless disregard by the Trustee in breach of any of its
obligations under this Agreement, (ii) the Depositor, in the case of any such
minimum tax, or if such tax arises out of or results from a breach by the
Depositor of any of its obligations under this Agreement, (iii) the Underlying
Certificate Seller, if any such tax arises out of or results from the
Underlying Certificate Seller's obligation to repurchase the Deposited
Underlying Certificate pursuant to Section 2.03 or (iv) in all other cases, or
in the event that the Trustee, the Depositor or the Underlying Certificate
Seller fails to honor its obligations under the preceding clauses (i),(ii) or
(iii), any such tax will be paid with amounts otherwise to be distributed to
the Certificateholders, as provided in Section 3.03.
Section 5.13. Periodic Filings. Pursuant to written instructions from the
Depositor, the Trustee shall prepare, execute and file all periodic reports
required under the Securities Exchange Act of 1934 in conformity with the
terms of the relief granted to the Depositor in CWMBS, Inc. (February 3,
1994), a copy of which has been supplied to the Trustee by the Depositor. In
connection with the preparation and filing of such periodic reports, the
Depositor shall timely provide to the Trustee all material information
available to them which is required to be included in such reports and not
known to them to be in the possession of the Trustee and such other
information as the Trustee reasonably may request from either of them and
otherwise reasonably shall cooperate with the Trustee. The Trustee shall have
no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Trustee's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct. No later than January 30, 2001, the Trustee shall file a
Form 15 Notice of Suspension of Duty to File Reports pursuant to Sections 13
and 15(d) of the Securities Exchange Act of 1934, with respect to the
Certificates, provided that such filing at such time shall be permissible
under such Sections 13 and 15(d). The Trustee shall have no responsibility to
file any items other than those specified in this Section 5.13.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the Depositor. The Depositor shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed upon and undertaken by the Depositor herein.
Section 6.02. Merger, Consolidation or Conversion of the Depositor. The
Depositor will keep in full effect its existence, rights and franchises as a
corporation under the laws of the United States or under the laws of one of
the states thereof 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 to perform its duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated, or any
Person resulting from any merger or consolidation to which the Depositor shall
be a party, or any person succeeding to the business of the Depositor, shall
be the successor of the Depositor hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 6.03. Limitation on Liability of the Depositor and Others. None
of the Depositor, or any of the directors, officers, employees or agents of
the Depositor shall be under any liability to the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor 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 and any director, officer, employee or
agent of the Depositor 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 and any director, officer, employee
or agent of the Depositor shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with
any audit, controversy or judicial proceeding relating to a governmental
taxing authority or any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or gross negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor, shall be under no obligation to appear in, prosecute
or defend any legal action that is not incidental to its respective duties
hereunder and which in its opinion may involve it in any expense or liability;
provided, however, that the Depositor 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. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Depositor shall be entitled
to be reimbursed therefor out of the Distribution Account.
ARTICLE VII
TERMINATION
Section 7.01. Termination upon Liquidation or Purchase of Deposited
Underlying Certificate.
Subject to Section 7.03, the obligations and responsibilities of the
Depositor, the Underlying Certificate Seller and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (a) the
purchase by the Depositor of the Deposited Underlying Certificate at the price
equal to the Certificate Balances of all Certificates on the Distribution Date
of such purchase, plus any unpaid accrued interest thereon at the applicable
Pass-Through Rate or (b) the later of (i) a termination of the Underlying
Trust pursuant to Article IX of the Underlying Agreement, (ii) the receipt of
the final distribution to be made on the Deposited Underlying Certificate in
accordance with the terms and conditions of the Underlying Agreement and (iii)
the distribution to Certificateholders of all amounts required to be
distributed pursuant to this Agreement. In no event shall the trusts created
hereby continue beyond the earlier of (i) the expiration of 21 years from the
death of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date. The right to purchase
the Deposited Underlying Certificate pursuant to clause (a) above shall be
conditioned upon the Certificate Balances of all Certificates, at the time of
such repurchase, aggregating less than ten percent of the Certificate Balance
of all Certificates on the Closing Date.
Section 7.02. Final Distribution on the Certificates.
If (a) the Depositor elects to terminate the Trust Fund pursuant to
clause (a) of Section 7.01, at least 20 days prior to the date notice is to be
mailed to the affected Certificateholders, the Depositor shall notify the
Trustee of the date such Certificateholder intends to terminate the Trust Fund
and of the applicable repurchase price of the Deposited Underlying Certificate
or (b) the Trustee receives notice that the Underlying Trust is to be
terminated in accordance with the terms of the Underlying Agreement, notice
shall be given by the Trustee to Certificateholders as promptly as practicable
thereafter.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed (x), in the case of a
termination specified in clause (a) of the preceding paragraph, not earlier
than the 15th day and no later than the 10th day of the month next preceding
the month of such final distribution or (y), in the case of a termination
specified in clause (b) of the preceding paragraph, not earlier than the 15th
day of the month next preceding the month of such final distribution and not
later than as promptly practicable after the Trustee receives notice that the
Underlying Trust is to be terminated in accordance with the terms of the
Underlying Agreement. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will also give such
notice to each Rating Agency at the time such notice is given to
Certificateholders.
If the Depositor elects to terminate the Trust Fund pursuant to clause
(a) of Section 7.01, then, upon the final distribution with respect to the
Trust Fund, the Trustee shall promptly release to the Depositor the Deposited
Underlying Certificate.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in the order
set forth in Section 3.04. hereof, on the final Distribution Date, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates, the Certificate Balance thereof plus accrued interest
thereon in the case of an interest bearing Certificate and (ii) as to the
Residual Certificates, the amount, if any, which remains on deposit in the
Distribution Account (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In the event that any affected 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 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 applicable 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 a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for
cancellation, the Holder of the Class A-R Certificate shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
Section 7.03. Additional Termination Requirements.
(a) In the event the Depositor exercises its purchase option as provided
in Section 7.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel, at the expense of the Depositor, to the effect that the
failure to comply with the requirements of this Section 7.03 will not (i)
result in the imposition of taxes on "prohibited transactions" on the REMIC
hereunder as defined in section 860F of the Code, or (ii) cause the REMIC
hereunder to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(1) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Depositor under Section 7.02, the
Trustee shall prepare, at the expense of the "tax matters person," and
adopt a plan of complete liquidation within the meaning of section
860F(a)(4) of the Code which, as evidenced by an Opinion of Counsel
(which opinion shall not be an expense of the Trustee or the Tax Matters
Person), meets the requirements of a qualified liquidation; and
(2) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of the
Trust Fund to the Depositor for cash in accordance with Section 7.01.
(b) The Trustee as agent for the REMIC hereunder hereby agrees to adopt
and sign such a plan of complete liquidation upon the written request of the
Depositor, and the receipt of the Opinion of Counsel referred to in Section
7.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Depositor.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Depositor to prepare and the Trustee to adopt and sign a plan of
complete liquidation.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment. This Agreement may be amended from time to time
by the Depositor and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of
the Depositor, (iv) to add any other provisions with respect to matters or
questions arising hereunder or (v) to modify, alter, amend, add to or rescind
any of the terms or provisions contained in this Agreement; provided that any
action pursuant to clauses (iv) or (v) above shall not, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided, however, that the amendment
shall not be deemed to adversely affect in any material respect the interests
of the Certificateholders if the Person requesting the amendment obtains a
letter from each Rating Agency stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates, it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee and the Depositor also may at any time
and from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or helpful to (i) maintain the qualification
of the REMIC hereunder as a REMIC under the Code, (ii) avoid or minimize the
risk of the imposition of any tax on the REMIC hereunder pursuant to the Code
that would be a claim at any time prior to the final redemption of the
Certificates or (iii) comply with any other requirements of the Code, provided
that the Trustee has been provided an Opinion of Counsel, which opinion shall
be an expense of the party requesting such opinion but in any case shall not
be an expense of the Trustee or the Trust Fund, to the effect that such action
is necessary or helpful to, as applicable, (i) maintain such qualification,
(ii) avoid or minimize the risk of the imposition of such a tax or (iii)
comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the Depositor and
the Trustee with the consent of the Holders of a Majority in Interest of each
Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in
any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner other than as described
in (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating 66% or (iii)
reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of all such Certificates then outstanding.
Any amendment made pursuant to either of the preceding two paragraphs
that materially and adversely affects the rights of the Underlying Certificate
Seller shall not be made without the prior written consent of the Underlying
Certificate Seller.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on the REMIC hereunder or the
Certificateholders or cause the REMIC hereunder to fail to qualify as a REMIC
at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
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.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund) satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material
respect the interests of any Certificateholder or (B) the conclusion set forth
in the immediately preceding clause (A) is not required to be reached pursuant
to this Section 8.01.
Section 8.02. Action Under and Conflicts With the Underlying Agreement.
Subject to the terms hereof, in the event that there shall be any matters
arising under the Underlying Agreement which require the vote or direction of
the holders of the Deposited Underlying Certificate, the Trustee, as holder of
the Deposited Underlying Certificate, shall vote the Deposited Underlying
Certificate in accordance with instructions received from Holders of a
Majority in Interest of each Class of Certificates. In the absence of receipt
by the Trustee of consistent instructions from the holders of a Majority in
Interest of each Class of Certificates, the Trustee shall not vote; provided,
however, that, notwithstanding the absence of such instructions, in the event
a required distribution pursuant to the Underlying Agreement shall not have
been made, the Trustee shall, subject to the provisions of Article V hereof,
pursue such remedies as may be available to it as holder of the Deposited
Underlying Certificate in accordance with the terms of the Underlying
Agreement.
Section 8.03. Recordation of Agreement. This Agreement (or an abstract
hereof, if acceptable by the applicable recording office) is subject to
recordation in all appropriate public offices, such recordation to be effected
by the Depositor at its expense if such recordation beneficially affects the
interests of the Certificateholders.
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 8.04. Certain REMIC Matters. The Depositor, upon request, shall
promptly furnish the Trustee with all such information as may be reasonably
required in connection with the Trustee's preparation of all Tax Returns of
the REMIC hereunder or to enable the Trustee to respond to reasonable requests
for information made by related Certificateholders in connection with tax
matters.
Section 8.05. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, 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
created hereby, 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 there shall have been a failure to pay amounts due under
this Agreement to the Certificateholders and the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates shall also have made written request to 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 8.05, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 8.06. 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 8.07. Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The resignation or termination of the Trustee and the appointment of
any successor;
3. The repurchase of the Deposited Underlying Certificate pursuant to
Section 2.03;
4. The final payment to Certificateholders; and
5. Any rating action involving the Deposited Underlying Certificate,
which notice shall be made by first-class mail within two Business
Days after the Trustee gains actual knowledge thereof.
In addition, the Trustee shall promptly furnish to each Rating Agency and
the Underlying Certificate Seller copies of each report to Certificateholders
described in Section 3.06.
(b) All demands, notices and directions hereunder shall be in writing and
shall be deemed effective when delivered to: (i) in the case of the Depositor,
CWMBS, Inc., 4500 Park Granada, Calabasas, California 91302, Attention:
Structured Finance, and a copy to CWMBS, Inc., 4500 Park Granada, Calabasas,
California 91302, Attention: General Counsel, (ii) in the case of the
Underlying Certificate Seller, Countrywide Securities Corporation, 4500 Park
Granada, Calabasas, California 91302, Attention: General Counsel, and (iii) in
the case of the Trustee, State Street Bank and Trust Company, 2 Avenue de
Lafayette, 6th Floor, Boston, Massachusetts 02111, Attention: Global Investor
Services Group--Corporate Trust, Ref. CWMBS, Inc. Resecuritization Mortgage
Trust 2000-7R, or such other address as may hereafter be furnished by any
party to the others. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register; any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice.
Section 8.08. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 8.09. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors
and assigns of the parties hereto, and all such provisions shall inure to the
benefit of the Certificateholders.
Section 8.10. Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 8.11. 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.
Section 8.12. Protection of Assets. (a) Except for transactions and
activities entered into in connection with the securitization that is the
subject of this Trust Agreement, the Trust Fund created by this Trust
Agreement is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell assets;
(3) engage in any business or activities.
(b) Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
* * *
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Underlying Certificate Seller and
the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
CWMBS, INC.,
as Depositor
By:
-------------------------------
Name:
Title:
COUNTRYWIDE SECURITIES CORPORATION,
as Underlying Certificate Seller
By:
-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
not in its individual
capacity, but solely as
Trustee
By:
--------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
THE DEPOSITED UNDERLYING CERTIFICATE AND THE UNDERLYING AGREEMENT
<TABLE>
<CAPTION>
PRINCIPAL BALANCE AS
DEPOSITED UNDERLYING CERTIFICATE OF OCTOBER 25, 2000(1) UNDERLYING AGREEMENT
-------------------------------- ---------------------- --------------------
<S> <C> <C>
GE Capital Mortgage Services, Inc. REMIC Pooling and Servicing Agreement, dated as
Multi-Class Pass-Through Certificates, Series $251,676,653.92 (2) of January 1, 1999 between GE Capital
1999-1 Mortgage Services, Inc. and State Street
Bank and Trust Company
Class A2
</TABLE>
----------
(1) After giving effect to distributions made on such date.
(2) This amount represents approximately 53.21% of the aggregate principal
balance of all GE Capital Mortgage Services, Inc. Class A2 REMIC Multi-Class
Pass-Through Certificates, Series 1999-1.
<PAGE>
B&W DRAFT 10/27/00
EXHIBIT A-1
FORM OF CLASS A-1 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 INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No.: 1
Cut-off Date: October 25, 2000, after giving effect
to distributions made on such
Distribution Date for the Underlying
Trust
First Distribution Date: November 27, 2000
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $50,000,000
Closing Date Principal
Balances evidenced
by all Class A-1
Certificates: $50,000,000
CUSIP: 12669B WW 8
Interest Rate: 6.50%
Maturity Date: January 25, 2031
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R,
Class A-1
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificate, such Trust Fund formed and
the Deposited Underlying Certificate deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE DEPOSITED UNDERLYING CERTIFICATE IS GUARANTEED OR INSURED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Class A-1 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-1 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificate and deposited by CWMBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Trust Agreement
dated as of October 30, 2000 (the "Trust Agreement") among the Depositor, the
Underlying Certificate Seller and State Street Bank and Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution of
interest received on the Deposited Underlying Certificate will be made on the
25th day of each calendar month, or, if such day is not a Business Day, the
next succeeding Business Day (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to Holders of Class
A-1 Certificates on such Distribution Date pursuant to Section 3.04 of the
Trust Agreement. The Record Date applicable to the first Distribution Date is
the Closing Date and as to each succeeding Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions to any Certificateholder on any Distribution Date shall
be made either (x) by wire transfer in immediately available funds to the
account of such holder at a bank or other entity having appropriate facilities
therefor, if (i) such Holder has so notified the Trustee in writing at least
five Business Days prior to the related Record Date and (ii) such Holder shall
hold (A) 100% of the Class Certificate Balance of any Class of Certificates or
(B) Certificates of any Class with aggregate principal Denominations of not
less than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Except as otherwise provided in the Trust Agreement, the final
distribution on this Certificate will be made in the applicable manner
described above, but only upon presentment and surrender of this Certificate
at the Corporate Trust Office or such other location specified in the notice
to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
* * * * *
<PAGE>
This Class A-1 Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned
by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: October 30, 2000
STATE STREET BANK AND TRUST
COMPANY,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By_________________________
Authorized Officer of
STATE STREET BANK AND
TRUST COMPANY,
not in its individual
capacity but solely
as Trustee
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust, Series 2000-7R
issued in six Classes (Class A-1, Class A-2, Class A-3, Class A-4, Class A-5
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificate, (ii) the distributions thereon after October 25, 2000, and (iii)
the Distribution Account and such assets that are deposited therein from time
to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the Deposited Underlying Certificate, all as more
specifically set forth in the Trust Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds
on deposit in the Distribution Account for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Trust Agreement or, except as expressly provided in
the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the Transfer hereof or in
exchange Hereford or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Boston, Massachusetts (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Trust Agreement. As provided in the
Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust Fund created thereby shall terminate as provided in Article VII
of the Trust Agreement.
<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 of
assignee) the Percentage Interest evidenced by the within Pass-Through
Certificate and hereby authorizes the transfer of registration of such Interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
-----------------------------------------------------------------------------
--------------------------------------------------------------------,--------
for the account of _____,____________________________________________________
account number _______________, or, if mailed by check, to _________.________
Applicable statements should be mailed to ___________________________________
_________.
This information is provided by ____________________________________,
the assignee named above, or ________________________________________________,
as its agent.
<PAGE>
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary
public in and for said State, personally appeared ______________ __________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
__________________________________
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-2 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 INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No.: 1
Cut-off Date: October 25, 2000, after giving effect to
distributions made on such Distribution
Date for the Underlying Trust
First Distribution Date: November 27, 2000
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $50,500,000
Closing Date Principal
Balances evidenced
by all Class A-2
Certificates: $50,500,000
CUSIP: 12669B WX 6
Interest Rate: 6.50%
Maturity Date: January 25, 2031
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R,
Class A-2
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificate, such Trust Fund formed and
the Deposited Underlying Certificate deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE DEPOSITED UNDERLYING CERTIFICATE IS GUARANTEED OR INSURED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Class A-2 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-2 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificate and deposited by CWMBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Trust Agreement
dated as of October 30, 2000 (the "Trust Agreement") among the Depositor, the
Underlying Certificate Seller and State Street Bank and Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution of
interest received on the Deposited Underlying Certificate will be made on the
25th day of each calendar month, or, if such day is not a Business Day, the
next succeeding Business Day (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to Holders of Class
A-2 Certificates on such Distribution Date pursuant to Section 3.04 of the
Trust Agreement. The Record Date applicable to the first Distribution Date is
the Closing Date and as to each succeeding Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions to any Certificateholder on any Distribution Date shall
be made either (x) by wire transfer in immediately available funds to the
account of such holder at a bank or other entity having appropriate facilities
therefor, if (i) such Holder has so notified the Trustee in writing at least
five Business Days prior to the related Record Date and (ii) such Holder shall
hold (A) 100% of the Class Certificate Balance of any Class of Certificates or
(B) Certificates of any Class with aggregate principal Denominations of not
less than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Except as otherwise provided in the Trust Agreement, the final
distribution on this Certificate will be made in the applicable manner
described above, but only upon presentment and surrender of this Certificate
at the Corporate Trust Office or such other location specified in the notice
to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
* * * * *
<PAGE>
This Class A-2 Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned
by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: October 30, 2000
STATE STREET BANK AND TRUST
COMPANY,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By___________________________
Authorized Officer of
STATE STREET BANK AND
TRUST COMPANY,
not in its individual
capacity but solely
as Trustee
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust, Series 2000-7R
issued in six Classes (Class A-1, Class A-2, Class A-3, Class A-4, Class A-5
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificate, (ii) the distributions thereon after October 25, 2000, and (iii)
the Distribution Account and such assets that are deposited therein from time
to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the Deposited Underlying Certificate, all as more
specifically set forth in the Trust Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds
on deposit in the Distribution Account for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Trust Agreement or, except as expressly provided in
the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the Transfer hereof or in
exchange Hereford or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Boston, Massachusetts (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Trust Agreement. As provided in the
Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust Fund created thereby shall terminate as provided in Article VII
of the Trust Agreement.
<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 of
assignee) the Percentage Interest evidenced by the within Pass-Through
Certificate and hereby authorizes the transfer of registration of such
Interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
-----------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
----------------------------------------------------------------------------
----------------------------------------------------------------------------
for the account of _____, __________________________________________________
account number _______________, or, if mailed by check, to _____._____________
Applicable statements should be mailed to ____________________________________
____________.
This information is provided by __________________________________,
the assignee named above, or ______________________________________________,
as its agent.
<PAGE>
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary
public in and for said State, personally appeared ______________ __________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
___________________________
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-3 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 INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No.: 1
Cut-off Date: October 25, 2000, after giving effect
to distributions made on such
Distribution Date for the Underlying
Trust
First Distribution Date: November 27, 2000
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $42,476,000
Closing Date Principal
Balances evidenced
by all Class A-3
Certificates: $42,476,000
CUSIP: 12669B WY 4
Interest Rate: 6.50%
Maturity Date: January 25, 2031
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R,
Class A-3
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificate, such Trust Fund formed and
the Deposited Underlying Certificate deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE DEPOSITED UNDERLYING CERTIFICATE IS GUARANTEED OR INSURED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Class A-3 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-3 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificate and deposited by CWMBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Trust Agreement
dated as of October 30, 2000 (the "Trust Agreement") among the Depositor, the
Underlying Certificate Seller and State Street Bank and Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution of
interest received on the Deposited Underlying Certificate will be made on the
25th day of each calendar month, or, if such day is not a Business Day, the
next succeeding Business Day (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to Holders of Class
A-3 Certificates on such Distribution Date pursuant to Section 3.04 of the
Trust Agreement. The Record Date applicable to the first Distribution Date is
the Closing Date and as to each succeeding Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions to any Certificateholder on any Distribution Date shall
be made either (x) by wire transfer in immediately available funds to the
account of such holder at a bank or other entity having appropriate facilities
therefor, if (i) such Holder has so notified the Trustee in writing at least
five Business Days prior to the related Record Date and (ii) such Holder shall
hold (A) 100% of the Class Certificate Balance of any Class of Certificates or
(B) Certificates of any Class with aggregate principal Denominations of not
less than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Except as otherwise provided in the Trust Agreement, the final
distribution on this Certificate will be made in the applicable manner
described above, but only upon presentment and surrender of this Certificate
at the Corporate Trust Office or such other location specified in the notice
to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
* * * * *
<PAGE>
This Class A-3 Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned
by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: October 30, 2000
STATE STREET BANK AND TRUST
COMPANY,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By ___________________________
Authorized Officer of
STATE STREET BANK AND
TRUST COMPANY,
not in its individual
capacity but solely
as Trustee
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust, Series 2000-7R
issued in six Classes (Class A-1, Class A-2, Class A-3, Class A-4, Class A-5
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificate, (ii) the distributions thereon after October 25, 2000, and (iii)
the Distribution Account and such assets that are deposited therein from time
to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the Deposited Underlying Certificate, all as more
specifically set forth in the Trust Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds
on deposit in the Distribution Account for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Trust Agreement or, except as expressly provided in
the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the Transfer hereof or in
exchange Hereford or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Boston, Massachusetts (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Trust Agreement. As provided in the
Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust Fund created thereby shall terminate as provided in Article VII
of the Trust Agreement.
<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 of
assignee) the Percentage Interest evidenced by the within Pass-Through
Certificate and hereby authorizes the transfer of registration of such
Interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
----------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
____________________________________________________________________________
________________________________________________________________,___________
for the account of ______,__________________________________________________
account number _______________, or, if mailed by check, to ____.____________
Applicable statements should be mailed to __________________________________
_____________.
This information is provided by ___________________________________,
the assignee named above, or _______________________________________________,
as its agent.
<PAGE>
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary
public in and for said State, personally appeared ______________ __________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
_______________________________________
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-4 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 INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No.: 1
Cut-off Date: October 25, 2000, after giving effect to
distributions made on such Distribution
Date for the Underlying Trust
First Distribution Date: November 27, 2000
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $21,887,655.20
Closing Date Principal
Balances evidenced
by all Class A-4
Certificates: $21,887,655.20
CUSIP: 12669B WZ 1
Interest Rate: 6.50%
Maturity Date: January 25, 2031
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R,
Class A-4
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificate, such Trust Fund formed and
the Deposited Underlying Certificate deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE DEPOSITED UNDERLYING CERTIFICATE IS GUARANTEED OR INSURED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Class A-4 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-4 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificate and deposited by CWMBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Trust Agreement
dated as of October 30, 2000 (the "Trust Agreement") among the Depositor, the
Underlying Certificate Seller and State Street Bank and Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution of
interest received on the Deposited Underlying Certificate will be made on the
25th day of each calendar month, or, if such day is not a Business Day, the
next succeeding Business Day (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to Holders of Class
A-4 Certificates on such Distribution Date pursuant to Section 3.04 of the
Trust Agreement. The Record Date applicable to the first Distribution Date is
the Closing Date and as to each succeeding Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions to any Certificateholder on any Distribution Date shall
be made either (x) by wire transfer in immediately available funds to the
account of such holder at a bank or other entity having appropriate facilities
therefor, if (i) such Holder has so notified the Trustee in writing at least
five Business Days prior to the related Record Date and (ii) such Holder shall
hold (A) 100% of the Class Certificate Balance of any Class of Certificates or
(B) Certificates of any Class with aggregate principal Denominations of not
less than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Except as otherwise provided in the Trust Agreement, the final
distribution on this Certificate will be made in the applicable manner
described above, but only upon presentment and surrender of this Certificate
at the Corporate Trust Office or such other location specified in the notice
to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
* * * * *
<PAGE>
This Class A-4 Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned
by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: October 30, 2000
STATE STREET BANK AND TRUST
COMPANY,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By__________________________
Authorized Officer of
STATE STREET BANK AND
TRUST COMPANY,
not in its individual
capacity but solely
as Trustee
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust, Series 2000-7R
issued in six Classes (Class A-1, Class A-2, Class A-3, Class A-4, Class A-5
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificate, (ii) the distributions thereon after October 25, 2000, and (iii)
the Distribution Account and such assets that are deposited therein from time
to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the Deposited Underlying Certificate, all as more
specifically set forth in the Trust Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds
on deposit in the Distribution Account for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Trust Agreement or, except as expressly provided in
the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the Transfer hereof or in
exchange Hereford or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Boston, Massachusetts (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Trust Agreement. As provided in the
Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust Fund created thereby shall terminate as provided in Article VII
of the Trust Agreement.
<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 of
assignee) the Percentage Interest evidenced by the within Pass-Through
Certificate and hereby authorizes the transfer of registration of such Interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
-----------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
____________________________________________________________________________
________________________________________________________________,___________
for the account of ______,__________________________________________________
account number _______________, or, if mailed by check, to ____.____________
Applicable statements should be mailed to __________________________________
_____________.
This information is provided by ___________________________________,
the assignee named above, or _______________________________________________,
as its agent.
<PAGE>
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary
public in and for said State, personally appeared ______________ __________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
--------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-5
FORM OF CLASS A-5 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 INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
Certificate No.: 1
Cut-off Date: October 25, 2000, after giving effect to
distributions made on such Distribution
Date for the Underlying Trust
First Distribution Date: November 27, 2000
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $86,813,000
Closing Date Principal
Balances evidenced
by all Class A-5
Certificates: $86,813,000
CUSIP: 12669B XA 5
Interest Rate: 6.50%
Maturity Date: January 25, 2031
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R,
Class A-5
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificate, such Trust Fund formed and
the Deposited Underlying Certificate deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE DEPOSITED UNDERLYING CERTIFICATE IS GUARANTEED OR INSURED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Class A-5 Certificates) in that certain beneficial ownership interest
evidenced by all the Class A-5 Certificates in the Trust Fund consisting
primarily of the Deposited Underlying Certificate and deposited by CWMBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Trust Agreement
dated as of October 30, 2000 (the "Trust Agreement") among the Depositor, the
Underlying Certificate Seller and State Street Bank and Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution of
interest received on the Deposited Underlying Certificate will be made on the
25th day of each calendar month, or, if such day is not a Business Day, the
next succeeding Business Day (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to Holders of Class
A-5 Certificates on such Distribution Date pursuant to Section 3.04 of the
Trust Agreement. The Record Date applicable to the first Distribution Date is
the Closing Date and as to each succeeding Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions to any Certificateholder on any Distribution Date shall
be made either (x) by wire transfer in immediately available funds to the
account of such holder at a bank or other entity having appropriate facilities
therefor, if (i) such Holder has so notified the Trustee in writing at least
five Business Days prior to the related Record Date and (ii) such Holder shall
hold (A) 100% of the Class Certificate Balance of any Class of Certificates or
(B) Certificates of any Class with aggregate principal Denominations of not
less than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Except as otherwise provided in the Trust Agreement, the final
distribution on this Certificate will be made in the applicable manner
described above, but only upon presentment and surrender of this Certificate
at the Corporate Trust Office or such other location specified in the notice
to Certificateholders of such final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
* * * * *
<PAGE>
This Class A-5 Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned
by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: October 30, 2000
STATE STREET BANK AND TRUST
COMPANY,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By__________________________
Authorized Officer of
STATE STREET BANK AND
TRUST COMPANY,
not in its individual
capacity but solely
as Trustee
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust, Series 2000-7R
issued in six Classes (Class A-1, Class A-2, Class A-3, Class A-4, Class A-5
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificate, (ii) the distributions thereon after October 25, 2000, and (iii)
the Distribution Account and such assets that are deposited therein from time
to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the Deposited Underlying Certificate, all as more
specifically set forth in the Trust Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds
on deposit in the Distribution Account for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Trust Agreement or, except as expressly provided in
the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the Transfer hereof or in
exchange Hereford or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Boston, Massachusetts (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Trust Agreement. As provided in the
Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust Fund created thereby shall terminate as provided in Article VII
of the Trust Agreement.
<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 of
assignee) the Percentage Interest evidenced by the within Pass-Through
Certificate and hereby authorizes the transfer of registration of such Interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
----------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
____________________________________________________________________________
________________________________________________________________,___________
for the account of ______,__________________________________________________
account number _______________, or, if mailed by check, to ____.____________
Applicable statements should be mailed to __________________________________
_____________.
This information is provided by ___________________________________,
the assignee named above, or _______________________________________________,
as its agent.
<PAGE>
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary
public in and for said State, personally appeared ______________ __________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT B
FORM OF CLASS A-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, AS AMENDED (THE "CODE").
BY ACCEPTING THIS CERTIFICATE, A TRANSFEREE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, NOR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, NOR IS SUCH
TRANSFEREE ACQUIRING THIS CERTIFICATE ON BEHALF OF OR WITH THE ASSETS OF A
PLAN.
Certificate No.: 1
Cut-off Date: October 25, 2000, after giving effect
to distributions made on such
Distribution Date for the Underlying
Trust
First Distribution Date: November 27, 2000
Closing Date Principal
Balance evidenced
by this Certificate
("Denomination"): $100
Closing Date Principal
Balances evidenced
by all Class A-R
Certificates: $100
CUSIP: 12669B XB 3
Interest Rate: 6.50%
Maturity Date: January 25, 2031
<PAGE>
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R,
CLASS A-R
evidencing a beneficial ownership interest in a Trust Fund consisting
primarily of the Deposited Underlying Certificate, such Trust Fund formed and
the Deposited Underlying Certificate deposited by
CWMBS, INC.
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST
IN, AND IS NOT GUARANTEED BY CWMBS, INC. OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE DEPOSITED UNDERLYING CERTIFICATE IS GUARANTEED OR INSURED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
This certifies that COUNTRYWIDE SECURITIES CORPORATION, is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Class A-R Certificates) in that certain beneficial
ownership interest evidenced by all the Class A-R Certificates in the Trust
Fund consisting primarily of the Deposited Underlying Certificate and
deposited by CWMBS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Trust Agreement dated as of October 30, 2000 (the "Trust
Agreement") among the Depositor, the Underlying Certificate Seller and State
Street Bank and Trust Company, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Trust Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Trust Agreement, a distribution of
interest received on the Deposited Underlying Certificates will be made on the
25th day of each calendar month, or, if such day is not a Business Day, the
next succeeding Business Day (a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record
Date in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount required to be distributed to the Holder of
the Class A-R Certificate on such Distribution Date pursuant to Section 3.04
of the Trust Agreement. The Record Date applicable to the first Distribution
Date is the Closing Date and as to each succeeding Distribution Date is the
last Business Day of the month next preceding the month of such Distribution
Date.
Distributions to any Certificateholder on any Distribution Date shall
be made either (x) by wire transfer in immediately available funds to the
account of such holder at a bank or other entity having appropriate facilities
therefor, if (i) such Holder has so notified the Trustee in writing at least
five Business Days prior to the related Record Date and (ii) such Holder shall
hold (A) 100% of the Class Certificate Balance of any Class of Certificates or
(B) Certificates of any Class with aggregate principal Denominations of not
less than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register. Except as otherwise provided in the Trust Agreement, the final
distribution on this Certificate will be made in the applicable manner
described above, but only upon presentment and surrender of this Certificate
at the Corporate Trust Office or such other location specified in the notice
to Certificateholders of such final distribution.
No Transfer of a Class A-R Certificate shall be made unless the
Trustee shall have received (i) a representation letter from the transferee of
a Class A-R Certificate in form and substance satisfactory to the Trustee that
such transferee is not an employee benefit plan subject to Section 406 of
ERISA or a plan subject to Section 4975 of the Code, nor a Person acting on
behalf of any such plan or using the assets of any such plan to effect such
Transfer or (ii) in the case of any such Class A-R Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or a
plan subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any Person acting on
behalf of any such plan or using the assets of any such plan to effect such
Transfer, an Opinion of Counsel to the effect that the purchase or holding of
a Class A-R Certificate will not result in the assets of the REMIC under the
Trust Agreement being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Trustee
to any obligation in addition to those expressly undertaken in the Trust
Agreement. Notwithstanding anything else to the contrary herein, any purported
Transfer of a Certificate to or on behalf of an employee benefit plan subject
to ERISA or a plan subject to Section 4975 of the Code without the delivery to
the Trustee of an Opinion of Counsel, which shall not be an expense of the
Depositor or the Trustee, satisfactory to the Trustee as described above shall
be null and void and of no effect.
Each Holder of this Class A-R Certificate shall be deemed to have
agreed to be bound by the restrictions that (i) each person holding or
acquiring any Ownership Interest in this Class A-R Certificate must be a
Permitted Transferee, (ii) no Ownership Interest in this Class A-R Certificate
may be transferred without delivery to the Trustee of (a) a Transfer Affidavit
of the proposed transferee and (b) a Transfer certificate of the transferor,
each of such documents to be in the form described in the Trust Agreement,
(iii) each person holding or acquiring any Ownership Interest in this Class
A-R Certificate must agree to require a Transfer Affidavit and to deliver a
Transferor Affidavit to the Trustee as required pursuant to the Trust
Agreement, (iv) any attempted or purported Transfer of any Ownership Interest
in this Class A-R Certificate in violation of such restrictions will be
absolutely null and void and shall vest no rights in the purported transferee,
and (v) if any person other than a Permitted Transferee acquires any Ownership
Interest in this Class A-R Certificate in violation of such restrictions, then
the Trustee will have the right, in its sole discretion and without notice to
the Holder of this Class A-R Certificate, to sell this Class A-R Certificate
to a purchaser selected by the Trustee, which purchaser may be the Trustee, or
any affiliate of the Trustee, on such terms and conditions as the Trustee may
choose.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
* * * * *
<PAGE>
This Class A-R Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned
by an authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: October 30, 2000
STATE STREET BANK AND TRUST
COMPANY,
not in its individual
capacity but solely as
Trustee
By ___________________________
Countersigned:
By___________________________
Authorized Officer of
STATE STREET BANK AND
TRUST COMPANY,
not in its individual
capacity but solely
as Trustee
<PAGE>
Reverse of Certificate
CWMBS, INC.
RESECURITIZATION MORTGAGE TRUST, SERIES 2000-7R
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Resecuritization Mortgage Trust, Series 2000-7R
issued in six Classes (Class A-1, Class A-2, Class A-3, Class A-4, Class A-5
and Class A-R, herein collectively called the "Certificates"), and
representing a beneficial ownership interest in (i) the Deposited Underlying
Certificate, (ii) the distributions thereon after October 25, 2000, and (iii)
the Distribution Account and such assets that are deposited therein from time
to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto.
The Certificates are limited in right of payment to certain
distributions in respect of the Deposited Underlying Certificate, all as more
specifically set forth in the Trust Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds
on deposit in the Distribution Account for payment hereunder and that the
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Trust Agreement or, except as expressly provided in
the Trust Agreement, subject to any liability under the Trust Agreement.
This Certificate does not purport to summarize the Trust Agreement
and reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Trustee.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates
affected thereby. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the Transfer hereof or in
exchange Hereford or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of any of the Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
Boston, Massachusetts (or such other location designated by the Trustee,
provided that the Trustee shall have provided the Certificateholders with
prompt written notice of any such change in location), accompanied by a
written instrument of transfer in form satisfactory to the Trustee executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Trust Agreement. As provided in the
Trust Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust Fund created thereby shall terminate as provided in Article VII
of the Trust Agreement.
<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 of
assignee) the Percentage Interest evidenced by the within Pass-Through
Certificate and hereby authorizes the transfer of registration of such Interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
------------------------------------------------------------------------------
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
____________________________________________________________________________
________________________________________________________________,___________
for the account of ______,__________________________________________________
account number _______________, or, if mailed by check, to ____.____________
Applicable statements should be mailed to __________________________________
_____________.
This information is provided by ___________________________________,
the assignee named above, or _______________________________________________,
as its agent.
<PAGE>
STATE OF )
)ss.:
COUNTY OF )
On the __th day of _________, 20__ before me, a notary
public in and for said State, personally appeared ______________ __________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
-----------------------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT C
FORM OF TRANSFEROR'S AFFIDAVIT
---------------------
Date
CWMBS, Inc.
4500 Park Granada
Calabasas, California 91302
Attention: David A. Spector
State Street Bank and Trust Company
2 Avenue de Lafayette
6th Floor
Boston, Massachusetts 02111
Attention: Global Investor Services Group--
Corporate Trust Department
Re: CWMBS, Inc.
Resecuritization Mortgage Certificates, Series 2000-7R
------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class A-R Certificate
issued pursuant to the Trust Agreement dated as of October 30, 2000 among
CWMBS, Inc., as depositor, Countrywide Securities Corporation, as underlying
certificate seller, and State Street Bank and Trust Company, as trustee, we
certify that to the extent we are disposing of a Class A-R Certificate, we
have no knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
___________________________
Print Name of Transferor
By:
------------------------
Authorized Officer
<PAGE>
EXHIBIT D
[FORM OF TRANSFER AFFIDAVIT FOR THE
CLASS A-R CERTIFICATE]
CWMBS, Inc.
Resecuritization Mortgage Certificates
Series 2000-7R
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________, the proposed
Transferee of an Ownership Interest in a Class A-R Certificate (the
"Certificate") issued pursuant to the Trust Agreement, (the "Agreement"),
relating to the above-referenced Series, by and among CWMBS, Inc., as
depositor (the "Depositor"), Countrywide Securities Corporation, as underlying
certificate seller, and State Street Bank and Trust Company, as trustee.
Capitalized terms used, but not defined herein or in Exhibit 1 hereto, shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii)
as nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit.
The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 4.02(d) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 4.02(d) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit C to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of such a plan.
* * *
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ___ day of _______________, 20__.
-------------------------------
PRINT NAME OF TRANSFEREE
By: ___________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
----------------------------
[Assistant] Secretary
Personally appeared before me the above-named __________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ______ day of _____, 20__.
--------------------------
NOTARY PUBLIC
My Commission expires the
___ day of ___________, 20__
<PAGE>
EXHIBIT 1
to EXHIBIT D
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(l) of the
Code) with respect to any Class A-R Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, an estate whose
income from sources without the United States is includible in gross income
for United States federal income tax purposes regardless of its connection
with the conduct of a trade or business within the United States or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust unless such Person
has furnished the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8EC1 or any applicable successor form, and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Class A-R Certificate to such
Person may cause the REMIC hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with the exception of the Federal Home Loan Mortgage Corporation, a majority
of its board of directors is not selected by such government unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
<PAGE>
EXHIBIT 2
to EXHIBIT D
Section 4.02(d) of the Agreement
(d) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as
Exhibit D.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person attempts
to Transfer its Ownership Interest in a Residual Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer
of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an
Ownership Interest in a Residual Certificate to any other Person if
it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section 4.02(d) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee
shall become a Holder of a Residual Certificate in violation of the
provisions of this Section 4.02(d), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person
for any registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 4.02(c) and this Section 4.02(d) or for
making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under the
provisions of this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit and Transferor
Certificate. The Trustee shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in fact
not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee
of such Certificate.
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section
860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a
Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 4.02(d) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Underlying Certificate Seller or the Depositor, to the effect that the
elimination of such restrictions will not cause the REMIC hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is
not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
