GRANTOR TRUST AGREEMENT
Dated as of November 1, 1999
among
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor,
WASHINGTON MUTUAL BANK, FA,
and
BANK ONE, NATIONAL ASSOCIATION,
as Grantor Trustee
Mortgage-Backed Pass-Through Certificates
Series 1999-WM1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION ............................... 2
Section 1.01 DEFINITIONS ............................................ 2
Section 1.02 USE OF WORDS AND PHRASES ............................... 8
Section 1.03 CAPTIONS; TABLE OF CONTENTS ............................ 9
Section 1.04 OPINIONS ............................................... 9
ARTICLE II ESTABLISHMENT AND ORGANIZATION OF THE TRUST ..................... 10
Section 2.01 ESTABLISHMENT OF THE TRUST ............................. 10
Section 2.02 OFFICE ................................................. 10
Section 2.03 PURPOSES AND POWERS .................................... 10
Section 2.04 APPOINTMENT OF THE GRANTOR TRUSTEE; DECLARATION OF TRUST 10
Section 2.05 EXPENSES OF THE TRUST .................................. 10
Section 2.06 OWNERSHIP OF THE TRUST ................................. 10
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEPOSITOR ..... 12
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR ........ 12
Section 3.02 CONVEYANCE OF THE REMIC CERTIFICATES ................... 14
Section 3.04 ACCEPTANCE BY TRUSTEE .................................. 15
ARTICLE IV ISSUANCE AND SALE OF CERTIFICATES ............................... 16
Section 4.01 ISSUANCE OF CERTIFICATES ............................... 16
Section 4.02 SALE OF CERTIFICATES ................................... 16
ARTICLE V CERTIFICATES AND TRANSFER OF INTERESTS ........................... 17
Section 5.01 TERMS .................................................. 17
Section 5.02 FORMS .................................................. 17
Section 5.03 EXECUTION, AUTHENTICATION AND DELIVERY ................. 17
Section 5.04 REGISTRATION AND TRANSFER OF CERTIFICATES .............. 17
Section 5.05 MUTILATED, DESTROYED, LOST OR STOLEN FLOATING RATE
CERTIFICATES ........................................... 19
Section 5.06 PERSONS DEEMED OWNERS .................................. 20
Section 5.07 CANCELLATION ........................................... 20
Section 5.08 ASSIGNMENT OF RIGHTS ................................... 20
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VI COVENANTS ....................................................... 21
Section 6.01 DISTRIBUTIONS .......................................... 21
Section 6.02 WITHHOLDING ............................................ 21
Section 6.03 PROTECTION OF TRUST ESTATE ............................. 21
Section 6.04 PERFORMANCE OF OBLIGATIONS ............................. 22
Section 6.05 NEGATIVE COVENANTS ..................................... 22
Section 6.06 NO OTHER POWERS ........................................ 23
Section 6.07 LIMITATION OF SUITS .................................... 23
Section 6.08 UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE
DISTRIBUTIONS........................................... 24
Section 6.09 RIGHTS AND REMEDIES CUMULATIVE ......................... 24
Section 6.10 DELAY OR OMISSION NOT WAIVER ........................... 24
Section 6.11 CONTROL BY HOLDERS ..................................... 24
Section 6.12 ACCESS TO CERTIFICATEHOLDERS' NAMES AND ADDRESSES ...... 24
ARTICLE VII ACCOUNTS, DISBURSEMENTS AND RELEASES............................ 26
Section 7.01 COLLECTION OF MONEY .................................... 26
Section 7.02 ESTABLISHMENT OF ACCOUNTS .............................. 26
Section 7.03 FLOW OF FUNDS .......................................... 26
Section 7.04 INVESTMENT OF ACCOUNTS ................................. 27
Section 7.05 ELIGIBLE INVESTMENTS ................................... 27
Section 7.06 ACCOUNTING AND DIRECTIONS BY GRANTOR TRUSTEE ........... 28
Section 7.07 REPORTS BY GRANTOR TRUSTEE TO HOLDERS .................. 29
Section 7.08 REPORTS BY GRANTOR TRUSTEE ............................. 29
ARTICLE VIII SERVICING AND ADMINISTRATION OF ASSETS....................... 30
Section 8.01 TERMINATION OF SWAP AGREEMENTS ......................... 30
Section 8.02 TRANSFER OF SWAP AGREEMENTS ............................ 30
ARTICLE IX TERMINATION OF TRUST ............................................ 33
Section 9.01 TERMINATION OF TRUST ................................... 33
Section 9.02 DISPOSITION OF PROCEEDS ................................ 33
ARTICLE X THE GRANTOR TRUSTEE............................................... 34
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TABLE OF CONTENTS
(continued)
Page
Section 10.01 CERTAIN DUTIES AND RESPONSIBILITIES .................... 34
Section 10.02 CERTAIN RIGHTS OF THE GRANTOR TRUSTEE .................. 35
Section 10.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF CERTIFICATES 36
Section 10.04 MAY OWN CERTIFICATES ................................... 36
Section 10.05 MONEY HELD IN TRUST .................................... 36
Section 10.06 CORPORATE GRANTOR TRUSTEE REQUIRED; ELIGIBILITY ........ 36
Section 10.07 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR ...... 37
Section 10.08 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR GRANTOR TRUSTEE . 38
Section 10.9 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF THE GRANTOR TRUSTEE ........................ 38
Section 10.10 LIABILITY OF THE GRANTOR TRUSTEE ....................... 38
Section 10.11 APPOINTMENT OF CO-GRANTOR TRUSTEE OR SEPARATE GRANTOR
TRUSTEE ................................................ 39
ARTICLE XI MISCELLANEOUS.................................................... 41
Section 11.01 COMPLIANCE CERTIFICATES AND OPINIONS ................... 41
Section 11.02 FORM OF DOCUMENTS DELIVERED TO THE GRANTOR TRUSTEE ..... 41
Section 11.03 ACTS OF HOLDERS ........................................ 42
Section 11.04 NOTICES, ETC. TO GRANTOR TRUSTEE ....................... 42
Section 11.05 NOTICES AND REPORTS TO HOLDERS; WAIVER OF NOTICES ...... 43
Section 11.06 RULES BY GRANTOR TRUSTEE ............................... 43
Section 11.07 SUCCESSORS AND ASSIGNS ................................. 43
Section 11.08 SEVERABILITY ........................................... 43
Section 11.09 BENEFITS OF AGREEMENT .................................. 43
Section 11.10 LEGAL HOLIDAYS ......................................... 44
Section 11.11 GOVERNING LAW .......................................... 44
Section 11.12 COUNTERPARTS ........................................... 44
Section 11.13 USURY .................................................. 44
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TABLE OF CONTENTS
(continued)
Page
Section 11.14 AMENDMENT .............................................. 44
Section 11.15 ADDITIONAL LIMITATION ON ACTION AND IMPOSITION OF TAX .. 45
Section 11.16 NOTICES ................................................ 45
Exhibit A: Form of Floating Rate Certificates
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GRANTOR TRUST AGREEMENT, relating to WASHINGTON MUTUAL BANK, FA SERIES
1999-WM1 GRANTOR TRUST (the "Trust"), dated as of November 1, 1999 by and among
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation, in
its capacity as depositor (the "Depositor"), WASHINGTON MUTUAL BANK, FA
("Washington Mutual") and BANK ONE, NATIONAL ASSOCIATION, a national banking
association, in its capacity as the grantor trustee (the "Grantor Trustee").
WHEREAS, the Depositor wishes to establish the Trust and provide for the
allocation and sale of the beneficial interests therein and the maintenance and
distribution thereof;
WHEREAS, the Depositor wishes to transfer to the Trust the Washington
Mutual Bank, FA Mortgage-Backed Pass-Through Certificates, Series 1999-WM1 Class
4 A-2, Class 5 A-3 and Class 6 A-3 (the "Class 4 A-2 REMIC Certificates," "Class
5 A-3 REMIC Certificates" and Class 6 A-3 REMIC Certificates," respectively, and
collectively, the "REMIC Certificates") which, along with each swap agreement
dated December 3, 1999 between Credit Suisse Financial Products (the "Swap
Counterparty") and the Grantor Trustee (each, a "Swap Agreement") constitute the
principal assets of the Trust Estate;
WHEREAS, pursuant to each Swap Agreement the Grantor Trustee will
distribute to the Swap Counterparty on each Distribution Date all amounts in
respect of interest received on each Class of REMIC Certificates on each REMIC
Distribution Date and shall have the right to receive from the Swap Counterparty
on the related Swap Payment Date an amount equal to interest due on such
Distribution Date on the related Class of Floating Rate Certificates at the
related Floating Pass-Through Rate, subject to the netting provisions set forth
in each Swap Agreement;
WHEREAS, all things necessary to make the Floating Rate Certificates, when
executed and authenticated by the Grantor Trustee, valid instruments, and to
make this Agreement a valid agreement, in accordance with their and its terms,
have been done; and
WHEREAS, Bank One, National Association is willing to serve in the
capacity of Grantor Trustee hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Depositor, Washington Mutual and the Grantor Trustee
hereby agree as follows:
CONVEYANCE
To provide for the distribution of the interest on and/or principal of the
Floating Rate Certificates in accordance with their terms, all of the sums
distributable under this Agreement with respect to the Floating Rate
Certificates and the performance of the covenants contained in this Agreement,
(i) the Depositor hereby sells, sets over, assigns, transfers and otherwise
conveys to the Trust, without recourse and for the exclusive benefit of the
Holders of the Floating Rate Certificates, all of its right, title and interest
in and to (a) the REMIC Certificates issued pursuant to a Pooling and Servicing
Agreement dated November 1, 1999 among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, Washington Mutual Bank, FA, as Seller and
Servicer, and Bank One, National Association, as Trustee (the "Pooling and
Servicing Agreement"); and (b) proceeds of all the foregoing (including, but not
by way of limitation, cash
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proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, rights to payment of any and every kind, and
other forms of obligations and receivables which at any time constitute all or
part of or are included in the proceeds of any of the foregoing) to pay the
Certificates as specified herein; and (ii) the Grantor Trustee hereby enters
into each Swap Agreement on behalf of the Trust for the benefit of the related
Class of Floating Rate Certificates; ((i) and (ii) above shall be collectively
referred to herein as the "Trust Estate").
The Grantor Trustee acknowledges such sale, accepts the Trust hereunder in
accordance with the provisions hereof and agrees to perform its duties in
accordance with the terms of this Agreement.
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 1.01 DEFINITIONS.
For all purposes of this Agreement, the following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
"Account": Any account established in accordance with Section 7.02 hereof.
"Accrual Period": With respect to the Floating Rate Certificates and any
Distribution Date, the period commencing on the 23rd calendar day of the month
immediately preceding the month in which such Distribution Date occurs, to and
including the 22nd calendar day of the month in which such Distribution Date
occurs. All calculations of interest on the Floating Rate Certificates will be
made on the basis of twelve 30-day months and a 360-day year.
"Agreement": This Grantor Trust Agreement, as it may be amended from time
to time, including any Exhibits hereto.
"Authorized Officer": With respect to any Person, any officer of such
Person who is authorized to act for such Person in matters relating to the
Agreement, and whose action is binding upon such Person; with respect to the
Depositor, the President and any Vice President, and with respect to the Grantor
Trustee, any Vice President, Assistant Vice President, Trust Officer or any
other officer of the Grantor Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject located at the Corporate Trust Office.
"Business Day": Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the States of New York or Washington or the
state in which the Corporate Trust Office is located are authorized or obligated
by law or executive order to be closed.
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"Calculation Agent": The Swap Counterparty or such other Person as may be
specified in the related Swap Agreement.
"Certificateholder or Holder": The Person in whose name a Floating Rate
Certificate is registered in the Register.
"Certificate Rate": As defined in the Pooling and Servicing Agreement.
"Class 4 A-2 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class 4 A-2 Floating Rate Certificates less any amounts actually distributed on
such Class 4 A-2 Floating Rate Certificates with respect to principal thereon
pursuant to Section 7.03(d) and less any amounts of Realized Losses allocated to
reduce the outstanding principal balance of the related Class of REMIC
Certificates pursuant to the Pooling and Servicing Agreement prior to the REMIC
Distribution Date immediately preceding such date of determination.
"Class 5 A-3 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class 5 A-3 Floating Rate Certificates less any amounts actually distributed on
such Class 5 A-3 Floating Rate Certificates with respect to principal thereon
pursuant to Section 7.03(d) and less any amounts of Realized Losses allocated to
reduce the outstanding principal balance of the related Class of REMIC
Certificates pursuant to the Pooling and Servicing Agreement prior to the REMIC
Distribution Date immediately preceding such date of determination.
"Class 6 A-3 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class 6 A-3 Floating Rate Certificates less any amounts actually distributed on
such Class 6 A-3 Floating Rate Certificates with respect to principal thereon
pursuant to Section 7.03(d) and less any amounts of Realized Losses allocated to
reduce the outstanding principal balance of the related Class of REMIC
Certificates pursuant to the Pooling and Servicing Agreement prior to the REMIC
Distribution Date immediately preceding such date of determination.
"Class": The Class 4 A-2 Floating Rate Certificates, Class 5 A-3 Floating
Rate Certificates or Class 6 A-3 Floating Rate Certificates, as applicable.
"Class 4 A-2 Floating Rate Certificate": Any one of the Certificates
designated on the face thereof as a Class 4 A-2 Grantor Trust Certificate,
substantially in the form annexed hereto as Exhibit A, authenticated and
delivered by the Grantor Trustee, representing the right to distributions as set
forth herein. The Class 4 A-2 Floating Rate Certificates represent an interest
in the Class 4 A-2 REMIC Certificates and the Swap Agreement relating to the
Class 4 A-2 Floating Rate Certificates.
"Class 5 A-3 Floating Rate Certificate": Any one of the Certificates
designated on the face thereof as a Class 5 A-3 Grantor Trust Certificate,
substantially in the form annexed hereto as Exhibit A, authenticated and
delivered by the Grantor Trustee, representing the right to
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distributions as set forth herein. The Class 5 A-3 Floating Rate Certificates
represent an interest in the Class 5 A-3 REMIC Certificates and the Swap
Agreement relating to the Class 5 A-3 Floating Rate Certificates.
"Class 6 A-3 Floating Rate Certificate": Any one of the Certificates
designated on the face thereof as a Class 6 A-3 Grantor Trust Certificate,
substantially in the form annexed hereto as Exhibit A, authenticated and
delivered by the Grantor Trustee, representing the right to distributions as set
forth herein. The Class 6 A-3 Floating Rate Certificates represent an interest
in the Class 6 A-3 REMIC Certificates and the Swap Agreement relating to the
Class 6 A-3 Floating Rate Certificates.
"Closing": As defined in Section 4.02 hereof.
"Code": The Internal Revenue Code of 1986, as amended.
"Conversion Date": The latest date on which a Swap Agreement terminates,
which shall be the Distribution Date in January 2002, in the case of the Swap
Agreement relating to the Class 4 A-2 Certificates, April 2003, in the case of
the Swap Agreement relating to the Class 5 A-3 Certificates, February 2004, in
the case of the Swap Agreement relating to the Class 6 A-3 Certificates.
"Corporate Trust Office": The designated office of the Grantor Trustee in
the State of Illinois at which any particular time its corporate trust business
shall be administered, which office at the date of the execution of this
Agreement is located is located at 1 Bank One Plaza, Suite 1L1-0126, Chicago,
Illinois 60670-0126.
"Current Interest": With respect to each Class of Floating Rate
Certificates, on any Distribution Date, the amount of interest paid on the
related REMIC Certificate on the immediately preceding REMIC Distribution Date.
"DCR": Duff & Phelps Credit Rating Company, or any successor thereto.
"Depositor": Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or any successor thereto.
"Depository": The Depository Trust Company, 7 Hanover Square, New York,
New York 10004, and any successor Depository hereafter named.
"Direct Participant" or "DTC Participant": Any broker-dealer, bank or
other financial institution for which the Depository holds Floating Rate
Certificates from time to time as a securities depository.
"Distribution Date": Any date on which the Grantor Trustee is required to
make distributions to the Holders, which shall be the 23rd calendar day of each
month, or if such day is not a Business Day, the next Business Day, commencing
in December, 1999.
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"Eligible Account": Either (i) an account or accounts maintained with a federal
or state-chartered depository institution or trust company (which may be
Washington Mutual or an affiliate of Washington Mutual or which may be the
Grantor Trustee or an affiliate of the Grantor Trustee) the short-term unsecured
debt obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated by each Rating
Agency not lower than P-1 in the case of Moody's and A-1+ in the case of DCR;
provided that so long as Washington Mutual is the Servicer, any account
maintained with the Servicer shall be an Eligible Account if the long-term
unsecured debt obligations of Washington Mutual are rated not lower than A2 by
Moody's, (ii) an account or accounts the deposits in which are fully insured by
the FDIC, provided that any such deposits not so insured shall be otherwise
maintained such that (as evidenced by an Opinion of Counsel delivered to the
Grantor Trustee and the Rating Agencies) the applicable Certificateholders have
a claim with respect to the funds in such account or a perfected first priority
security interest against any collateral (which shall be limited to Eligible
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company with
which such account is maintained, (iii) a trust account or accounts maintained
with the Grantor Trustee or the trust department of a federal or state chartered
depository institution or trust company acting in its fiduciary capacity,
provided that any such state chartered depository institution is subject to
regulation regarding funds on deposit substantially similar to the regulations
set forth in 12 C.F.R. Section 9.10(b) or (iv) any account maintained at any
Federal Home Loan Bank.
"Eligible Investments": Those investments so designated pursuant to
Section 7.05 hereof.
"Fannie Mae": Federal National Mortgage Association, a federally-chartered
and privately-owned corporation existing under the Federal National Mortgage
Association Charter Act, as amended, or any successor thereof.
"FDIC": The Federal Deposit Insurance Corporation, a corporate
instrumentality of the United States, or any successor thereto.
"Floating Pass-Through Rate": For any Distribution Date and the Class 4
A-2 Floating Rate Certificates, Class 5 A-3 Floating Rate Certificates and Class
6 A-3 Floating Rate Certificates, LIBOR plus 0.54%, 0.22% and 0.26% per annum,
respectively, plus the Certificate Rate for the related Class of REMIC
Certificates for the immediately preceding REMIC Distribution Date, minus the
Certificate Rate for such Class of REMIC Certificates for the initial REMIC
Distribution Date.
"Floating Rate Certificate": Any of the Class 4 A-2 Floating Rate
Certificates, Class 5 A-3 Floating Rate Certificates or Class 6 A-3 Floating
Rate Certificates.
"Floating Rate Certificate Principal Balance": The Class 4 A-2 Certificate
Principal Balance, the Class 5 A-3 Certificate Principal Balance or the Class 6
A-3 Certificate Principal Balance, as applicable.
5
"Freddie Mac": The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created pursuant to the Emergency Home
Finance Act of 1970, as amended, or any successor thereof.
"Grantor Trust Account": The certificate account established in accordance
with Section 7.02 hereof and maintained in the corporate trust department of the
Grantor Trustee; provided that the funds in such account shall not be commingled
with other funds held by the Grantor Trustee.
"Grantor Trustee": Bank One, National Association, a national banking
association, not in its individual capacity but solely as Grantor Trustee under
this Agreement, and any successor hereunder.
"Highest Lawful Rate": As defined in Section 11.13.
"Indirect Participants": Entities, such as banks brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with a
DTC Participant, either directly or indirectly.
"Interest Carry Forward Amount": With respect to each Class of Floating
Rate Certificates, on any Distribution Date, the amount, if any, by which (i)
the sum of (A) the related Interest Distribution Amount as of the immediately
preceding Distribution Date and (B) any related unpaid Interest Carry Forward
Amount from all previous Distribution Dates exceeds (ii) the amount of the
actual distribution with respect to interest made to the Holders of the related
Floating Rate Certificates on such immediately preceding Distribution Date.
"Interest Distribution Amount": For each Class of Floating Rate
Certificates, as of any Distribution Date on or prior to the date on which the
related Swap Agreement terminates, interest accrued during the related Accrual
Period on the Floating Rate Certificate Principal Balance of such Class at the
Floating Pass-Through Rate for such Class and Distribution Date, minus any
Realized Losses applied to reduce interest payable on the related class of REMIC
Certificates on the immediately preceding REMIC Distribution Date. For each
Class of Floating Rate Certificates, as of any Distribution Date after the date
on which the related Swap Agreement terminates, interest payable on the related
Class of REMIC Certificates pursuant to the terms of the Pooling and Servicing
Agreement.
"LIBOR": With respect to any Accrual Period for the Floating Rate
Certificates, the rate determined by the Calculation Agent on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided that if such rate does not appear on Telerate Page
3750, the rate for such date and Class of Floating Rate Certificates will be
determined on the basis of the rates at which one-month U.S. dollar deposits in
amounts equal to the Floating Rate Certificate Principal Balance of the related
Class to leading European banks are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Calculation Agent will request the
principal
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London office of each of the Reference Banks to provide a quotation of its rate.
If at least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Calculation Agent, at
approximately 11:00 a.m. (New York City time) on such date for one-month U.S.
dollar loans in amounts equal to the Floating Rate Certificate Principal Balance
of the related Class to leading European banks.
"LIBOR Determination Date": With respect to any Accrual Period for the
Certificates, two London and New York Banking Days preceding the commencement of
such Accrual Period.
"London and New York Banking Day": Any day on which commercial banks are
open for business (including dealings in foreign exchange and foreign currency
options) in London and New York City.
"Moody's": Moody's Investors Service, Inc. or any successor thereto.
"Officer's Certificate": A certificate signed by any Authorized Officer of
any Person delivering such certificate delivered hereunder.
"Opinion of Counsel": A written opinion of counsel, who may be counsel to
the Depositor or the Servicer, reasonably acceptable to the Grantor Trustee.
"Outstanding": With respect to all Certificates of a Class, as of any date
of determination, all such Floating Rate Certificates theretofore executed and
delivered hereunder except:
(i) Floating Rate Certificates theretofore canceled by the
Registrar or delivered to the Registrar for cancellation;
(ii) Floating Rate Certificates or portions thereof for which
full and final payment of money in the necessary amount has been theretofore
deposited with the Grantor Trustee in trust for the Holders of such Floating
Rate Certificates;
(iii) Floating Rate Certificates in exchange for or in lieu of
which other Floating Rate Certificates have been executed and delivered pursuant
to this Agreement, unless proof satisfactory to the Grantor Trustee is presented
that any such Floating Rate Certificates are held by a bona fide purchaser;
(iv) Floating Rate Certificates alleged to have been
destroyed, lost or stolen for which replacement Floating Rate Certificates have
been issued as provided for in Section 5.05 hereof; and
(v) Floating Rate Certificates as to which the Grantor Trustee
has made the final distribution thereon, whether or not such Floating Rate
Certificate is ever returned to the Grantor Trustee.
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"Percentage Interest": With respect to a Class of the Floating Rate
Certificates, a fraction, expressed as a percentage, the numerator of which is
the initial Floating Rate Certificate Principal Balance represented by such
Certificate and the denominator of which is the aggregate initial Floating Rate
Certificate Principal Balance represented by all the Floating Rate Certificates
in such Class.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Pooling and Servicing Agreement": The Pooling and Servicing Agreement,
dated as of November 1, 1999, among the Depositor, Washington Mutual, as seller
and servicer, and Bank One, National Association, as trustee.
"Principal Distribution Amount": For each Class, as of any Distribution
Date, the payment received by the Trust in respect of principal of the related
Class of REMIC Certificates on the immediately preceding REMIC Distribution
Date.
"Rating Agencies": Collectively, Moody's, DCR or any successors thereto.
"Realized Losses": As defined in the Pooling and Servicing Agreement.
"Record Date": With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which the
applicable Distribution Date occurs.
"Reference Banks": Any four major banks in the London interbank market
selected by the Calculation Agent.
"Register": The register maintained by the Registrar in accordance with
Section 5.04 hereof, in which the names of the Holders are set forth.
"Registrar": The Grantor Trustee, acting in its capacity as Registrar
appointed pursuant to Section 5.04 hereof.
"REMIC Distribution Date": The 19th calendar day of each month, commencing
December 19, 1999, or if such day is not a Business Day, the next Business Day.
"Servicer": Washington Mutual Bank, FA, as servicer under the Pooling and
Servicing Agreement.
"Startup Day": December 3, 1999.
"Swap Payment": On each Swap Payment Date and with respect to each Swap
Agreement, (A) the amount that is payable to the Grantor Trustee from the Swap
Counterparty equal to the Interest Distribution Amount on the related Class of
Floating Rate Certificates on the
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related Distribution Date or (B) the amount that is payable to the Swap
Counterparty from the Grantor Trustee, equal to the Current Interest received on
such Distribution Date on the related Class of REMIC Certificates, in each case
in accordance with the terms of the related Swap Agreement.
"Swap Payment Date": Each Distribution Date.
"Tax Return": The federal income tax return to be filed on behalf of the
Trust together with any and all other information reports or returns that may be
required to be furnished to the Holders of the Certificates or filed with the
Internal Revenue Service as any other governmental taxing authority under any
applicable provision of federal, state or local tax laws.
"Telerate Page 3750": The display designated as page "3750" on the Dow
Jones Telerate Service (or such other page as may replace page 3750 on that
report for the purpose of displaying London interbank offered rates of major
banks).
"Trust": Washington Mutual Bank, FA Series 1999-WM1 Grantor Trust, the
trust created under this Agreement.
"Trust Estate": As defined in the conveyance clause under this Agreement.
"Voting Rights": The portion of the aggregate voting rights of all the
Floating Rate Certificates evidenced by a Floating Rate Certificate, which will
be allocated to the Floating Rate Certificates (without regard to Class) in
proportion to their respective initial Floating Rate Certificate Principal
Balances.
"Washington Mutual": Washington Mutual Bank, FA, and its successors and
assigns.
Section 1.02 USE OF WORDS AND PHRASES.
"Herein", "hereby", "hereunder", "hereof", "hereinbefore", "hereinafter"
and other equivalent words refer to this Agreement as a whole and not solely to
the particular section of this Agreement in which any such word is used. The
definitions set forth in Section 1.01 hereof include both the singular and the
plural. Whenever used in this Agreement, any pronoun shall be deemed to include
both singular and plural and to cover all genders.
Section 1.03 CAPTIONS; TABLE OF CONTENTS.
The captions or headings in this Agreement and the Table of Contents are
for convenience only and in no way define, limit or describe the scope and
intent of any provisions of this Agreement.
Section 1.04 OPINIONS.
Each opinion with respect to the validity, binding nature and
enforceability of documents or Floating Rate Certificates may be qualified to
the extent that the same may be limited by
9
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
principles of equity (whether considered in a proceeding or action in equity or
at law) and may state that no opinion is expressed on the availability of the
remedy of specific enforcement, injunctive relief or any other equitable remedy.
Any opinion required to be furnished by any Person hereunder must be delivered
by counsel upon whose opinion the addressee of such opinion may reasonably rely,
and such opinion may state that it is given in reasonable reliance upon an
opinion of another, a copy of which must be attached, concerning the laws of a
foreign jurisdiction.
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ARTICLE II
ESTABLISHMENT AND ORGANIZATION OF THE TRUST
Section 2.01 ESTABLISHMENT OF THE TRUST.
The parties hereto do hereby create and establish, pursuant to the laws of
the State of New York and this Agreement, the Trust, which, for convenience,
shall be known as "Washington Mutual Bank, FA Series 1999-WM1 Grantor Trust".
Section 2.02 OFFICE.
The office of the Trust shall be in care of the Grantor Trustee, addressed
to 1 Bank One Plaza, Chicago, Illinois 60670, Attention: Global Corporate Trust
Services, or at such other address as the Grantor Trustee may designate by
notice to the Depositor and the Servicer.
Section 2.03 PURPOSES AND POWERS.
The purpose of the Trust is to engage in the following activities and only
such activities: (i) the issuance of the Floating Rate Certificates and
distribution of payments thereon, the acquiring, owning and holding of the REMIC
Certificates, executing each Swap Agreement and making and receiving payments
thereunder in connection therewith; (ii) activities that are necessary, suitable
or convenient to accomplish the foregoing or are incidental thereto or connected
therewith, including the investment of moneys in accordance with this Agreement;
and (iii) such other activities as may be required in connection with
conservation of the Trust Estate and distributions to the Holders.
Section 2.04 APPOINTMENT OF THE GRANTOR TRUSTEE; DECLARATION OF TRUST.
The Depositor hereby appoints the Grantor Trustee as Grantor Trustee of
the Trust effective as of the Startup Day, to have all the rights, powers and
duties set forth herein. The Grantor Trustee hereby acknowledges and accepts
such appointment, represents and warrants its eligibility as of the Startup Day
to serve as Grantor Trustee pursuant to Section 10.06 hereof and declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the benefit of the Holders.
Section 2.05 EXPENSES OF THE TRUST.
The expenses of the Trust, including any fees payable to the Grantor
Trustee, shall be paid by Washington Mutual pursuant to a separate agreement
between Washington Mutual and the Grantor Trustee.
Section 2.06 OWNERSHIP OF THE TRUST.
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On the Startup Day the ownership interests in the Trust shall be
transferred as set forth in Section 4.02 hereof, such transfer to be evidenced
by sale of the Floating Rate Certificates as described therein. Thereafter,
transfer of any ownership interest shall be governed by Sections 5.04 hereof.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEPOSITOR
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents, warrants and covenants to the Grantor
Trustee and the Holders that as of the Startup Day:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and is
in good standing as a foreign corporation in each jurisdiction in which the
nature of its business, or the properties owned or leased by it make such
qualification necessary. The Depositor has all requisite corporate power and
authority to own and operate its properties, to carry out its business as
presently conducted and as proposed to be conducted and to enter into and
discharge its obligations under this Agreement.
(b) The execution and delivery of this Agreement by the Depositor
and its performance and compliance with the terms of this Agreement have been
duly authorized by all necessary corporate action on the part of the Depositor
and will not violate the Depositor's Certificate of Incorporation or Bylaws or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in a breach of, any material
contract, agreement or other instrument to which the Depositor is a party or by
which the Depositor is bound or violate any statute or any order, rule or
regulation of any court, governmental agency or body or other tribunal having
jurisdiction over the Depositor or any of its properties.
(c) Assuming due authorization, execution and delivery by the other
parties hereto, this Agreement each constitutes a valid, legal and binding
obligation of the Depositor, enforceable against it in accordance with the terms
hereof, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(d) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default would materially and adversely
affect the condition (financial or other) or operations of the Depositor or its
properties or the consequences of which would materially and adversely affect
its performance hereunder.
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(e) No litigation is pending with respect to which the Depositor has
received service of process or, to the best of the Depositor's knowledge,
threatened against the Depositor which litigation might have consequences that
would prohibit its entering into this Agreement or that would materially and
adversely affect the condition (financial or otherwise) or operations of the
Depositor or its properties or might have consequences that would materially and
adversely affect its performance hereunder.
It is understood and agreed that the representations and warranties set
forth in this Section 3.01 shall survive delivery of the REMIC Certificates to
the Grantor Trustee.
Section 3.02 CONVEYANCE OF THE REMIC CERTIFICATES.
On the Startup Day the Depositor, concurrently with the execution and
delivery hereof, hereby sells, transfers, assigns, delivers, sets over and
otherwise conveys, without recourse, to the Trust all of its respective right,
title and interest in and to the Trust Estate. It is the express intent of the
Depositor and the Grantor Trustee that the conveyance by the Depositor to the
Grantor Trustee of the Depositor's right, title and interest in and to the Trust
Estate be, and be construed as, an absolute sale and assignment by the Depositor
to the Grantor Trustee of the Trust Estate for the benefit of the
Certificateholders. Further, it is not intended that the conveyance be deemed to
be a pledge of the Trust Estate by the Depositor to the Grantor Trustee to
secure a debt or other obligation. However, in the event that the Trust Estate
is held to be property of the Depositor, or if for any reason this Agreement is
held or deemed to create a security interest in the Trust Estate, then it is
intended that (i) this Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code
and the Uniform Commercial Code of any other applicable jurisdiction; (ii) the
conveyances provided for herein shall be deemed to be a grant by the Depositor
to the Grantor Trustee on behalf of the Certificateholders, to secure payment in
full of the Secured Obligations (as defined below), of a security interest in
all of the Depositor's right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to the Trust
Estate including all accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and investment property and all cash and non-cash
proceeds of any of the foregoing; (iii) the possession or control by the Grantor
Trustee or any other agent of the Grantor Trustee of the Trust Estate or such
other items of property as constitute instruments, money, documents, advices of
credit, letters of credit, goods, certificated securities or chattel paper shall
be deemed to be a possession or control by the secured party, or possession or
control by a purchaser, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-305 or 9-115 thereof); and (iv) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for, the Grantor Trustee, as applicable, for the purpose of perfecting
such security interest under applicable law. "Secured Obligations" means (i) the
rights of each Certificateholder to be paid any amount owed to it under this
Agreement, (ii) all other obligations of the Depositor under this Agreement and
(iii) the right of the Certificateholders to the Trust Estate.
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The Depositor, and, at the Depositor's direction, the Grantor Trustee,
shall, to the extent consistent with this Agreement, take such reasonable
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Trust Estate and the other property described
above, such security interest would be deemed to be a perfected security
interest of first priority as applicable. The Depositor shall file, at its
expense, all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in any
jurisdiction to perfect the Grantor Trustee's security interest in the Trust
Estate, including without limitation (i) continuation statements, (ii) such
other statements as may be occasioned by any transfer of any interest of the
Depositor in the Trust Estate; and (iii) filings necessary as a result in any
change in the Uniform Commercial Code.
Section 3.03 ACCEPTANCE BY TRUSTEE
The Grantor Trustee hereby acknowledges receipt of each of the REMIC
Certificates and each Swap Agreement and declares that it will hold such
documents and any amendments, replacement or supplements thereto, as well as any
other assets included in the definitions of Trust Estate and delivered to the
Trustee, as Trustee in trust upon and subject to the conditions set forth herein
for the benefit of the Holders.
ARTICLE IV
ISSUANCE AND SALE OF CERTIFICATES
Section 4.01 ISSUANCE OF CERTIFICATES.
On the Startup Day the Grantor Trustee, pursuant to the written request of
the Depositor executed by an officer of the Depositor, shall execute and cause
the Floating Rate Certificates to be authenticated and delivered to or upon the
order of the Depositor in authorized denominations.
Section 4.02 SALE OF CERTIFICATES.
At 11 a.m. New York City time on the Startup Day (the "Closing"), at the
offices of Orrick Herrington & Sutcliffe LLP, 666 Fifth Avenue, New York, New
York, the Depositor will sell and convey the REMIC Certificates to the Grantor
Trustee, and the Grantor Trustee will deliver to the Depositor each Class of the
Floating Rate Certificates each with a Percentage Interest equal to 100%,
registered in the name of Cede & Co., or in such other names as the Depositor
shall direct.
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ARTICLE V
FLOATING RATE CERTIFICATES AND TRANSFER OF INTERESTS
Section 5.01 TERMS.
(a) The Floating Rate Certificates are pass-through securities
having the rights described therein and herein. Notwithstanding references
herein or therein with respect to the Floating Rate Certificates to "principal"
and "interest", no debt of any Person is represented thereby, nor are the
Floating Rate Certificates guaranteed by any Person. Each Class of the Floating
Rate Certificates is payable solely from payments received on or with respect to
the Class 4 A-2 REMIC Certificates and the related Swap Agreement, in the case
of the Class 4 A-2 Floating Rate Certificates, the Class 5 A-3 REMIC
Certificates and the related Swap Agreement, in the case of the Class 5 A-3
Floating Rate Certificates, and the Class 6 A-3 REMIC Certificates and the
related Swap Agreement, in the case of the Class 6 A-3 Floating Rate
Certificates, moneys in the Grantor Trust Account, and the proceeds of property
held as a part of the Trust Estate. Each Floating Rate Certificate entitles the
Holder thereof to receive monthly on each Distribution Date, in order of
priority of distributions with respect to such Floating Rate Certificates as set
forth in Section 7.03, a specified portion of such payments, pro rata in
accordance with such Holder's Percentage Interest in such Class.
(b) The Grantor Trustee will notify each Holder of the final
distribution on such Holder's Certificate, and such final payment shall be made
upon presentation and surrender of such Certificate.
Section 5.02 FORMS.
The Floating Rate Certificates shall be in substantially the form set
forth in Exhibit A hereof with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the Depositor's judgment be necessary, appropriate or
convenient to comply, or facilitate compliance, with applicable laws, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
applicable securities laws.
Section 5.03 EXECUTION, AUTHENTICATION AND DELIVERY.
Each Floating Rate Certificate shall be executed and authenticated by the
manual or facsimile signature of one of the Grantor Trustee's Authorized
Officers. Upon proper authentication by the Grantor Trustee, the Certificates
shall bind the Trust.
The initial Floating Rate Certificates shall be dated as of the Startup
Day and delivered at the Closing to the parties specified in Section 4.02
hereof. Subsequently issued Certificates will be dated as of the issuance of the
Certificate.
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No Certificate shall be valid until executed and authenticated as set
forth above.
Section 5.04 REGISTRATION AND TRANSFER OF CERTIFICATES.
(a) The Grantor Trustee shall cause to be kept a register (the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Grantor Trustee shall provide for the registration of Floating
Rate Certificates and the registration of transfer of Floating Rate
Certificates. The Grantor Trustee is hereby appointed Registrar for the purpose
of registering Floating Rate Certificates and transfers of Floating Rate
Certificates as herein provided.
(b) At the option of any Holder, Floating Rate Certificates of any
Class owned by such Holder may be transferred or exchanged for other Floating
Rate Certificates authorized of like Class and tenor and a like aggregate
original principal amount or Percentage Interest and bearing numbers not
contemporaneously outstanding, upon surrender of the Floating Rate Certificates
to be transferred or exchanged at the office designated as the location of the
Register. Whenever any Floating Rate Certificate is so surrendered for exchange,
the Grantor Trustee shall execute, authenticate and deliver the Floating Rate
Certificate or Certificates which the Holder making the exchange is entitled to
receive. Any transfer of a Floating Rate Certificate is subject to the transfer
restrictions set forth in Section 5.04(d).
(c) All Floating Rate Certificates issued upon any registration of
transfer or exchange of Floating Rate Certificates shall be valid evidence of
the same ownership interests in the Trust and entitled to the same benefits
under this Agreement as the Floating Rate Certificates surrendered upon such
registration of transfer or exchange.
(d) Every Floating Rate Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Registrar duly
executed by the Holder thereof or his attorney duly authorized in writing. No
transfer of a Floating Rate Certificate shall be made to any employee benefit or
other plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Code, to a trustee or other
person acting on behalf of any such plan, or to any other person using "plan
assets" to effect such acquisition (each, a "Plan Investor"), unless the
prospective transferee of a Certificateholder desiring to transfer its Floating
Rate Certificate provides the Grantor Trustee with either (A) an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Grantor
Trustee and the Depositor to the effect that the purchase or holding of such
Floating Rate Certificate is permissible under applicable law, will not
constitute or result in any non-exempt prohibited transaction under Section 406
of ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), and will not subject the Grantor Trustee, the Depositor
or the Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement or the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be an expense of the Grantor Trustee, the Depositor
or the Servicer; or (B) the prospective transferee shall be required to provide
the Grantor Trustee and the Depositor with a certification, which the Grantor
Trustee and the Depositor may rely upon without further inquiry or
investigation, or such other certifications as
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the Grantor Trustee or the Depositor may deem desirable or necessary in order to
establish that such transferee or the Person in whose name such registration is
requested either (a) is not a Plan Investor or (b) one or more of the following
class exemptions are applicable to the holding by the prospective transferee of
the Floating Rate Certificates by or with Plan Assets of a Plan: (i) Prohibited
Transaction Class Exemption ("PTCE") 96-23, (ii) PTCE 95-60, (iii) PTCE 91-38,
(iv) PTCE 90-1; or (v) PTCE 84-14. Notwithstanding the foregoing, an Opinion of
Counsel or certification will not be required with respect to the transfer of
any Floating Rate Certificate for so long as such Floating Rate Certificate is
held in the name of a Depository or its nominee (each such Floating Rate
Certificate, a "Book-Entry Certificate"). Any transferee of a Book-Entry
Certificate will be deemed to have represented by virtue of its purchase or
holding of such Book-Entry Certificate (or interest therein) that either (a)
such transferee is not a Plan Investor or (b) one or more of the following class
exemptions are applicable to the holding by the prospective transferee of the
Floating Rate Certificates by or with Plan Assets of a Plan: (i) Prohibited
Transaction Class Exemption ("PTCE") 96-23, (ii) PTCE 95-60, (iii) PTCE 91-38,
(iv) PTCE 90-1; or (v) PTCE 84-14. If any Book-Entry Certificate (or any
interest therein) is acquired or held in violation of the provisions of clause
(b) above, then the last preceding transferee that either (i) is not a Plan
Investor or (ii) whose holding is exempt as provided in clause (b) above shall
be restored, to the extent permitted by law, to all rights and obligations as
Certificateholder thereof retroactive to the date of such transfer of such
Book-Entry Certificate. Any purported Certificateholder whose acquisition or
holding of any Book-Entry Certificate (or interest therein) was effected in
violation of the restrictions in this Section 5.04(d) shall indemnify and hold
harmless the Depositor, the Grantor Trustee, the Servicer, and the Trust from
and against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding. The Grantor Trustee shall be
under no liability to any Person for making any payments due on any Certificate
to such preceding transferee that is not a Plan Investor or whose holding is
exempt as provided in clause (b) above.
(e) No service charge shall be made to a Holder for any registration
of transfer or exchange of Floating Rate Certificates, but the Registrar or
Grantor Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Floating Rate Certificates; any other
expenses in connection with such transfer or exchange shall be an expense of the
Trust.
(f) It is intended that the Floating Rate Certificates be registered
so as to participate in a global book entry system with the Depository, as set
forth herein. The Floating Rate Certificates shall, except as otherwise provided
in Subsection (g), be initially issued in the form of a single fully registered
Certificate of such Class. Upon initial issuance, the ownership of each such
Certificate shall be registered in the Register in the name of Cede & Co., or
any successor thereto, as nominee for the Depository.
The Floating Rate Certificates will be in fully-registered form only in
minimum denominations of $25,000 Certificate Principal Balance and integral
multiples of $1 in excess thereof.
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With respect to the Certificates registered in the Register in the name of
Cede & Co., as nominee of the Depository, the Depositor, the Servicer and the
Grantor Trustee shall have no responsibility or obligation to Direct or Indirect
Participants or beneficial owners for which the Depository holds Floating Rate
Certificates from time to time as a Depository. Without limiting the immediately
preceding sentence, the Depositor, the Servicer and the Grantor Trustee shall
have no responsibility or obligation with respect to (i) the accuracy of the
records of the Depository, Cede & Co., or any Direct or Indirect Participant
with respect to the ownership interest in the Certificates, (ii) the delivery to
any Direct or Indirect Participant or any other Person, other than a registered
Holder of a Certificate as shown in the Register, of any notice with respect to
the Floating Rate Certificates or (iii) the payment to any Direct or Indirect
Participant or any other Person, other than a registered Holder of a Certificate
as shown in the Register, of any amount with respect to any distribution of
principal or interest on the Floating Rate Certificates. No Person other than a
registered Holder of a Certificate as shown in the Register shall receive a
certificate evidencing such Certificate.
Upon delivery by the Depository to the Grantor Trustee of written notice
to the effect that the Depository has determined to substitute a new nominee in
place of Cede & Co., and subject to the provisions hereof with respect to the
payment of interest by the mailing of checks or drafts to the registered Holders
of Floating Rate Certificates appearing as registered Holders in the
registration books maintained by the Grantor Trustee at the close of business on
a Record Date, the name "Cede & Co." in this Agreement shall refer to such new
nominee of the Depository.
(g) In the event that (i) the Depository or the Depositor advises
the Grantor Trustee in writing that the Depository is no longer willing or able
to discharge properly its responsibilities as nominee and depository with
respect to the Floating Rate Certificates and the Depositor or the Grantor
Trustee is unable to locate a qualified successor or (ii) the Depositor at its
sole option elects to terminate the book-entry system through the Depository,
the Floating Rate Certificates shall no longer be restricted to being registered
in the Register in the name of Cede & Co. (or a successor nominee) as nominee of
the Depository. At that time, the Depositor may determine that the Floating Rate
Certificates shall be registered in the name of and deposited with a successor
depository operating a global book-entry system, as may be acceptable to the
Depositor and at the Depositor's expense, or such depository's agent or designee
but, if the Depositor does not select such alternative global book-entry system,
then the Floating Rate Certificates may be registered in whatever name or names
registered Holders of the Floating Rate Certificates transferring the Floating
Rate Certificates shall designate, in accordance with the provisions hereof.
(h) Notwithstanding any other provision of this Agreement to the
contrary, so long as any of the Floating Rate Certificates is registered in the
name of Cede & Co., as nominee of the Depository, all distributions of principal
or interest on such Floating Rate Certificates and all notices with respect to
such Floating Rate Certificates shall be made and given, respectively, to the
Depository.
Section 5.05 MUTILATED, DESTROYED, LOST OR STOLEN FLOATING RATE
CERTIFICATES.
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If (i) any mutilated Floating Rate Certificate is surrendered to the
Grantor Trustee, or the Grantor Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Floating Rate Certificate, and (ii) in the
case of any mutilated Floating Rate Certificate, such mutilated Floating Rate
Certificate shall first be surrendered to the Grantor Trustee, and in the case
of any destroyed, lost or stolen Floating Rate Certificate, there shall be first
delivered to the Grantor Trustee such security or indemnity as may be reasonably
required by it to hold the Grantor Trustee harmless, then, in the absence of
notice to the Grantor Trustee or the Registrar that such Floating Rate
Certificate has been acquired by a bona fide purchaser, the Depositor shall
execute and the Grantor Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Floating Rate
Certificate, a new Floating Rate Certificate of like Class, tenor and aggregate
principal amount, bearing a number not contemporaneously outstanding.
Upon the issuance of any new Floating Rate Certificate under this Section,
the Registrar or Grantor Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto; any other expenses in connection with such issuance shall be an expense
of the Trust.
Every new Floating Rate Certificate issued pursuant to this Section in
exchange for or in lieu of any mutilated, destroyed, lost or stolen Floating
Rate Certificate shall constitute evidence of a substitute interest in the
Trust, and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Floating Rate Certificates of the same
Class duly issued hereunder and such mutilated, destroyed, lost or stolen
Floating Rate Certificate shall not be valid for any purpose.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Floating Rate Certificates.
Section 5.06 PERSONS DEEMED OWNERS.
The Grantor Trustee and any agent of the Grantor Trustee may treat the
Person in whose name any Floating Rate Certificate is registered as the owner of
such Floating Rate Certificate for the purpose of receiving distributions with
respect to such Floating Rate Certificate and for all other purposes whatsoever
and neither the Grantor Trustee, the Servicer nor any agent of the Grantor
Trustee or the Servicer shall be affected by notice to the contrary.
Section 5.07 CANCELLATION.
All Floating Rate Certificates surrendered for registration of transfer or
exchange shall, if surrendered to any Person other than the Grantor Trustee, be
delivered to the Grantor Trustee and shall be promptly canceled by it. No
Floating Rate Certificate shall be authenticated in lieu of or in exchange for
any Floating Rate Certificate canceled as provided in this Section, except as
expressly permitted by this Agreement. All canceled Floating Rate Certificates
may be held by the Grantor Trustee in accordance with its standard retention
policy.
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Section 5.08 ASSIGNMENT OF RIGHTS.
A Holder may pledge, encumber, hypothecate or assign all or any part of
its right to receive distributions hereunder, but such pledge, encumbrance,
hypothecation or assignment shall not constitute a transfer of an ownership
interest sufficient to render the transferee a Holder of the Trust without
compliance with the provisions of Section 5.04 hereof.
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ARTICLE VI
COVENANTS
Section 6.01 DISTRIBUTIONS.
On each Distribution Date, the Grantor Trustee will withdraw amounts from
the Grantor Trust Account and make the distributions with respect to the
Floating Rate Certificates and each Swap Agreement in accordance with the terms
of the Floating Rate Cer
