Exhibit 4.1
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XXXXX ASSET SECURITIZATION, INC.,
as Depositor
MAIA MORTGAGE FINANCE STATUTORY TRUST
as Seller
[_],
as Servicer
[_],
as Securities Administrator and as Master Servicer
and
[_],
as Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of ___________, 200_
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Luminent Mortgage Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INTERPRETATION................................. 6
SECTION 1.1 Definitions........................................... 6
SECTION 1.2 Calculations With Respect to the Mortgage Loans....... 36
SECTION 1.3 Calculations With Respect to Accrued Interest......... 36
SECTION 1.4 Rules of Construction................................. 37
ARTICLE II CONVEYANCE OF MORTGAGE LOANS.................................. 37
SECTION 2.1 Conveyance of Mortgage Loans to the Depositor......... 37
SECTION 2.2 Conveyance of Mortgage Loans to the Issuing Entity.... 38
SECTION 2.3 Assignment of Mortgage Loans.......................... 39
SECTION 2.4 Books and Records..................................... 39
SECTION 2.5 Review of Documentation............................... 40
SECTION 2.6 Execution and Delivery of Certificates................ 41
SECTION 2.7 Representations and Warranties with Respect to the
Mortgage Loans........................................ 41
SECTION 2.8 Optional Repurchase................................... 42
SECTION 2.9 Repurchase of Mortgage Loans.......................... 42
SECTION 2.10 Substitution of Mortgage Loans........................ 43
SECTION 2.11 Granting Clause....................................... 44
SECTION 2.12 Purpose............................................... 46
ARTICLE III REPRESENTATIONS AND WARRANTIES............................... 47
SECTION 3.1 Representations and Warranties of the Seller.......... 47
SECTION 3.2 Representations and Warranties of the Depositor....... 49
SECTION 3.3 Representations and Warranties of the Servicer........ 50
SECTION 3.4 Representations and Warranties of the Master
Servicer and Securities Administrator................. 52
ARTICLE IV SERVICING OF THE MORTGAGE LOANS............................... 54
SECTION 4.1 General............................................... 54
SECTION 4.2 Use of Subservicers and Subcontractors................ 56
SECTION 4.3 Collection of Mortgage Loan Payments.................. 57
SECTION 4.4 Realization Upon Defaulted Mortgage Loans............. 57
SECTION 4.5 Establishment of and Deposits to Custodial Account.... 58
SECTION 4.6 Permitted Withdrawals From Custodial Account.......... 60
SECTION 4.7 Establishment of and Deposits to Escrow Account....... 61
SECTION 4.8 Permitted Withdrawals From Escrow Account............. 61
SECTION 4.9 Payment of Taxes, Insurance and Other Charges......... 62
SECTION 4.10 Transfer of Custodial Account or Escrow Account....... 63
SECTION 4.11 Mortgaged Property Insurance.......................... 63
SECTION 4.12 Blanket Mortgage Hazard Insurance..................... 64
SECTION 4.13 Fidelity Bond and Errors and Omissions Insurance...... 65
SECTION 4.14 Restoration of Mortgaged Property..................... 65
SECTION 4.15 Title, Management and Disposition of REO Property..... 66
SECTION 4.16 Mortgage Loan Reports; Real Estate Owned Reports...... 68
SECTION 4.17 Adjustable Rate Mortgage Loans........................ 68
SECTION 4.18 Prepayment Premiums................................... 69
SECTION 4.19 Credit Reporting; Gramm Xxxxx Xxxxxx Act.............. 69
SECTION 4.20 Transfers of Mortgaged Property....................... 70
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SECTION 4.21 Satisfaction and Release of Mortgage Files............ 71
SECTION 4.22 Superior Liens........................................ 72
SECTION 4.23 Servicer Compensation................................. 73
SECTION 4.24 Servicer Remittances.................................. 73
ARTICLE V REPORTS........................................................ 74
SECTION 5.1 Assessment of Compliance and Attestation Reports...... 74
SECTION 5.2 Annual Compliance Statement........................... 74
SECTION 5.3 Back-Up SOX Certification............................. 75
SECTION 5.4 Commission Reporting.................................. 75
SECTION 5.5 Distribution Date Report.............................. 78
SECTION 5.6 Subservicers and Subcontractors....................... 80
SECTION 5.7 Additional Information................................ 81
SECTION 5.8 Intention of the Parties and Interpretation........... 81
SECTION 5.9 Indemnification....................................... 82
ARTICLE VI THE SERVICER.................................................. 82
SECTION 6.1 Limitation on Resignation and Assignment by Servicer.. 82
SECTION 6.2 Examination Rights; Additional Information............ 82
SECTION 6.3 Servicer as Bailee.................................... 83
SECTION 6.4 Termination of the Servicer without Cause............. 84
SECTION 6.5 Servicer Events of Default............................ 84
SECTION 6.6 Waiver of Defaults.................................... 86
SECTION 6.7 Servicer Covenants.................................... 86
SECTION 6.8 Indemnification....................................... 87
SECTION 6.9 Opinion............................................... 88
ARTICLE VII MASTER SERVICER.............................................. 88
SECTION 7.1 Duties of the Master Servicer......................... 88
SECTION 7.2 Assignment or Delegation of Duties by the Master
Servicer.............................................. 89
SECTION 7.3 Fidelity Bond and Errors and Omission Policy.......... 89
SECTION 7.4 Compensation to the Master Servicer................... 90
SECTION 7.5 Merger or Consolidation............................... 90
SECTION 7.6 Examination Rights.................................... 90
SECTION 7.7 Resignation of Master Servicer........................ 91
SECTION 7.8 Master Servicer to Act as Servicer; Appointment of
Successor............................................. 91
SECTION 7.9 Master Servicer Events of Default; Appointment of
Successor............................................. 93
SECTION 7.10 Waiver of Defaults.................................... 96
SECTION 7.11 Notification of Master Servicer Default............... 97
SECTION 7.12 Limitation on Liability of the Master Servicer........ 97
SECTION 7.13 Master Servicer Covenants............................. 97
SECTION 7.14 Assignment or Delegation of Duties by Master
Servicer.............................................. 98
SECTION 7.15 Indemnification....................................... 98
SECTION 7.16 Opinion............................................... 99
ARTICLE VIII THE SECURITIES ADMINISTRATOR................................ 99
SECTION 8.1 Duties of the Securities Administrator................ 99
SECTION 8.2 Records............................................... 100
SECTION 8.3 Compensation.......................................... 100
SECTION 8.4 No Joint Venture...................................... 100
SECTION 8.5 Other Activities of Securities Administrator and the
Depositor............................................. 100
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SECTION 8.6 Certain Matters Affecting the Securities
Administrator......................................... 100
SECTION 8.7 Securities Administrator Not Liable for Certificates
or Mortgage Loans..................................... 102
SECTION 8.8 Securities Administrator May Own Certificates......... 102
SECTION 8.9 Eligibility Requirements for the Securities
Administrator......................................... 102
SECTION 8.10 Resignation and Removal of the Securities
Administrator......................................... 103
SECTION 8.11 Successor Securities Administrator.................... 104
SECTION 8.12 Merger or Consolidation of Securities Administrator... 104
SECTION 8.13 Limitation of Liability............................... 104
SECTION 8.14 Opinion............................................... 105
ARTICLE IX CONCERNING THE TRUSTEE........................................ 105
SECTION 9.1 Duties of Trustee..................................... 105
SECTION 9.2 Rights of Trustee..................................... 107
SECTION 9.3 Trustee Not Liable for Certificates................... 107
SECTION 9.4 Trustee May Own Certificates.......................... 108
SECTION 9.5 Eligibility Requirements for Trustee.................. 108
SECTION 9.6 Resignation and Removal of Trustee.................... 108
SECTION 9.7 Successor Trustee..................................... 109
SECTION 9.8 Merger or Consolidation of Trustee.................... 110
SECTION 9.9 Appointment of Co-Trustee or Separate Trustee......... 110
SECTION 9.10 Indemnification of Trustee............................ 112
SECTION 9.11 Fees and Expenses of Trustee.......................... 112
ARTICLE X TRUST ADMINISTRATION........................................... 112
SECTION 10.1 Distribution Account.................................. 112
SECTION 10.2 Reserve Account....................................... 115
SECTION 10.3 Calculation of LIBOR.................................. 116
SECTION 10.4 Cap Agreement......................................... 116
SECTION 10.5 Priorities of Distribution............................ 116
SECTION 10.6 Allocation of Realized Losses......................... 118
SECTION 10.7 REMIC Distributions................................... 119
SECTION 10.8 Indemnification....................................... 121
ARTICLE XI THE CERTIFICATES.............................................. 122
SECTION 11.1 The Certificates...................................... 122
SECTION 11.2 Certificate Register; Registration of Transfer and
Exchange of Certificates.............................. 123
SECTION 11.3 Mutilated, Destroyed, Lost or Stolen Certificates..... 128
SECTION 11.4 Persons Deemed Owners................................. 128
SECTION 11.5 Access to List of Certificateholders' Names and
Addresses............................................. 128
SECTION 11.6 Maintenance of Office or Agency....................... 129
SECTION 11.7 Limitation on Rights of Holders....................... 129
SECTION 11.8 Acts of Holders of Certificates....................... 130
ARTICLE XII THE DEPOSITOR................................................ 131
SECTION 12.1 Liabilities of the Depositor.......................... 131
SECTION 12.2 Merger or Consolidation of the Depositor.............. 131
SECTION 12.3 Limitation on Liability of the Depositor and Others... 131
ARTICLE XIII TERMINATION................................................. 132
SECTION 13.1 Termination upon Liquidation or Purchase of all
Mortgage Loans........................................ 132
SECTION 13.2 Final Distribution on the Certificates................ 133
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SECTION 13.3 Additional Termination Requirements................... 133
ARTICLE XIV REMIC ADMINISTRATION......................................... 134
SECTION 14.1 REMIC Administration.................................. 134
SECTION 14.2 Prohibited Transactions and Activities................ 137
SECTION 14.3 Indemnification with Respect to Prohibited
Transactions or Loss of REMIC Status.................. 137
ARTICLE XV AMENDMENT..................................................... 138
SECTION 15.1 Without Consent of the Certificateholders............. 138
SECTION 15.2 With Consent.......................................... 138
SECTION 15.3 Procedure and Notice.................................. 139
ARTICLE XVI MISCELLANEOUS PROVISIONS..................................... 139
SECTION 16.1 Binding Nature of Agreement; Assignment............... 139
SECTION 16.2 Entire Agreement...................................... 139
SECTION 16.3 Counterparts.......................................... 139
SECTION 16.4 Provision of Information.............................. 140
SECTION 16.5 Governing Law......................................... 140
SECTION 16.6 Notices............................................... 140
SECTION 16.7 Severability of Provisions............................ 142
SECTION 16.8 No Waivers............................................ 142
SECTION 16.9 Headings Not to Affect Interpretation................. 142
SECTION 16.10 No Petitions.......................................... 142
SECTION 16.11 Certificates Fully Paid and Nonassessable............. 143
SECTION 16.12 Protection of Assets.................................. 143
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EXHIBITS
Exhibit A Information Fields for ML Schedule
Exhibit B Contents of each Mortgage File
Exhibit C Form of Request for Release
Exhibit D Form of Realized Gains and Losses
Exhibit E Standard Layout for Monthly Defaulted Loan Report
Exhibit F Credit Reporting Procedure
Exhibit 1122 Servicing Criteria
Exhibit SOX Sarbanes Oxley Certificate
Exhibit G-1 Form of Class A Certificate
Exhibit G-2 Form of Class M Certificate
Exhibit G-3 Form of Class C Certificate
Exhibit G-4 Form of Class P Certificate
Exhibit G-5 Form of Class R Certificate
Exhibit G-6 Form of Class RX Certificate
Exhibit H Form of Transferor Certificate
Exhibit I-1 Form of Investment Letter (Non-Rule 144A)
Exhibit I-2 Form of Investment Letter (Rule 144A)
Exhibit J Form of Benefit Plan Affidavit
Exhibit K Form of Affidavit Regarding Transfer of Residual Certificate
SCHEDULES
Schedule A Mortgage Loan Schedule
Schedule B Representations and Warranties in respect of the Mortgage Loans
Schedule C LIBOR Calculation
v
This POOLING AND SERVICING AGREEMENT, dated as of ____________, 200_, is by
and among XXXXX ASSET SECURITIZATION, INC., a Delaware corporation, as depositor
(the "DEPOSITOR"), MAIA MORTGAGE FINANCE STATUTORY TRUST, a Maryland business
trust as seller (the "SELLER"), [ - ], a [national banking association], as
servicer (the "SERVICER"), [ - ], a [national banking association], as
securities administrator (the "SECURITIES ADMINISTRATOR") and as master servicer
(the "MASTER SERVICER"), and [ - ], a [national banking association], as trustee
(the "TRUSTEE").
PRELIMINARY STATEMENT
WHEREAS, the Seller seeks to sell to the Depositor and the Depositor seeks
to purchase from the Seller all of the right, title and interest of the Seller
in certain adjustable-rate first [and second] lien mortgage loans and fixed-rate
first [and second] lien mortgage loans identified in Schedule A hereto on a
servicing-released basis pursuant to this Agreement;
WHEREAS, the Seller will make representations and warranties as set forth
herein with respect to the Mortgage Loans and will assign to the Depositor
certain representations and warranties that the Seller has received with respect
to such Mortgage Loans;
WHEREAS, at the Closing Date the Depositor will be the owner of the
Mortgage Loans and the other property being conveyed and assigned by it to the
Issuing Entity hereunder for inclusion in the Trust Fund on the Closing Date;
WHEREAS, on the Closing Date, the Depositor will transfer to the Issuing
Entity the Mortgage Loans and the other property constituting the Trust Fund,
and the Issuing Entity will issue the Certificates evidencing the entire
interest in the Issuing Entity;
WHEREAS, the Depositor will receive the Certificates in consideration for
the Mortgage Loans and other property being conveyed and assigned by it to the
Issuing Entity and will sell the Certificates to various purchasers.
WHEREAS, the Servicer is willing to service the Mortgage Loans for the
benefit of the Issuing Entity;
WHEREAS, the Master Servicer is willing to master service the Mortgage
Loans for the benefit of the Issuing Entity;
WHEREAS, the Securities Administrator is willing to provide certain
services and reports with respect to the Certificates; and
WHEREAS, the descriptions of REMIC I, REMIC II, REMIC III and REMIC IV that
follow are part of the Preliminary Statement.
1
REMIC I
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement (but exclusive of the Reserve Account,
the Non-Mortgagor Prepayment Premium Payment Amount and the Cap Agreement) as a
real estate mortgage investment conduit (a "REMIC") for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I."
The Class R-I Interest will represent the sole class of "residual interests" in
REMIC I for purposes of the REMIC Provisions. The following table irrevocably
sets forth the designation, the Uncertificated REMIC I Pass-Through Rate, the
initial Uncertificated Principal Balance, and solely for purposes of satisfying
Treasury Regulations Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each of the Uncertificated REMIC I Regular Interests. None of the
Uncertificated REMIC I Regular Interests will be certificated.
Uncertificated REMIC I Initial Latest Possible
Designation Pass-Through Rate Uncertificated Balance Maturity Date(1)
----------- ---------------------- ---------------------- ----------------
LTAA Variable(2) $ [ - ]
LTA Variable(2) $ [ - ]
LTM1 Variable(2) $ [ - ]
LTM2 Variable(2) $ [ - ]
LTZZ Variable(2) $ [ - ]
LTP Variable(2) $100.00 [ - ]
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC I
Pass-Through Rate" herein.
2
REMIC II
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Uncertificated REMIC I Regular
Interests as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC II." The Class R-II Interest will
represent the sole class of "residual interests" in REMIC II for purposes of the
REMIC Provisions. The following table irrevocably sets forth the designation,
the Pass-Through Rate, the initial Certificate Principal Balance or
Uncertificated Principal Balance, as the case may be and solely for purposes of
satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the "latest
possible maturity date" for each of the Classes of Certificates and
Uncertificated REMIC II Regular Interests. The Class A Certificates and Class M
Certificates will be certificated. The Class C Interest and the Class P Interest
will not be certificated.
Initial Certificate
Principal
or
Uncertificated Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
--------------------- ----------------- ------------------------ ----------------
Class A Certificate Variable(2) $ [ - ]
Class M-1 Certificate Variable(2) $ [ - ]
Class M-2 Certificate Variable(2) $ [ - ]
Class C Interest Variable(3) $ [ - ]
Class P Interest N/A(4) $100.00 [ - ]
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each Class of Certificates that
represents one or more of the "regular interests" in REMIC II and each
Uncertificated REMIC II Regular Interest.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
(3) The Class C Interest (i ) will have an initial Uncertificated Principal
Balance equal to $______ and (ii) will bear interest at its variable
Pass-Through Rate on the Notional Amount of the Class C Interest
outstanding from time to time. The Class C Interest will not accrue
interest on its Uncertificated Principal Balance.
(4) The Class P Interest will not accrue interest.
3
REMIC III
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class C Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III." The Class RX-III Interest represents the sole class
of "residual interests" in REMIC III for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Certificate Principal Balance for the Class C
Certificates that represents a "regular interest" in REMIC III created
hereunder:
Initial Certificate Latest Possible
Class Designation Pass-Through Rate Principal Balance Maturity Date(1)
------------------- ----------------- ------------------- ----------------
Class C Certificate Variable(2) $ [ - ]
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for the Class C Certificates.
(2) The Class C Certificates will receive 100% of amounts received in respect
of the Class C Interest.
4
REMIC IV
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class P Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC IV." The Class RX-IV Interest represents the sole class of
"residual interests" in REMIC IV for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and initial Certificate Principal Balance for the Class P
Certificates that represents a "regular interest" in REMIC IV created hereunder:
Initial Certificate Latest Possible
Class Designation Pass-Through Rate Principal Balance Maturity Date(1)
------------------- ----------------- ------------------- ----------------
Class P Certificate N/A(2) $100.00 [ - ]
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for the Class P Certificates.
(2) The Class P Certificates will receive 100% of amounts received in respect
of the Class P Interest.
NOW THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
5
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Section 1.1.
ACCEPTED MASTER SERVICING PRACTICES: With respect to any Mortgage Loan,
those customary mortgage loan master servicing practices of prudent mortgage
servicing institutions that master service mortgage loans of the same type and
quality as such Mortgage Loan in the jurisdiction where the related Mortgaged
Property is located, to the extent applicable to the Master Servicer, and in
accordance with the applicable state, local and federal laws, rules and
regulations.
ACCEPTED SERVICING PRACTICES: The servicing and administration of the
Mortgage Loans for which the Servicer is responsible hereunder:
(a) in the same manner in which, and with the same care, skill, prudence
and diligence with which, the Servicer generally services and administers
similar mortgage loans with similar mortgagors (i) for other third parties,
giving due consideration to customary and usual standards of practice of prudent
institutional residential mortgage lenders servicing their own loans, or (ii)
held in the Servicer's own portfolio, whichever standard is higher;
(b) with a view to the maximization of the recovery on such Mortgage Loans
on a net present value basis and the best interests of the Issuing Entity or any
Person to which the Mortgage Loans may be transferred by the Issuing Entity;
(c) without regard to (i) any relationship that the Servicer or any
affiliate thereof may have with the related Mortgagor or any other party to the
transactions, (ii) the right of the Servicer to receive compensation or other
fees for its services rendered pursuant to this Agreement, (iii) the obligations
of the Servicer to make Monthly Advances and Servicing Advances, (iv) the
ownership, servicing or management by the Servicer or any affiliate thereof for
others of any other mortgage loans or mortgaged properties, and (v) any debt the
Servicer or any of its affiliates has extended to any mortgagor; and
(d) in accordance with the applicable state, local and federal laws, rules
and regulations.
ACCOUNTANT: A person engaged in the practice of accounting who (except when
this Agreement provides that an Accountant must be Independent) may be employed
by or affiliated with a party hereto or an Affiliate thereof.
ADJUSTABLE RATE MORTGAGE LOAN: A Mortgage Loan that contains a provision
pursuant to which the Mortgage Rate is adjusted periodically.
6
ADJUSTED NET MORTGAGE RATE: With respect to each Mortgage Loan, a rate
equal to the per annum Mortgage Rate less the sum of the (i) Servicing Fee Rate
and (ii) the Master Servicing Fee Rate and (iii) the Lender Paid Mortgage
Insurance Rate.
ADJUSTMENT DATE: As to each Adjustable Rate Mortgage Loan, the date on
which the Mortgage Rate is adjusted in accordance with the terms of the related
Mortgage Note and Mortgage.
ADVANCE: Any Monthly Advance or Servicing Advance.
ADVERSE REMIC EVENT: As defined in Section 14.1(f).
AFFILIATE: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
AGGREGATE OVERCOLLATERALIZATION RELEASE AMOUNT: With respect to any
Distribution Date, the lesser of (i) the Principal Proceeds and (ii) the
Overcollateralization Release Amount.
AGREEMENT: This Pooling and Servicing Agreement, including all exhibits and
schedules hereto, and all amendments or supplements hereto.
APPLIED LOSS AMOUNT: As defined in Section 10.6(a).
APPRAISED VALUE: With respect to any Mortgage Loan, the lesser of (a) the
value set forth on the appraisal made in connection with the origination of the
related Mortgage Loan as the value of the related Mortgaged Property, or (b) the
amount paid by the Mortgagor for the Mortgaged Property, provided, however, that
in the case of a refinanced Mortgage Loan or a Mortgage Loan that was not
originated in connection with the borrower's purchase of the Mortgaged Property,
such value shall be based solely on the appraisal made in connection with the
origination of such Mortgage Loan.
ASSESSMENT OF COMPLIANCE: As defined in Section 5.1.
ASSIGNMENT OF MORTGAGE: An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
assignment of the Mortgage to the Trustee, which assignment, notice of transfer
or equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties in the same
jurisdiction, if permitted by law.
ATTESTATION REPORT: As defined in Section 5.1.
AVAILABLE FUNDS: For each Distribution Date, the sum of the Principal
Proceeds and the Interest Proceeds for such Distribution Date.
7
BACKUP SOX CERTIFICATION: As defined in Section 5.3.
BANKRUPTCY CODE: The United States Bankruptcy Code of 1986, as amended, as
codified in 11 U.S.C. Sections 101-1330.
BENEFIT PLAN AFFIDAVIT: An affidavit in substantially the form attached
hereto as Exhibit J.
BOOK-ENTRY CERTIFICATES: Each Class of Certificates other than the Class C,
P, R and RX Certificates.
BUSINESS DAY: Any day other than (a) a Saturday or a Sunday or (b) a day on
which banking institutions in the states of [ - ] and [ - ] are authorized or
obligated by law or executive order to be closed.
CAP AGREEMENT: The agreement entered into by and between the Trustee and
the Cap Provider, dated as of [ - ], providing for certain payments to be made
to the Securities Administrator on behalf of the Issuing Entity.
CAP PAYMENT: The aggregate of all payments received by the Securities
Administrator from the Cap Provider on a Distribution Date pursuant to the Cap
Agreement.
CAP PROVIDER: [ - ]
CERTIFICATE: Any one of the mortgage-backed certificates issued pursuant to
this Agreement executed by the Trustee in substantially the forms attached
hereto as Exhibit G-1 Exhibit G-2, Exhibit G-3, Exhibit G-4, Exhibit G-5 and
Exhibit G-6.
CERTIFICATE PRINCIPAL BALANCE: With respect to any Class of Certificates
other than the Class C, R and RX Certificates and any Distribution Date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the initial principal balance of such
Class of Certificates as of the Closing Date minus the sum of (a) all
distributions of principal previously made with respect that Class of
Certificates and (b) all Applied Loss Amounts previously allocated to that Class
of Certificates and increased by any Subsequent Recoveries allocated to such
Class for previous Distribution Dates. With respect to each Class C Certificate
as of any Distribution Date, the Percentage Interest evidenced by such
Certificate times the Uncertificated Principal Balance of the Class C Interest.
For purposes of Article VIII hereof, unless specifically provided to the
contrary, the Certificate Principal Balance shall be determined as of the close
of business of the immediately preceding Distribution Date, after giving effect
to all distributions made on such Distribution Date.
CERTIFICATEHOLDER OR HOLDER: With respect to a Book-Entry Certificate, the
beneficial owner of such Book-Entry Certificate, and with respect to a
Definitive Certificate, the Holder of such Definitive Certificate and in whose
name a Certificate is registered in the Certificate Register.
CERTIFICATE REGISTRAR The Person appointed to maintain the Certificate
Register.
8
CERTIFICATE REGISTER: The register maintained pursuant to Section 11.2.
CLASS: All Certificates bearing the same class designation as set forth in
the Preliminary Statement. In the case of the REMIC Regular Interests, the term
"Class" refers to such REMIC Regular Interests having the same designation as
set forth in the Preliminary Statement.
CLASS A CERTIFICATES: The Luminent Mortgage Trust 200_-_ Mortgage
Pass-Through Certificates, Series 200_-_, Class A Certificates having an initial
Certificate Principal Balance and Pass-Through Rate as set forth herein and
representing (i) a Regular Interest in REMIC II and (ii) the right to receive
amounts in respect of its related Net WAC Cap Carryover Amount.
CLASS C CERTIFICATES: The Luminent Mortgage Trust 200_-_ Mortgage-Backed
Certificates, Series 200_-_, Class C Certificates having an initial Certificate
Principal Balance, a Notional Amount and associated Pass-Through Rate as set
forth herein and representing (i) a Regular Interest in REMIC III, and (ii) the
obligation to pay the Net WAC Cap Carryover Amount.
CLASS C DISTRIBUTABLE AMOUNT: With respect to any Distribution Date and the
Class C Interest, the sum of (i) the interest accrued on such Class C Interest
at its Pass-Through Rate calculated on its Notional Amount less the amount
(without duplication) of Net WAC Cap Carryover Amounts paid pursuant to Section
10.5(a)(iii)(E), (ii) any remaining Aggregate Overcollateralization Release
Amounts and (iii) the aggregate of amounts remaining in the Reserve Account
after the distributions in Section 10.5(a)(iii)(D), as specified in Section
10.2(b)(i) - (v). With respect to the Class C Certificate, 100% of the amount
distributed to the Class C Interest.
CLASS C INTEREST: An uncertificated interest in the Trust Fund representing
the right to distributions as set forth herein and evidencing (i) a Regular
Interest in REMIC II and (ii) the obligation to pay the Net WAC Cap Carryover
Amount.
CLASS M CERTIFICATES: The Class M-1 and M-2 Certificates.
CLASS M INTERESTS: The Class M-1 Interest and the Class M-2 Interest.
CLASS M-1 CERTIFICATES: The Luminent Mortgage Trust 200_-_ Mortgage
Pass-Through Certificates, Series 200_-_, Class M-1 Certificates having an
initial Certificate Principal Balance and Pass-Through Rate as set forth herein
and representing (i) a Regular Interest in REMIC II and (ii) the right to
receive amounts in respect of its related Net WAC Cap Carryover Amount.
9
CLASS M-1 PRINCIPAL DISTRIBUTION AMOUNT: As of any Distribution Date on or
after the Stepdown Date and as long as a Trigger Event is not in effect, the
excess of (a) the sum of (i) the aggregate Certificate Principal Balances of the
Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M-1 Certificates immediately prior to
such Distribution Date over (b) the lesser of (i) the product of (A)
approximately [ - ]% and (B) the aggregate Scheduled Principal Balance of the
Mortgage Loans as of the last day of the related Due Period and (ii) the amount
by which the aggregate Scheduled Principal Balance of the Mortgage Loans as of
the last day of the related Due Period exceeds the product of (A) [ - ]% and (B)
the Cut-off Date Balance of the Mortgage Loans.
CLASS M-2 CERTIFICATES: The Luminent Mortgage Trust 200_-_ Mortgage
Pass-Through Certificates, Series 200_-_, Class M-2 Certificates having an
initial Certificate Principal Balance and Pass-Through Rate as set forth herein
and (i) representing a Regular Interest in REMIC II and (ii) the right to
receive amounts in respect of its related Net WAC Cap Carryover Amount.
CLASS M-2 PRINCIPAL DISTRIBUTION AMOUNT: As of any Distribution Date on or
after the Stepdown Date and as long as a Trigger Event is not in effect, the
excess of (a) the sum of (i) the aggregate Certificate Principal Balances of the
Class A and M-1 Certificates (after taking into account the payment of the
Senior Principal Distribution Amount and the Class Principal Distribution Amount
for the Class M-1 Certificates on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M-2 Certificates immediately prior to
such Distribution Date over (b) the lesser of (i) the product of (A)
approximately [ - ]% and (B) the aggregate Scheduled Principal Balance of the
Mortgage Loans as of the last day of the related Due Period and (ii) the amount
by which the aggregate Scheduled Principal Balance of the Mortgage Loans as of
the last day of the related Due Period exceeds the product of (A) [ - ]% and (B)
the Cut-off Date Balance of the Mortgage Loans.
CLASS P CERTIFICATES: The Luminent Mortgage Trust 200_-_ Mortgage
Pass-Through Certificates, Series 200_-_, Class P Certificates having an initial
Certificate Principal Balance and Pass-Through Rate as set forth herein and
representing a Regular Interest in REMIC IV.
CLASS P INTEREST: An uncertificated interest in the Trust Fund representing
the right to distributions as set forth herein and evidencing a Regular Interest
in REMIC II.
CLASS PRINCIPAL DISTRIBUTION AMOUNT: With respect to each Distribution
Date, each of the Class M-1 Principal Distribution Amount and the Class M-2
Principal Distribution Amount for such Distribution Date, as applicable.
CLASS R CERTIFICATES: The Luminent Mortgage Trust 200_-_ Mortgage
Pass-Through Certificates, Series 200_-_, Class R Certificates representing the
Residual Interest in each of REMIC I and REMIC II.
CLASS R-I INTEREST: The uncertificated Residual Interest in REMIC I.
CLASS R-II INTEREST: The uncertificated Residual Interest in REMIC II.
10
CLASS RX CERTIFICATES: The Luminent Mortgage Trust 200_-_ Mortgage
Pass-Through Certificates, Series 200_-_, Class RX Certificates representing the
Residual Interest in each of REMIC III and REMIC IV.
CLASS RX-III INTEREST: The uncertificated Residual Interest in REMIC III.
CLASS RX-IV INTEREST: The uncertificated Residual Interest in REMIC IV.
CLEAN-UP CALL: The termination of the Issuing Entity in connection with the
purchase of the Mortgage Loans pursuant to Section 13.1.
CLOSING DATE: [ - ].
CODE: The Internal Revenue Code of 1986, as it may be amended from time to
time, or any successor statutes thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
COMMISSION: The Securities and Exchange Commission.
COMPENSATING INTEREST PAYMENT: With respect to any Distribution Date, an
amount equal to the lesser of (a) the aggregate Prepayment Interest Shortfall
with respect to such Distribution Date and (b) the amount of the Servicing Fee
actually paid to, or retained by, the Servicer in respect of such Distribution
Date.
COMPLIANCE STATEMENT: As defined in Section 5.2.
CONDEMNATION PROCEEDS: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise of the
power of eminent domain or condemnation, to the extent not required to be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents.
CONTROL: The meaning specified in Section 8-106 of the UCC.
CORPORATE TRUST OFFICE: With respect to:
(a) the Securities Administrator, the principal corporate trust office at
which, at any particular time, its corporate trust business in connection with
this Agreement shall be administered, which office, at the date of the execution
of this Agreement, is located at [ - ], or at such other address as the
Securities Administrator may designate from time to time by notice to
Certificateholders, the Trustee, the Depositor, the Seller, the Master Servicer
and the Servicer; provided, however, that with respect to the Securities
Administrator and presentment of the Certificates for registration of transfer,
exchange or final payment: [ - ]; and
(b) the Trustee, the principal office of the Trustee at which at any
particular time its corporate trust business in connection with this Agreement
shall be administered, which office at the date of execution of this Agreement
is located at [ - ], or at such other address as the Trustee may designate from
time to time by notice to the Certificateholders, the Securities Administrator,
the Depositor, the Seller, the Master Servicer and the Servicer.
11
CORRESPONDING CLASS: The following chart illustrates the Corresponding
Classes of Uncertificated REMIC I Regular Interests, Uncertificated REMIC II
Regular Interests and Certificates:
UNCERTIFICATED REMIC I UNCERTIFICATED REMIC II
REGULAR INTEREST REGULAR INTEREST CLASS OF CERTIFICATES
---------------------- ----------------------- ---------------------
LTA N/A Class A Certificate
LTM1 N/A Class M-1 Certificate
LTM2 N/A Class M-2 Certificate
LTP Class P Interest Class P Certificate
N/A Class C Interest Class C Certificate
CUMULATIVE REALIZED LOSSES: The aggregate Realized Losses incurred in
respect of Liquidated Mortgage Loans since the Cut-off Date, as reduced by the
aggregate amount of Subsequent Recoveries received since the Cut-off Date.
CUMULATIVE REALIZED LOSS PERCENTAGE: With respect to any Distribution Date,
a fraction, expressed as a percentage, obtained by dividing (a) the aggregate
amount of Cumulative Realized Losses incurred on the Mortgage Loans from the
Cut-off Date through the last day of the related Due Period by (b) the aggregate
Cut-off Balance of the Mortgage Loans.
CURRENT INTEREST: With respect to any Distribution Date and each Class of
Certificates (other than the Class C, Class P, Class R and Class RX
Certificates), the amount of interest, calculated in accordance with Section
1.3, accrued during the related Interest Accrual Period at the Pass-Through Rate
for such Class on the related Certificate Principal Balance immediately prior to
such Distribution Date.
CUSTODIAL ACCOUNT: The account or accounts established and maintained
pursuant to Section 4.5 hereof.
CUSTODIAN: [ - ], or its successor in interest or assigns.
CUT-OFF DATE: [ - ].
CUT-OFF DATE BALANCE: The aggregate Scheduled Principal Balance of the
Mortgage Loans as of the close of business on the Cut-off Date.
DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a reduction of
the Scheduled Monthly Payment that the related Mortgagor is obligated to pay on
any Due Date as a result of any proceeding under bankruptcy law or any similar
proceeding.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then-outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any Scheduled Monthly
Payment that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
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DEFINITIVE CERTIFICATES: Any Certificate evidenced by a physical
certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 11.2(e).
DELETED MORTGAGE LOAN: A Mortgage Loan that is repurchased from the Trust
Fund or as to which one or more Qualified Substitute Mortgage Loans are
substituted therefor.
DELINQUENCY RATE: For any Due Period, the fraction, expressed as a
percentage, the numerator of which is the aggregate Scheduled Principal Balance
of all Mortgage Loans that are 60 or more days delinquent (including all
foreclosures and REO Properties) as of the close of business on the last day of
the preceding calendar month, and the denominator of which is the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the close of business on
the last day of such calendar month.
DEPOSITOR: Xxxxx Asset Securitization, Inc., a Delaware corporation, or its
successors in interest.
DEPOSITORY: The initial Depository shall be The Depository Trust Company,
the nominee of which is Cede & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the UCC of the State of New York and
registered as a "clearing agency" pursuant to Section 17A of the Exchange Act as
amended.
DETERMINATION DATE: With respect to any Distribution Date, the Business Day
preceding the Servicer Remittance Date.
DISQUALIFIED ORGANIZATION: (a) The United States, any State or political
subdivision thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing; (b) any organization
(other than a xxxxxx'x cooperative as defined in Section 521 of the Code) that
is exempt from federal income taxation (including taxation under the unrelated
business taxable income provisions of the Code); (c) any rural telephone or
electrical service cooperative described in Section 1381(a)(2)(C) of the Code;
(d) any foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of a U.S. Person; (e) any "electing large
partnership"; or (f) any other entity so designated by Treasury rulings or
regulations promulgated or otherwise in effect as of the date hereof. In
addition, a corporation will not be treated as an instrumentality of the United
States or of any state or political subdivision thereof if all of its activities
are subject to tax and, with the exception of Xxxxxxx Mac, a majority of its
board of directors is not selected by such governmental unit.
DISTRIBUTION ACCOUNT: The separate account established and maintained
pursuant to Section 10.1.
DISTRIBUTION DATE: The __ day of each calendar month or if the [ - ] day is
not a Business Day, the next succeeding Business Day, commencing in [ - ].
DISTRIBUTION DATE REPORT: As defined in Section 5.5.
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DUE DATE: The day of the month on which the Scheduled Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace, as specified in the
related Mortgage Note.
DUE PERIOD: With respect to any Distribution Date and a Mortgage Loan, the
period commencing on the second day of the month immediately preceding the month
in which such Distribution Date occurs (or the day following the Cut-off Date in
respect of the first Due Period) and ending at the close of business on the
first day of the calendar month in which such Distribution Date occurs.
XXXXX: The "Electronic Data Gathering, Analysis, and Retrieval" system of
the Commission, which performs automated collection, validation, indexing,
acceptance, and forwarding of submissions by companies and others who are
required by law to file forms with the Commission.
ELIGIBLE ACCOUNT: Any of (a) 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, (b) 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), provided that any such deposits not so insured shall
be maintained in an account at a depository institution or trust company whose
commercial paper or other short term debt obligations (or, in the case of a
depository institution or trust company which is the principal subsidiary of a
holding company, the commercial paper or other short term debt obligations of
such holding company) have been rated by each Rating Agency in its highest
short-term rating category, (c) a trust account or accounts maintained with (i)
the trust department of a federal or state chartered depository institution or
(ii) a trust company, acting in its fiduciary capacity, or (d) 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, the Securities Administrator or the Master Servicer.
ELIGIBLE INVESTMENTS: Any dollar-denominated investment that is one or more
of the following (and may include investments for which the Trustee, the
Securities Administrator and/or their Affiliates, or the Master Servicer and/or
its Affiliates, provides services or receives compensation):
(a) cash;
(b) direct registered obligations of, and registered obligations the timely
payment of principal and interest on which is fully and expressly guaranteed by,
the United States or any agency or instrumentality of the United States the
obligations of which are expressly backed by the full faith and credit of the
United States;
(c) demand and time deposits in, interest bearing trust accounts at,
certificates of deposit of, bankers' acceptances payable within 183 days of
issuance issued by, or Federal funds sold by any depository institution or trust
company incorporated under the laws of the United
14
States or any state thereof and subject to supervision and examination by
Federal and/or state banking authorities so long as the commercial paper and/or
the 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 debt obligations of such holding company) at the time of
such investment or contractual commitment providing for such investment have a
credit rating of not less than "AA+" by S&P and "Aa2" by Xxxxx'x (and if rated
"Aa2", such rating is not on watch for downgrade by Xxxxx'x) in the case of
long-term debt obligations, or "A-1+" by S&P and "P-1" by Xxxxx'x (and if rated
"P-1", such rating is not on watch for downgrade by Xxxxx'x) and in the case of
commercial paper and short-term debt obligations; provided that (i) in each
case, the issuer thereof must have at the time of such investment or contractual
commitment providing for such investment a long-term credit rating of not less
than "Aa2" by Xxxxx'x (and if rated "Aa2", such rating is not on watch for
downgrade by Xxxxx'x) and (ii) in the case of commercial paper and short-term
debt obligations with a maturity of longer than 91 days, the issuer thereof must
also have at the time of such investment or contractual commitment providing for
such investment a long-term credit rating of not less than "AA+" by S&P;
(d) unleveraged repurchase obligations (if treated as debt for United
States federal income tax purposes by the issuer) with respect to (i) any
security described in clause (b) above or (ii) any other registered security
issued or guaranteed by an agency or instrumentality of the United States (in
each case without regard to the final maturity of such security), in either case
entered into with a United States federal or state depository institution or
trust company (acting as principal) described in clause (c) above or entered
into with a corporation (acting as principal) whose long-term rating at the time
of such investment or contractual commitment providing for such investment is
not less than "AA+" by S&P and "Aa2" by Xxxxx'x (and if rated "Aa2", such rating
is not on watch for downgrade by Xxxxx'x) or whose short-term credit rating at
the time of such investment or contractual commitment providing for such
investment is "A-1+" by S&P and "P-1" by Xxxxx'x (and if rated "P-1", such
rating is not on watch for downgrade by Xxxxx'x) at the time of such investment;
provided that (A) in each case, the issuer thereof must have at the time of such
investment or contractual commitment providing for such investment a long-term
credit rating of not less than "Aa2" by Xxxxx'x (and if rated "Aa2", such rating
is not on watch for downgrade by Xxxxx'x) and (B) if such security has a
maturity of longer than 91 days, the issuer thereof must also have at the time
of such investment or contractual commitment providing for such investment a
long-term credit rating of not less than "AA+" by S&P and "Aa2" by Xxxxx'x (and
if rated "Aa2", such rating is not on watch for downgrade by Xxxxx'x);
(e) registered debt securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United States or
any state thereof that have a credit rating at the time of such investment or
contractual commitment providing for such investment of not less than "AA" by
S&P and "Aa2" by Xxxxx'x (and if rated "Aa2", such rating is not on watch for
downgrade by Xxxxx'x);
(f) commercial paper or other short-term obligations with a maturity of not
more than 183 days from the date of issuance and having at the time of such
investment or contractual commitment providing for such investment a credit
rating of "A-1+" by S & P; provided, that (i) in each case, the issuer thereof
must have at the time of such investment or contractual commitment providing for
such investment a long-term credit rating of not less than "Aa2" by
15
Xxxxx'x (and if rated "Aa2", such rating is not on watch for downgrade by
Xxxxx'x) and (ii) if such security has a maturity of longer than 91 days, the
issuer thereof must also have at the time of such investment or contractual
commitment providing for such investment a long-term credit rating of not less
than "AA" by S & P;
(g) Reinvestment Agreements issued by any bank (if treated as a deposit by
such bank), or a registered Reinvestment Agreement issued by any insurance
company or other corporation or entity organized under the laws of the United
States or any state thereof (if treated as debt for tax purposes by the issuer),
in each case, that has a credit rating of not less than "A-1+" by S&P and "P-1"
by Xxxxx'x (and if rated "P-1", such rating is not on watch for downgrade by
Xxxxx'x); provided, that (i) in each case, the issuer thereof must have at the
time of such investment or contractual commitment providing for such investment
a long-term credit rating of not less than "Aa2" by Xxxxx'x (and if rated "Aa2",
such rating is not on watch for downgrade by Xxxxx'x) and (ii) if such security
has a maturity of longer than 91 days, the issuer thereof must also have at the
time of such investment or contractual commitment providing for such investment
a long-term credit rating of not less than "AA" by S & P; and
(h) interests in any money market fund or similar investment vehicle having
at the time of investment therein the highest credit rating assigned by each of
the Rating Agencies (which may include money market funds or common trust funds,
including without limitation, any fund for which the Securities Administrator or
its Affiliate serves as an investment adviser, administrator, shareholder
servicing agent and/or from which such party collects fees).
In each case (other than clause (a)), such Eligible Investment shall have a
final maturity (giving effect to any applicable grace period) no later than the
Business Day immediately preceding the Distribution Date (or, if the Securities
Administrator or an Affiliate is the obligor on such Eligible Investment, the
Distribution Date) next following the Due Period in which the date of investment
occurs; provided, that, Eligible Investments may not include (i) any
interest-only security, any security purchased at a price in excess of 100% of
the par value or any security that provides for payment of both principal and
interest with a yield to maturity in excess of 120% of the yield to maturity at
par, (ii) any floating rate security whose interest rate is inversely or
otherwise not proportionately related to an interest rate index or is calculated
as other than the sum of an interest rate index plus a spread, (iii) securities
subject to an offer, (iv) any security with a rating from S&P which includes the
subscript "p," "pi," "q," "r" or "t", or (v) any investment, the income from
which is or will be subject to deduction or withholding for or on account of any
withholding or similar tax.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA RESTRICTED CERTIFICATES: Any of the Class R, Class RX, Class C and
Class P Certificates and any Class of Certificates with a rating below the
lowest applicable rating requirement of an exemption listed in footnote 1 of,
and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
ERRORS AND OMISSIONS INSURANCE POLICY: An errors and omissions insurance
policy to be maintained by the Servicer pursuant to Section 4.13 or by the
Master Servicer pursuant to Section 8.3.
16
ESCROW ACCOUNT: The separate account or accounts created and maintained by
the Servicer pursuant to Section 4.7 hereof.
ESCROW PAYMENTS: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, fire and hazard insurance premiums, condominium charges, and
any other payments required to be escrowed by the Mortgagor with the mortgagee
pursuant to the Mortgage or any other related document.
EXCESS CASH FLOW: With respect to any Distribution Date, an amount equal to
Available Funds remaining after distribution of all amounts pursuant to Section
10.5(a)(i) and (ii).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
XXXXXX XXX: Xxxxxx Xxx, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FICO: The credit score used for underwriting a Mortgage Loan.
FIDELITY BOND: A fidelity bond to be maintained by the Servicer pursuant to
Section 4.13 or by the Master Servicer pursuant to Section 8.3.
FINAL CERTIFICATION: A certification as to the completeness of each
Mortgage File provided by the Custodian within 90 days following the Closing
Date in accordance with Section 2.5.
FINAL SCHEDULED DISTRIBUTION DATE: The Distribution Date following the
month of the scheduled maturity date of the Mortgage Loan having the latest
scheduled maturity date as of the Cut-off Date.
FIXED RATE MORTGAGE LOAN: Any Mortgage Loan for which the Mortgage Rate is
constant and is not determined by reference to an Index.
FORMULA RATE: For each Class of Certificates, a per annum rate equal to the
lesser of (i) One-Month LIBOR plus the applicable Pass-Through Margin and (ii)
14.00%.
XXXXXXX MAC: The Federal Home Loan Mortgage Corporation (FHLMC), or any
successor thereto.
GROSS MARGIN: With respect to each Adjustable Rate Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note which is added to the
Index in order to determine the related Mortgage Rate, as set forth in the
Mortgage Loan Schedules.
HUD: The United States Department of Housing and Urban Development, or any
successor thereto.
17
INDENTURE: An indenture relating to the issuance of notes secured by all or
a portion of the Class C Certificates, the Class P Certificates and/or the Class
R and Class RX Certificates.
INDEPENDENT: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and Exchange
Commission's Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct financial
interest in such other Person or any Affiliate of such other Person, and (c) is
not connected with such other Person or any Affiliate of such other Person as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
INDEX: The index specified in the related Mortgage Note for calculation of
the Mortgage Rate thereof.
INITIAL CERTIFICATION: A certification as to the completeness of each
Mortgage File provided by the Custodian on the Closing Date in accordance with
Section 2.5.
INSURANCE PROCEEDS: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property,
if applicable, including the proceeds of any hazard or flood insurance policy.
INTEREST ACCRUAL PERIOD: With respect to any Distribution Date and each
Class of Certificates (other than the Class C Certificates) and the
Uncertificated REMIC II Regular Interests (other than the Class C Interest), the
period commencing on the Distribution Date in the month immediately preceding
the month in which such Distribution Date occurs (or, in the case of the first
Distribution Date, the Closing Date) and ending on the close of business on the
calendar day immediately preceding such Distribution Date. With respect to any
Distribution Date and the Class C Certificates, the Class C Interest and the
REMIC I Regular Interests, the one month period ending on the last day of the
calendar month immediately preceding the month in which such Distribution Date
occurs.
INTEREST DISTRIBUTION AMOUNT: For each Class of Certificates, on any
Distribution Date, an amount equal to the sum of (i) the Current Interest for
such Class of Certificates for such Distribution Date, (ii) any unpaid Current
Interest for such Class from a prior Distribution Date (together with any unpaid
interest thereon), and (iii) interest accrued during the related Interest
Accrual Period on the amount described in clause (ii) above at the Pass-Through
Rate applicable to such Class of Certificates. The Interest Distribution Amount
may be reduced by Prepayment Interest Shortfalls or Relief Act Reductions
allocable to such Class of Certificates.
INTEREST PROCEEDS: With respect to any Distribution Date, the sum of all
scheduled and unscheduled payments of interest on the Mortgage Loans, all
Liquidation Proceeds in respect of interest from Liquidated Mortgage Loans, all
Insurance Proceeds on the Mortgage Loans in respect of interest and the interest
portion of the Repurchase Price of each Mortgage Loan that is repurchased upon a
breach of representations regarding such Mortgage Loan, each as is received or
advanced in the related Due Period or the related Prepayment Period, as
applicable, less the
18
Servicing Fee with respect to such Distribution Date and excluding, for the
avoidance of doubt, any Prepayment Premiums.
INVESTMENT LETTER: As defined in Section 11.2.
ISSUING ENTITY: Luminent Mortgage Trust 200_-_.
LIBOR: The London interbank offered rate for one-month United States dollar
deposits established pursuant to Schedule C hereto.
LIBOR BUSINESS DAY: As defined in Schedule C.
LIQUIDATED MORTGAGE LOAN: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
Prepayment Period related to such Distribution Date and as to which the Servicer
has certified to the Master Servicer and the Securities Administrator that it
has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of any REO
Property.
LIQUIDATION EXPENSES: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Servicer,
such expenses including (a) property protection expenses, (b) property sales
expenses, (c) foreclosure and sale costs, including court costs and reasonable
attorneys' fees, and (d) similar expenses reasonably paid or incurred in
connection with liquidation.
LIQUIDATION PROCEEDS: Cash received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the related
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of the
Mortgage Loan.
LOAN-TO-VALUE RATIO OR LTV: With respect to Mortgage Loan secured by a
first lien mortgage, the ratio of the original loan amount of such Mortgage Loan
at its origination (unless otherwise indicated) to (a) the Appraised Value of
the Mortgaged Property. With respect to any Mortgage Loan secured by a junior
lien position, a fraction, expressed as a percentage, the numerator of which is
the sum of (1) the original loan amount of the related Mortgage Loan and (2) any
outstanding principal balance of mortgage loans the liens on which are equal in
priority or senior to the lien on such related Mortgage Loan (each such sum
calculated at the date of origination of such related Mortgage Loan), and the
denominator of which is the Appraised Value of the Mortgaged Property.
LOSSES: As defined in Section 14.3.
LPMI POLICY: A policy of primary mortgage guaranty insurance with respect
to a Mortgage Loan, the premiums of which are paid by someone other than the
Mortgagor from its own funds, without reimbursement.
LPMI PROCEEDS: Proceeds of any Lender Paid Mortgage Insurance Policy.
19
MAJORITY IN INTEREST: As to the Certificates or any Class thereof, the
Holders of Certificates or Certificates of such Class evidencing, in the
aggregate, at least 51% of the Percentage Interests evidenced by all
Certificates or all Certificates of such Class.
MARGIN STEPUP DATE: The first Distribution Date after the date on which the
Clean-up Call may be exercised.
MARKER RATE: With respect to the Class C Interest and any Distribution
Date, a per annum rate equal to two times the weighted average of the
Uncertificated REMIC I Pass-Through Rates for each Uncertificated REMIC I
Regular Interest (other than Uncertificated REMIC I Regular Interest LTAA and
Uncertificated REMIC I Regular Interest LTP), with the rate on each such
Uncertificated REMIC I Regular Interest (other than Uncertificated REMIC I
Regular Interest LTZZ) subject to the lesser of (i) LIBOR plus the applicable
Pass-Through Margin and (ii) the Net WAC Rate for the purpose of this
calculation for such Distribution Date and with the rate on Uncertificated REMIC
I Regular Interest LTZZ subject to a cap of zero for the purpose of this
calculation; provided, however, that solely for this purpose, calculations of
the Uncertificated REMIC I Pass-Through Rate and the related caps with respect
to each Uncertificated REMIC I Regular Interest (other than Uncertificated REMIC
I Regular Interest LTAA, Uncertificated REMIC I Regular Interest LTZZ and
Uncertificated REMIC I Regular Interest LTP) shall be multiplied by a fraction,
the numerator of which is the actual number of days in the Interest Accrual
Period and the denominator of which is 30.
MASTER SERVICER: [ - ] and its successors and assigns in its capacity as
master servicer.
MASTER SERVICER EVENT OF DEFAULT: As defined in Section 7.9(a).
MASTER SERVICING FEE: As to each Mortgage Loan and any Distribution Date,
an amount equal to (i) one twelfth of the Master Servicing Fee Rate multiplied
by (ii) the Scheduled Principal Balance of such Mortgage Loan as of the Due Date
in the prior calendar month.
MASTER SERVICING FEE RATE: [ - ]% per annum.
MATERIAL DEFECT: With respect to any Mortgage Loan, as defined in Section
2.5(c).
MAXIMUM LTZZ UNCERTIFICATED INTEREST DEFERRAL AMOUNT: With respect to any
Distribution Date, the excess of (i) accrued interest at the Uncertificated
REMIC I Pass-Through Rate applicable to Uncertificated REMIC I Regular Interest
LTZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of Uncertificated REMIC I Regular Interest LTZZ minus the
Uncertificated REMIC I Overcollateralization Amount, in each case for such
Distribution Date, over (ii) the Uncertificated Interest on each Uncertificated
REMIC I Regular Interest (other than Uncertificated REMIC I Regular Interest
LTAA, Uncertificated REMIC I Regular Interest LTZZ and Uncertificated REMIC I
Regular Interest LTP) for such Distribution Date, with the rate on each such
Uncertificated REMIC I Regular Interest subject to a cap equal to the lesser of
(i) LIBOR plus the applicable Pass-Through Margin and (ii) the Net WAC Rate;
provided, however, that solely for this purpose, calculations of the
Uncertificated REMIC I Remittance Rate and the related caps with respect to each
Uncertificated REMIC I Regular Interest (other than Uncertificated REMIC I
Regular Interest LTAA, Uncertificated REMIC I Regular Interest LTZZ and
Uncertificated REMIC I Regular Interest LTP) shall be
20
multiplied by a fraction, the numerator of which is the actual number of days in
the Interest Accrual Period and the denominator of which is 30.
MERS: MERSCORP, Inc., its successor and assigns.
MERS DESIGNATED MORTGAGE LOAN: A Mortgage Loan for which (a) the Seller has
designated or will designate MERS as, and have taken or will take such action as
is necessary to cause MERS to be, the mortgagee of record, as nominee for the
Seller and its successors and assigns, in accordance with MERS Procedures Manual
and (b) the Seller has designated or will designate the Trustee as the Investor
on the MERS(R) System.
MERS PROCEDURES MANUAL: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS(R) SYSTEM: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
MONTHLY ADVANCE: With respect to any Mortgage Loan on any Determination
Date, an amount equal to the portion of each Scheduled Monthly Payment due in
the Due Period to which such Determination Date relates that is delinquent at
the close of business on such Determination Date, excluding any balloon payment
or any shortfalls attributable to the Relief Act.
MOODY'S: Xxxxx'x Investors Service, Inc.
MORTGAGE: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a lien on an estate in fee simple or leasehold
estate in real property securing the Mortgage Note.
MORTGAGE FILE: The mortgage documents listed on Exhibit B hereto pertaining
to a particular Mortgage Loan.
MORTGAGE LOAN: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan sold and subject to this Agreement being
identified on the Mortgage Loan Schedule hereto, which Mortgage Loan includes
without limitation the Mortgage File, the Scheduled Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
MORTGAGE LOAN DOCUMENTS: The documents referred to in Section (a) of
Exhibit B.
MORTGAGE LOAN REMITTANCE RATE: With respect to each Mortgage Loan, the
related Mortgage Rate less the Servicing Fee Rate and the Lender Paid Mortgage
Insurance Rate.
MORTGAGE LOAN SCHEDULE: The list of Mortgage Loans transferred to the
Trustee, or the Custodian on its behalf, as part of the Trust Fund and from time
to time subject to this Agreement attached hereto as Schedule A that sets forth
the information required on Exhibit A for each Mortgage Loan.
21
MORTGAGE NOTE: The original executed note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan, including any
riders or addenda thereto.
MORTGAGE RATE: With respect to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan from time to time in accordance with the
provisions of the related Mortgage Note.
MORTGAGED PROPERTY: The real property securing repayment of the debt
evidenced by a Mortgage Note.
MORTGAGOR: The obligor on a Mortgage Note.
NET PREPAYMENT INTEREST SHORTFALLS: As to any Distribution Date, the amount
by which the aggregate of Prepayment Interest Shortfalls during the related
Prepayment Period exceeds the Compensating Interest Payments made with respect
to such Distribution Date.
NET WAC CAP CARRYOVER AMOUNT: For each Class of Certificates on a
Distribution Date, the sum of (i) the excess, if any, of (a) the amount that
would have been the Current Interest for such Class of Certificates at the
Formula Rate for such Distribution Date over (b) the actual amount of Current
Interest distributable for such Class of Certificates on such Distribution Date,
(ii) any excess described in clause (i) above for any prior Distribution Date
that remains unpaid (together with any unpaid interest thereon) on such
Distribution Date, and (iii) interest accrued during the Interest Accrual Period
related to such Distribution Date on the amount described in clause (ii) above
at the Formula Rate applicable to such Class of Certificates.
NET WAC RATE: As to any Distribution Date, a per annum rate equal to the
weighted average Adjusted Net Mortgage Rate of the Mortgage Loans as of the
first day of the Due Period for such Distribution Date, calculated on the basis
of the actual number of days in the related Interest Accrual Period and a
360-day year.
NON-MORTGAGOR PREPAYMENT PREMIUM PAYMENT AMOUNT: The amount payable by the
Servicer in respect of any waived or uncollected Prepayment Premiums pursuant to
Section 4.18. The amounts payable by the Servicer shall equal the difference
between the amount of Prepayment Premium due by a Mortgagor and the actual
amount paid. Such amounts payable by the Servicer shall not be part of any REMIC
formed hereunder.
NON-RECOVERABLE ADVANCE: Any Servicing Advance (in respect of the Servicer
only) or Monthly Advance previously made or proposed to be made in respect of a
Mortgage Loan or REO Property by the Servicer or Master Servicer (in its
capacity as successor servicer) which, in the reasonable discretion of the
Servicer or Master Servicer in accordance with Accepted Servicing Practices will
not or, in the case of a proposed Servicing Advance or Monthly Advance, would
not, ultimately be recoverable by the Servicer or Master Servicer from the
related Mortgagor, related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition Proceeds or otherwise. The determination by
the Servicer that all or a portion of a Servicing Advance or Monthly Advance
would be a Non-recoverable Advance shall be evidenced by an Officer's
Certificate delivered to the Master Servicer and the Securities Administrator
setting forth such determination and a reasonable explanation thereof.
22
NON-PERMITTED FOREIGN HOLDER: As defined in Section 11.2(f).
NON-U.S. PERSON: A Person that is not a U.S. Person.
NOTIONAL AMOUNT: With respect to the Class C Certificates, a notional
amount equal to the aggregate principal balance of the Uncertificated REMIC I
Regular Interests other than Uncertificated REMIC I Regular Interest LTP. With
respect to the Class C Interest, a notional amount equal to the aggregate
principal balance of the Uncertificated REMIC I Regular Interests other than
Uncertificated REMIC I Regular Interest LTP.
OFFERED CERTIFICATES: The Class A and Class M Certificates.
OFFICER'S CERTIFICATE: A certificate (a) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President, an Assistant Vice President, the Treasurer, the Secretary, or
one of the Assistant Treasurers or Assistant Secretaries of the Depositor or the
Servicer, as the case may be, or (b), if provided for in this Agreement, signed
by a Servicing Officer and delivered to the Depositor, the Master Servicer, the
Securities Administrator and the Trustee, as the case may be, as required by
this Agreement.
OPINION OF COUNSEL: A written opinion of counsel, which shall not be at the
expense of the Master Servicer, the Securities Administrator or the Trustee, who
may be counsel for the Seller, the Servicer, the Custodian, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee, including in-house
counsel, reasonably acceptable to the Securities Administrator, the Trustee
and/or the Master Servicer, as applicable; provided, however, that with respect
to the interpretation or application of the federal income tax or ERISA matters,
such counsel must be nationally recognized as expert in the federal income tax
or ERISA aspects, as applicable, of asset securitization and must be Independent
of the Securities Administrator, the Trustee and the Master Servicer.
OUTSTANDING: As of the date of determination, all Certificates theretofore
executed authenticated and delivered under this Agreement except:
(a) Certificates theretofore cancelled by the Certificate Registrar or
delivered to the Certificate Registrar for cancellation;
(b) Certificates the payment for which money in the necessary amount has
been theretofor deposited with the Trustee in trust for the Holders of such
Certificates (provided, however, that if such Certificates are to be redeemed,
notice of such redemption has been duly given pursuant to this Agreement or
provision for such notice has been made, satisfactory to the Trustee); and
(c) Certificates in exchange for or in lieu of which other Certificates
have been authenticated and delivered pursuant to this Agreement unless proof
satisfactory to the Trustee is presented that any such Certificates are held by
a bona fide purchaser;
provided, that in determining whether the Certificateholders of the requisite
Outstanding Balance of the Certificates have given any request, demand,
authorization, direction, notice, consent or waiver hereunder. Certificates
owned by the Depositor, any Servicer, or any Affiliate of any of
23
the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates that a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded (unless such action requires the
consent, waiver, request or demand of 100% of the outstanding balance
represented by a particular Class and 100% of the outstanding balance
represented by such Class is registered in the name of one or more of the
foregoing entities). Certificates so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Certificates and
that the pledgee is not the Depositor, any Servicer, or any Affiliate of any of
the foregoing Persons.
OVERCOLLATERALIZATION AMOUNT: As of any Distribution Date, the excess, if
any, of the aggregate Scheduled Principal Balance of the Mortgage Loans as of
the last day of the related Due Period over the aggregate Certificate Principal
Balance of all Classes of Certificates other than Class C Certificates (after
taking into account all distributions of principal on such Distribution Date and
the increase of any Certificate Principal Balance as a result of Subsequent
Recoveries).
OVERCOLLATERALIZATION DEFICIENCY AMOUNT: For any Distribution Date, the
excess, if any, of (a) the Target Overcollateralization Amount for such
Distribution Date over (b) the Overcollateralization Amount for such
Distribution Date, after giving effect to the distribution of the Principal
Distribution Amount on such Distribution Date.
OVERCOLLATERALIZATION RELEASE AMOUNT: With respect to any Distribution Date
on or after the Stepdown Date on which a Trigger Event is not in effect, the
lesser of (a) the Principal Proceeds for such Distribution Date and (b) the
excess, if any, of (i) the Overcollateralization Amount for such Distribution
Date, assuming that 100% of the Principal Proceeds are applied as a principal
payment on the Certificates on such Distribution Date over (ii) the Targeted
Overcollateralization Amount for such Distribution Date. With respect to any
Distribution Date on which a Trigger Event is in effect, the
Overcollateralization Release Amount will be zero.
OWNERSHIP INTEREST: As to any Certificate, any ownership or security
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, as owner or as pledgee.
PASS-THROUGH MARGIN: With respect to the Offered Certificates, the
following percentages:
PRIOR TO MARGIN ON AND AFTER MARGIN
STEPUP DATE STEPUP DATE
--------------- -------------------
Class A Certificates [ - ]% [ - ]%
Class M-1 Certificates [ - ]% [ - ]%
Class M-2 Certificates [ - ]% [ - ]%
PASS-THROUGH RATE: The Pass-Through Rate with respect to the Offered
Certificates and any Distribution Date shall equal the lesser of (i) the related
Formula Rate for such Distribution
24
Date and (ii) the Net WAC Rate for such Distribution Date. For federal income
tax purposes, the following Pass-Through Rates shall apply:
With respect to the Offered Certificates and any Distribution Date, the
lesser of (x) the related Formula Rate for such Distribution Date and (y) the
Net WAC Rate for such Distribution Date.
With respect to the Class C Interest and any Distribution Date, a rate per
annum equal to the percentage equivalent of a fraction, the numerator of which
is (x) the sum of (i) 100% of the interest on Uncertificated REMIC I Regular
Interest LTP and (ii) interest on the Uncertificated Principal Balance of each
Uncertificated REMIC I Regular Interest listed in clause (y) at a rate equal to
the related Uncertificated REMIC I Pass-Through Rate minus the Marker Rate and
the denominator of which is (y) the aggregate Uncertificated Balance of each
Uncertificated REMIC I Regular Interest (other than Uncertificated REMIC I
Regular Interest LTP).
With respect to the Class C Certificate, 100% of the interest distributable
on the Class C Interest.
The Class P Interest, the Class P Certificates, the Class R Certificates
and the Class RX Certificates shall not have a Pass-Through Rate.
PAYING AGENT: The Person appointed to make distributions on the
Certificates.
PERCENTAGE INTEREST: Shall equal in the case of any Certificate, the
percentage interest set forth on the face thereof or equal to the percentage
obtained by dividing the initial principal amount of such Certificate by the
initial aggregate amount set forth on the face of all Certificates of the same
Class.
PERMITTED TRANSFEREE: Any person other than:
(a) a Disqualified Organization;
(b) a Non-U.S. Person unless such Non-U.S. Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI or any applicable successor form; and
(c) 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 any Trust REMIC to fail to qualify as a REMIC at any
time that the Certificates are outstanding.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PREPAYMENT INTEREST EXCESS: With respect to any Distribution Date and each
Mortgage Loan that was the subject of a Principal Prepayment in full during the
portion of the related Prepayment Period beginning on the first day of the
calendar month in which such Distribution
25
Date occurs through the end of the Prepayment Period relating to such
Distribution Date, an amount equal to interest (to the extent received) at the
applicable Mortgage Loan Remittance Rate on the amount of such Principal
Prepayment for the number of days commencing on the first day of the calendar
month in which such Distribution Date occurs and ending on the date on which
such Principal Prepayment is so applied.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution Date, for
each Mortgage Loan that was the subject of a Principal Prepayment in full or in
part during the portion of the related Prepayment Period occurring between the
first day of the related Prepayment Period and the last day of the calendar
month preceding the month in which such Distribution Date occurs and that the
Servicer applied to reduce the outstanding principal balance of such Mortgage
Loan on a date preceding the Due Date in the succeeding calendar month, an
amount equal to interest at the applicable Mortgage Loan Remittance Rate on the
amount of such Principal Prepayment for the number of days commencing on the
date on which the prepayment is applied and ending on the last day of the
calendar month preceding such Distribution Date.
PREPAYMENT PERIOD: With respect to any Distribution Date [and (i) any
Principal Prepayment in full, the period that commences on and includes the __
day of the month immediately preceding the month in which such Distribution Date
occurs (or from the Cut-off Date, in the case of the first Prepayment Period)
and ends on and includes the __ day of the month in which such Distribution Date
occurs, and (ii) any partial Principal Prepayment], the calendar month preceding
the month in which the Distribution Date occurs.
PREPAYMENT PREMIUM: With respect to a Mortgage Loan, the prepayment charge
or penalty interest required to be paid by the Mortgagor in connection with a
prepayment of the related Mortgage Loan, as provided in the related Mortgage
Note or Mortgage, and as specified on the related Mortgage Loan Schedule.
PRINCIPAL PROCEEDS: For any Distribution Date, the sum of all scheduled and
unscheduled payments of principal on the Mortgage Loans, all Liquidation
Proceeds in respect of principal from Liquidated Mortgage Loans, all Insurance
Proceeds on the Mortgage Loans in respect of principal, and the principal
portion of the Repurchase Price of each Mortgage Loan that is repurchased upon a
breach of representations regarding such Mortgage Loan in such Mortgage Loan
Group, each as is received or advanced in the related Due Period or the related
Prepayment Period, as applicable, excluding, for the avoidance of doubt, any
Prepayment Premiums.
PRIVATE CERTIFICATE: Any Class of Certificates that is not registered under
the Securities Act.
PROSPECTUS: Each of the (i) preliminary prospectus supplement, dated _____,
together with the accompanying prospectus dated _____, and (ii) the prospectus
supplement dated ____, together with the accompanying prospectus dated ____, in
each case relating to the Offered Certificates.
QUALIFIED SUBSTITUTE MORTGAGE LOAN: A mortgage loan eligible to be
substituted by the Seller or Originator for a Deleted Mortgage Loan which must
meet the following criteria:
26
(a) have a Scheduled Principal Balance, after deduction of all Scheduled
Monthly Payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Scheduled Principal Balance), not in excess of the Scheduled Principal
Balance of the Deleted Mortgage Loan;
(b) have a Mortgage Loan Remittance Rate not less than, and not more than
2% greater than, the Mortgage Loan Remittance Rate of the Deleted Mortgage Loan;
(c) have a remaining term to maturity not greater than and not more than
one year less than that of the Deleted Mortgage Loan;
(d) comply with each representation and warranty set forth in Section 2.7;
(e) be of the same type as the Deleted Mortgage Loan;
(f) have a Gross Margin not less than that of the Deleted Mortgage Loan, if
the Deleted Mortgage Loan was an Adjustable Rate Mortgage Loan;
(g) have the same lien priority as the lien priority of the replaced
Mortgage Loan;
(h) have the same Index as the Deleted Mortgage Loan;
(i) have a FICO score not less than that of the Deleted Mortgage Loan;
(j) have an LTV not greater than that of the Deleted Mortgage Loan;
(k) have a Prepayment Premium with a term and an amount at least equal to
the Prepayment Premium of the Deleted Mortgage Loan; and
(l) have a credit grade not lower in quality than that of the Deleted
Mortgage Loan.
RATING AGENCY: Each of [Xxxxx'x], [S&P], [Fitch] and [Dominion Bond Rating
Service].
REALIZED LOSS: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Scheduled Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (a) the Scheduled Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(b) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to the
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Scheduled Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (c) the Liquidation Proceeds,
if any, received during the month in which such liquidation occurred, to the
extent applied as recoveries of interest at the Adjusted Net Mortgage Rate and
to principal of the Liquidated Mortgage Loan. With respect to each Mortgage Loan
which has become the subject of a Deficient Valuation, if the principal amount
due under the related Mortgage Note has been reduced, the difference between the
principal balance of the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and the principal balance of the Mortgage Loan as reduced by
the Deficient Valuation. With respect to each
27
Mortgage Loan which has become the subject of a Debt Service Reduction, the
amount, if any, by which the principal portion of the related Scheduled Monthly
Payment has been reduced.
RECORD DATE: As to any Distribution Date and with respect to all
Certificates (other than the Class C Certificates, the Class P Certificates, the
Class R Certificates and the Class RX Certificates), the last Business Day
preceding such Distribution Date. With respect to the Class C Certificates,
Class P Certificates, Class R Certificates and Class RX Certificates, the last
Business Day of the calendar month preceding the month in which the Distribution
Date occurs.
REGULAR CERTIFICATES: Any of the Class A Certificates, Class M
Certificates, Class C Certificates or Class P Certificates.
REGULATION AB: Subpart 229.1100 Asset Backed Securities (Regulation AB), 17
C.F.R. Sections 229.110-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
REINVESTMENT AGREEMENT: A guaranteed reinvestment agreement from a bank,
insurance company or other corporation or entity organized under the laws of the
United States or any state thereof under which no payments are subject to any
withholding tax or, if subject to withholding tax imposed by any jurisdiction,
the obligor thereunder is required to make "gross up" payments that cover the
full amount of any such withholding tax on an after-tax basis; provided that
such agreement provides that it is terminable by the purchaser, without premium
or penalty, in the event that the rating assigned to such agreement by any
Rating Agency is at any time lower than the rating required pursuant to the
terms of this Agreement to be assigned to such agreement in order to permit the
purchase thereof.
RELIEF ACT: The Servicemembers Civil Relief Act, as such may be amended
from time to time, or any similar state laws.
RELIEF ACT REDUCTIONS: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (a) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (b) interest accrued thereon for such month pursuant to the Mortgage
Note.
REGULAR INTEREST: A "regular interest" in a REMIC within the meaning of
Section 860G(a)(1) of the Code.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC I INTEREST LOSS ALLOCATION AMOUNT: With respect to any Distribution
Date, an amount (subject to adjustment based on the actual number of days
elapsed in the respective Interest Accrual Periods for the indicated
Uncertificated REMIC I Regular Interests for such Distribution Date) equal to
(a) the product of (i) the aggregate Scheduled Principal Balance of
28
the Mortgage Loans and REO Properties then outstanding and (ii) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LTAA minus
the Marker Rate, divided by (b) 12.
REMIC I OVERCOLLATERALIZATION TARGET AMOUNT: 1.0% of the
Overcollateralization Target Amount.
REMIC I OVERCOLLATERALIZED AMOUNT: With respect to any date of
determination, (i) 1.0% of the aggregate Uncertificated Balance of the
Uncertificated REMIC I Regular Interests minus (ii) the aggregate Uncertificated
Principal Balance of each Uncertificated REMIC I Regular Interest (other than
Uncertificated REMIC I Regular Interest LTAA and Uncertificated REMIC I Regular
Interest LTZZ) in each case as of such date of determination.
REMIC I PRINCIPAL LOSS ALLOCATION AMOUNT: With respect to any Distribution
Date, an amount equal to the product of (i) aggregate Scheduled Principal
Balance of the Mortgage Loans and REO Properties then outstanding and (ii) one
minus a fraction, the numerator of which is two times the aggregate
Uncertificated Principal Balance of each Uncertificated REMIC I Regular Interest
(other than Uncertificated REMIC I Regular Interest LTAA, Uncertificated REMIC I
Regular Interest LTZZ and Uncertificated REMIC I Regular Interest LTP) and the
denominator of which is the aggregate Uncertificated Principal Balance of each
Uncertificated REMIC I Regular Interest (other than Uncertificated REMIC I
Regular Interest LTAA and Uncertificated REMIC I Regular Interest LTP).
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.
REMIC REGULAR INTEREST: Any Uncertificated REMIC I Regular Interest or
Uncertificated REMIC II Regular Interest.
REO DISPOSITION: The sale or other disposition of REO Property.
REO DISPOSITION PROCEEDS: All amounts received with respect to an REO
Property pursuant to Section 4.15.
REO PROPERTY: A Mortgaged Property acquired by the Servicer on behalf of
the Issuing Entity through foreclosure or deed-in-lieu of foreclosure in
connection with a defaulted Mortgage Loan.
REPURCHASE PRICE: With respect to any Mortgage Loan required to be
purchased pursuant to this Agreement (other than pursuant to Section 13.1), an
amount equal to the sum of (a) 100% of the Scheduled Principal Balance of the
Mortgage Loan on the date of such purchase, (b) accrued interest thereon at the
applicable Mortgage Rate from the date through which interest was last paid by
the Mortgagor to the Due Date in the month in which the Repurchase Price is to
be distributed to the Certificateholders, (c) any unreimbursed Advances and (d)
any costs and damages incurred in connection with the violation by such Mortgage
Loan of any predatory or anti-abusive lending law.
29
REQUEST FOR RELEASE: The Request for Release submitted by the Servicer to
the Trustee or the Custodian on behalf of the Trustee, in the form of Exhibit C.
RESERVE ACCOUNT: The trust account created and maintained by the Trustee
pursuant to Section 10.2. The Reserve Account shall not be an asset of any REMIC
formed under this Agreement.
RESIDUAL CERTIFICATES: The Class R Certificates and the Class RX
Certificates.
RESIDUAL INTEREST: The sole class of "residual interests" in a REMIC within
the meaning of Section 860G(a)(2) of the Code.
RESPONSIBLE OFFICER: With respect to:
(a) the Servicer, any officer of the Servicer with direct responsibility
for the administration of this Agreement and any other officer to whom, with
respect to a particular matter, such matter is referred due to such officer's
knowledge of an familiarity with the particular subject;
(b) the Trustee, any managing director, any director, vice president, any
assistant vice president, any associate, any assistant secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers who at such time shall be
officers to whom, with respect to a particular matter, the matter is referred
because of the officer's knowledge of and familiarity with the particular
subject and who has direct responsibility for the administration of this
Agreement;
(c) the Securities Administrator, any vice president, any managing
director, any director, any associate, any assistant vice president, any
assistant secretary, any trust officer or any other officer or employee of the
Securities Administrator 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 or
employee's knowledge of and familiarity with the particular subject and in each
case who shall have direct responsibility for the administration of this
Agreement; and
(d) the Master Servicer, any vice president, any managing director, any
director, any associate, any assistant vice president, any assistant secretary,
any trust officer or any other officer or employee of the Master Servicer
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 or employee's knowledge of and
familiarity with the particular subject and in each case who shall have direct
responsibility for the administration of this Agreement.
RESPONSIBLE PARTY: _____, _____, and _____, which are those Persons
required to provide reports pursuant to Item 1122 of Regulation AB. Exhibit 1122
identifies the Servicing Criteria as to which the Responsible Parties have
responsibility with respect to this transaction.
30
ROLLING THREE MONTH DELINQUENCY RATE: With respect to any Distribution
Date, the average of the Delinquency Rates for each of the three (or a shorter
period, in the case of the first and second Distribution Dates) immediately
preceding months.
RULE 144A LETTER: As defined in Section 11.2(b).
S&P: Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc.
XXXXXXXX-XXXXX ACT: The Xxxxxxxx-Xxxxx Act of 2002, as amended from time to
time.
SCHEDULED MONTHLY PAYMENT: Each scheduled payment of principal and interest
(or of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan, as reduced (except where otherwise specified herein) by the amount of any
related Debt Service Reduction or pursuant to the Relief Act (excluding all
amounts of principal and interest that were due on or before the Cut-off Date
whenever received) and, in the case of an REO Property, an amount equivalent to
the Scheduled Monthly Payment that would have been due on the related Mortgage
Loan if such Mortgage Loan had remained in existence.
SCHEDULED PRINCIPAL BALANCE: With respect to any Mortgage Loan as of any
date of determination will be generally equal to its outstanding principal
balance as of the Cut-off Date, after giving effect to the principal portion of
any Scheduled Monthly Payments due on or before such date, whether or not
received, reduced by (a) the principal portion of all Scheduled Monthly Payments
due on or before the Due Date in the Due Period immediately preceding such date
of determination, whether or not received, and (b) all amounts allocable to
unscheduled principal payments received on or before the last day of the Due
Period immediately preceding such date of determination.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITIES ADMINISTRATOR: [ - ], or any successor or assigns under this
Agreement.
SELLER: Maia Mortgage Finance Statutory Trust, or any successor.
SENIOR ENHANCEMENT PERCENTAGE: For a Distribution Date, a fraction
expressed, as a percentage, equal to (a) the sum of the aggregate Certificate
Principal Balance of the Class M Certificates and the Overcollateralization
Amount, in each case before taking into account any payments of principal to the
Certificates on that Distribution Date, divided by (b) the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: As of any Distribution Date on or
after the Stepdown Date and as long as a Trigger Event is not in effect, the
excess of (a) the aggregate Certificate Principal Balance of the Class A
Certificates immediately prior to such Distribution Date over (b) the lesser of
(i) the product of (1) [ - ]% and (2) the aggregate Scheduled Principal Balance
of the Mortgage Loans as of the last day of the related Due Period and (ii) the
amount by which the aggregate Scheduled Principal Balance of the Mortgage Loans
as of the last day of the related Due Period exceeds the product of (1) [ - ]%
and (2) the Cut-off Date Balance.
31
SERVICER: [ - ] and its successor in interest or assigns or any successor
to the Servicer under this Agreement.
SERVICER EVENT OF DEFAULT: Any one of the conditions or circumstances
enumerated in Section 6.5.
SERVICER REMITTANCE AMOUNT: As defined in Section 4.24(a).
SERVICER REMITTANCE DATE: The day in each calendar month on which the
Servicer is required to remit payments to the Distribution Account, which is the
___ Business Day following the ____ day of such calendar month, commencing in
_____________.
SERVICER REPORT: The reports provided by the Servicer to the Master
Servicer and the Securities Administrator pursuant to Section 5.5
SERVICING ADVANCES: All customary, reasonable and necessary "out of pocket"
costs and expenses (including reasonable attorneys' fees and disbursements)
other than Monthly Advances incurred prior to, on or after the Cut-off Date in
the performance by the Servicer of its servicing obligations, including, but not
limited to, the cost of (a) the inspection, maintenance, preservation,
restoration and protection of any Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, in respect of a particular
Mortgage Loan, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS(R)
System, (c) the management (including reasonable fees in connection therewith)
and liquidation of any REO Property, (d) compliance with the obligations under
Section ______ and (e) obtaining any legal documentation required to be included
in the Mortgage File and/or correcting any outstanding title issues (i.e., any
lien or encumbrance on the Mortgaged Property that prevents the effective
enforcement of the intended lien position) reasonably necessary for the Servicer
to perform its obligations under this Agreement. Servicing Advances also include
any reasonable "out-of-pocket" costs and expenses (including legal fees)
incurred by the Servicer in connection with executing and recording instruments
of satisfaction, deeds of reconveyance or an Assignment of Mortgage to the
extent not recovered from the Mortgagor or otherwise payable under this
Agreement.
SERVICING CRITERIA: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
SERVICING FEE: With respect to each Mortgage Loan, the amount of the annual
fee payable on account of servicing, which shall, for a period of one full
month, be equal to one-twelfth of the product of (a) the Servicing Fee Rate and
(b) the Scheduled Principal Balance of such Mortgage Loan as of the first day of
the related Due Period. The Servicing Fee is payable solely from the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceeds of such Scheduled Monthly
Payment collected by the Servicer, or as otherwise provided under Section 4.7.
SERVICING FEE RATE: [ - ]% per annum.
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SERVICING FILE: With respect to each Mortgage Loan, the file retained by
the Servicer consisting of originals of all documents in the Mortgage File which
are not delivered to the Custodian and copies of the Mortgage Loan Documents,
the originals of which are delivered to the Custodian on behalf of the Trustee.
SERVICING OFFICER: Any officer of a Servicer involved in or responsible for
the administration and servicing of the Mortgage Loans whose name appears on a
list of servicing officers furnished by the Servicer on the Closing Date to the
Master Servicer upon request, as such list may from time to time be amended.
SPONSOR: _______________________
STARTUP DAY: As defined in the Preliminary Statement.
STEPDOWN DATE: The earlier to occur of (a) the Distribution Date on which
the aggregate Certificate Principal Balance of the Class A Certificates is
reduced to zero, and (b) the later to occur of (i) the Distribution Date in [ -
] or (ii) the first Distribution Date on which the Senior Enhancement Percentage
is greater than or equal to [ - ]%.
SUBCONTRACTOR: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as servicing is commonly understood by
participants in the mortgage-backed securities market) of the Mortgage Loans but
performs one or more discrete functions identified in Item 122(d) of Regulation
AB with respect to the Mortgage Loans under the direction or authority of the
Servicer or a Subservicer.
SUBSEQUENT RECOVERY: Any amount (net of reimbursable expenses) received on
a Mortgage Loan subsequent to such Mortgage Loan being determined to be a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior month. If
Subsequent Recoveries are received, they will be included as part of the
Principal Proceeds for the Distribution Date following the calendar month in
which they are received and distributed in accordance with the priorities
described herein. In addition, after giving effect to all distributions on a
Distribution Date, the unpaid Applied Loss Amount for the Class M Certificates
then outstanding with the highest distribution priority will be decreased by the
amount of such Subsequent Recoveries until reduced to zero (with any remaining
Subsequent Recoveries applied to reduce the Applied Loss Amount of the class
with the next highest distribution priority), and the Certificate Principal
Balance of such Class or Classes of Class M Certificates will be increased by
the same amount.
SUBSERVICER: Any Person that services the Mortgage Loans on behalf of the
Servicer or any Subcontractor and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Servicer under
this Agreement that are identified in Item 1122(d) of Regulation AB.
SUBSTITUTING PARTY: As defined in Section 2.10(a).
SUBSTITUTION ADJUSTMENT AMOUNT: As defined in Section 2.10(c).
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TARGET OVERCOLLATERALIZATION AMOUNT: For any Distribution Date (a) prior to
the Stepdown Date, an amount equal to [ - ]% of the Cut-off Date Balance. For
any Distribution Date on or after the Stepdown Date, the lesser of (i) [ - ]% of
the Cut-off Date Balance of the Mortgage Loans and (ii) [ - ]% of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the last day of the
related Due Period, subject to a floor equal to [ - ]% of the Cut-off Date
Balance; provided, however, if a Trigger Event has occurred and is continuing on
the related Distribution Date, the Target Overcollateralization Amount will be
the same as the Target Overcollateralization Amount on the preceding
Distribution Date.
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. Initially, the Tax Matters Person
for REMICs I and II shall be the Holder of the Class R Certificates, and the Tax
Matters Person for REMICs III and IV shall be the Holder of the Class RX
Certificates. The Trustee will be appointed as agent of each such Tax Matters
Person pursuant to Section 14.1(k) herein unless otherwise designated.
TERMINATION PRICE: As defined in Section 13.1(a).
TRANSFEROR CERTIFICATE: As defined in Section 11.2(b).
TRIGGER EVENT: An event that is in effect on any Distribution Date on or
after the Stepdown Date, if either (a) the Rolling Three Month Delinquency Rate
as of the last day of the related Due Period equals or exceeds [ - ]% of the
Senior Enhancement Percentage on such Distribution Date or (b) the Cumulative
Realized Loss Percentage on such Distribution Date exceeds the applicable
percentages set forth in the table below with respect to such Distribution Date:
Distribution Date Occurring In Percentage
------------------------------ -----------------------------------------------
[ - ] -- [ - ] [ - ]% for the first month plus an additional
1/12th of [ - ]% for each month thereafter
[ - ] -- [ - ] [ - ]% for the first month plus an additional
1/12th of [ - ]% for each month thereafter
[ - ] -- [ - ] [ - ]% for the first month plus an additional
1/12th of [ - ]% for each month thereafter
[ - ] -- [ - ] [ - ]% for the first month plus an additional
1/12th of [ - ]% for each month thereafter
[ - ] -- [ - ] [ - ]%
TRUST FUND: As defined in Section 2.5.
TRUSTEE: [ - ] and, if a successor trustee is appointed hereunder, such
successor.
TRUST REMIC: Each REMIC created under the terms of this Agreement.
UCC: The Uniform Commercial Code as enacted in the relevant jurisdiction.
34
UNCERTIFICATED INTEREST: With respect to any REMIC Regular Interest for any
Distribution Date, one month's interest at the REMIC Remittance Rate applicable
to such REMIC Regular Interest for such Distribution Date, accrued on the
Uncertificated Principal thereof immediately prior to such Distribution Date.
Uncertificated Interest in respect of any Uncertificated REMIC I Interest, and
the Class C Interest shall accrue on the basis of a 360-day year consisting of
twelve 30-day months. Uncertificated Interest with respect to each Distribution
Date, as to any REMIC Regular Interest, shall be reduced by an amount equal to
the sum of (a) the aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date to the extent not otherwise covered and (b) the aggregate
amount of any Relief Act Interest Shortfall, if any, allocated, in each case, to
such REMIC Regular Interest. In addition, Uncertificated Interest with respect
to each Distribution Date, as to any REMIC Regular Interest shall be reduced by
Realized Losses, if any, allocated to such REMIC Regular Interest.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to the Class C Interest an
amount equal to the excess, if any, of (A) the then aggregate Uncertificated
Principal Balance of the Uncertificated REMIC I Regular Interests over (B) the
then aggregate Certificate Principal Balance of the Class A Certificates, the
Class M Certificates and the Class P Certificates then outstanding.
With respect to each other REMIC Regular Interest, the amount of any REMIC
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC Regular Interest shall
equal the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC Regular Interest shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date and, if and to the extent necessary and appropriate, shall be
further reduced on such Distribution Date by Realized Losses. The Uncertificated
Principal Balance of REMIC I Regular Interest LTZZ shall be increased by
interest deferrals as provided in Section 10.7. The Uncertificated Principal
Balance of each REMIC Regular Interest shall never be less than zero.
UNCERTIFICATED REMIC I PASS-THROUGH RATES: As of any Distribution Date, the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans,
weighted on the basis of the Uncertificated Principal Balance of such
Uncertificated REMIC I Regular Interests for each such Distribution Date.
UNCERTIFICATED REMIC I REGULAR INTERESTS: Uncertificated REMIC I Regular
Interest LTAA, Uncertificated REMIC I Regular Interest LTA, Uncertificated REMIC
I Regular Interest LTM1, Uncertificated REMIC I Regular Interest LTM2,
Uncertificated REMIC I Regular Interest LTZZ and Uncertificated REMIC I Regular
Interest LTP. Each such interest represents the beneficial ownership interests
in REMIC I as a Regular Interest in REMIC I. Each REMIC I Regular Interest shall
accrue interest at the related Uncertificated REMIC I Pass-Through Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
UNCERTIFICATED REMIC II REGULAR INTERESTS: The Class C Interest and Class P
Interest. Each such interest represents the beneficial ownership interests in
REMIC II as a Regular
35
Interest in REMIC II. Each REMIC II Regular Interest shall accrue interest at
its related Pass-Through Rate in effect from time to time, and shall be entitled
to distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
UNDERWRITER'S EXEMPTION: Any exemption listed in footnote 1 of, and amended
by, PTE 2002-41 at 67 Fed. Reg. 54487 (August 22, 2002), or any substantially
similar successor administrative exemption granted by the U.S. Department of
Labor.
UNDERWRITING GUIDELINES: Those underwriting guidelines employed by the
Seller with respect to Mortgage Loans.
U.S. PERSON: (a) A citizen or resident of the United States, (b) a
corporation created or organized in or under the laws of the United States, any
state thereof or the District of Columbia, including an entity treated as a
corporation for federal income tax purposes (c) a partnership (unless Treasury
regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a partnership for federal income tax purposes,
none of the interests in which are owned, directly or indirectly through one or
more intermediate entities, by a person that is not a U.S. Person within the
meaning this paragraph, (d) an estate the income of which is includible in gross
income for United States federal income tax purposes, regardless of its source,
(e) a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United States
fiduciaries have the authority to control all substantial decisions of the trust
(or to the extent provided in applicable Treasury regulations, certain trusts in
existence on August 20, 1996 that are eligible to be treated as United States
persons).
VOTING INTERESTS: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, the Voting Interests shall be allocated 1% to the Residual
Certificates, 1% to the Class P Certificates, and the balance among Holders of
the Certificates in proportion to the Certificate Principal Balance of their
respective Certificates on such date.
SECTION 1.2 Calculations With Respect to the Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect to
any Mortgage Loan in the Trust Fund shall be made based upon current information
as to the terms of the Mortgage Loans and reports of payments received from the
Mortgagor on such Mortgage Loans provided by the Servicer to the Master Servicer
and the Securities Administrator. Payments and distributions to be made by the
Securities Administrator shall be based on information provided by the Servicer.
Neither the Trustee, the Master Servicer nor the Securities Administrator shall
be required to recompute, verify or recalculate the information supplied to it
by the Servicer.
SECTION 1.3 Calculations With Respect to Accrued Interest.
All calculations of interest described herein with respect to any Class of
Certificates, other than Class C Certificates, and the Uncertificated REMIC III
Regular Interests (other than the Class C Interest), shall be made on the basis
of an assumed 360-day year and the actual
36
number of days in the related Interest Accrual Period. The Class C Certificates,
the Class C Interest and the Uncertificated REMIC I and REMIC II Regular
Interests shall accrue interest on the basis of an assumed 360-day year
consisting of twelve 30-day months.
SECTION 1.4 Rules of Construction.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation;"
(d) the word "will" shall be construed to have the same meaning and effect
as the word "shall;"
(e) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein);
(f) any reference herein to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's permitted successors and
assigns or such Person's permitted successors in such capacity, as the case may
be; and
(g) all references in this instrument to designated "Sections," "clauses"
and other subdivisions are to the designated Sections, clauses and other
subdivisions of this instrument as originally executed, and the words "herein,"
"hereof," "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular Section, clause or other subdivision.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
SECTION 2.1 Conveyance of Mortgage Loans to the Depositor.
On the Closing Date, in exchange for the Certificates or the net proceeds
thereof, the Seller does hereby sell, transfer, assign, or set over, deposit
with and otherwise convey without recourse (except as provided herein), and the
Depositor does hereby purchase, all right, title and interest of the Seller in
and to the Mortgage Loans listed on the Mortgage Loan Schedule, having a Cut-off
Date Balance as set forth in such Mortgage Loan Schedule.
(a) The Depositor shall be entitled to (i) all Scheduled Monthly Payments
of principal due after the Cut-off Date, (ii) all other recoveries of principal
collected after the Cut-off Date
37
(less scheduled payments of principal due on or before the Cut-off Date and
collected after the Cut-off Date), (iii) all Scheduled Monthly Payments of
interest due after the Cut-off Date (minus that portion of any such payment
which is allocable to the period prior to the Cut-off Date) and (iv) all
Prepayment Premiums. Scheduled Monthly Payments prepaid with respect to a Due
Date after the Cut-off Date shall not be applied to the principal balance as of
the Cut-off Date, but the Seller shall remit any such prepaid amounts to the
Servicer for deposit into the Custodial Account for the benefit of the
Depositor.
(b) In the case of Mortgage Loans that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Seller shall remit to the
Servicer for deposit in the Custodial Account the portion of any amount so
prepaid that is required to be deposited in the Custodial Account pursuant to
Section 4.5.
(c) Upon the sale of the Mortgage Loans, the ownership of each Mortgage
Note, the related Mortgage and the related Mortgage File shall vest immediately
in the Depositor, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or which come into the possession of the
Seller shall vest immediately in the Depositor and shall be retained and
maintained by the Seller, in trust, at the will of the Depositor and only in
such custodial capacity.
(d) The Seller shall deliver the Mortgage Loan Schedule, the Mortgage Loan
File and Mortgage Loan Documents to be purchased on the related Closing Date to
the Custodian at least three Business Days prior to such Closing Date.
SECTION 2.2 Conveyance of Mortgage Loans to the Issuing Entity.
(a) On the Closing Date, in exchange for the Certificates or the net
proceeds thereof, the Depositor does hereby sell, transfer, assign, set over,
deposit with and otherwise convey to the Issuing Entity, without recourse
(except as otherwise provided herein), all right, title and interest of the
Depositor in and to the Mortgage Loans purchased by the Depositor from the
Seller.
(b) The Issuing Entity shall be entitled to all payments on the Mortgage
Loans as provided in Section 2.1(b).
(c) Upon the issuance of the Certificates, the ownership of each Mortgage
Note, the related Mortgage and the related Mortgage File shall vest immediately
in the Issuing Entity, and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall vest immediately in the Issuing Entity and shall
be retained and maintained by the Seller, in trust, at the will of the Issuing
Entity and only in such custodial capacity.
(d) In connection with such transfer and assignment of the Mortgage Loans,
the Depositor does hereby deliver to, and deposit with, or cause to be delivered
to and deposited with the Custodian, on behalf of the Trustee, for the benefit
of the Certificateholders, the Mortgage File with respect to each Mortgage Loan,
and the ownership of all records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Depositor
shall vest immediately in the Trustee for the benefit of the Certificateholders
and shall
38
be retained and maintained by the Depositor, in trust, at the will of the
Trustee for the benefit of the Certificateholders and only in such custodial
capacity.
SECTION 2.3 Assignment of Mortgage Loans.
(a) The Seller shall cause an Assignment of Mortgage with respect to each
Mortgage Loan (other than a MERS Designated Mortgage Loan) to be completed in
the form and substance acceptable for recording in the relevant jurisdiction,
such assignment shall either be in blank or be endorsed to "[ - ], as Trustee of
the Luminent Mortgage Trust 200_-_, Mortgage Pass-Through Certificates, Series
200_-_, without recourse," on or prior to the Closing Date; provided, however,
that such Assignments of Mortgage Loans need not be recorded unless and until
the Trustee is advised by a Rating Agency that such Assignment of Mortgage is
required to be recorded to protect the Trustee's interest in the Mortgage Loans.
Any such recordation of an Assignment of Mortgage shall be effected at the
expense of the Seller.
(b) In connection with the assignment of any MERS Designated Mortgage Loan,
the Seller agrees that, on or prior to the Closing Date, the Seller will cause
the MERS(R) System to indicate that such Mortgage Loans have been assigned by
the Seller to the Depositor which has assigned such Mortgage Loans to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the code in the field that identifies the specific Trustee and the code in the
field "Pool Field" that identifies the series of the Certificates for which such
Mortgage Loans serve as collateral. The Seller further agrees that it will not,
and will not permit the Servicer to, and each of the Servicer and the Master
Servicer agrees that it will not, alter the codes referenced in this paragraph
with respect to any MERS Designated Mortgage Loan during the term of this
Agreement unless and until such MERS Designated Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
SECTION 2.4 Books and Records.
(a) The contents of each Servicing File are and shall be held in trust by
the Servicer for the benefit of the Trustee on behalf of the Certificateholders.
The Servicer shall take all necessary steps to ensure that the documents
required to be included in the Servicing File are complete and shall maintain
the Servicing File as required by this Agreement, Accepted Servicing Practices
and applicable law. Possession of each Servicing File by the Servicer is at the
will of the Trustee for the sole purpose of servicing the related Mortgage Loan
and such retention and possession by the Seller is in a custodial capacity only.
The Servicer shall release its custody of the contents of any Servicing File
only in accordance with written instructions from the Trustee, unless such
release is required as incidental to the Seller's servicing of the Mortgage
Loans or is in connection with the transfer of servicing or a repurchase of any
Mortgage Loan.
(b) All original documents relating to the Mortgage Loans that are not
delivered to the Custodian, to the extent delivered to the Servicer, are and
shall be held by the Servicer in trust for the benefit of the Trustee on behalf
of the Certificateholders. In the event that any such original document is
required pursuant to the terms of this Section to be a part of a Mortgage File,
such document shall be delivered promptly to the Custodian on behalf of the
Trustee.
39
(c) Upon and after a sale of Mortgage Loans to the Trustee for the benefit
of the Certificateholders, all proceeds arising out of the Mortgage Loans, as
provided in Section 2.1(b) shall be received and held by the Servicer in trust
for the benefit of the Trustee on behalf of the Certificateholders.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, the Servicer or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
SECTION 2.5 Review of Documentation.
(a) On the Closing Date, the Custodian will execute and deliver to the
Depositor, the Servicer and the Trustee an Initial Certification with respect to
the Mortgage Loans. Based on its review and examination, and only as to the
documents identified in the Initial Certification, the Custodian will
acknowledge that (i) such documents appear regular on their face and relate to
such Mortgage Loan and (ii) with respect to each MERS Designated Mortgage Loan,
the MERS number on the Mortgage Loan Schedule matches the MERS number on the
Mortgage for the related Mortgage File. The Custodian shall not be under any
duty or obligation to inspect, review or examine such documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable, recordable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
(b) Within 90 days after the Closing Date, the Custodian will execute and
deliver to the Depositor, the Servicer, and the Trustee a Final Certification
with any applicable exceptions noted therein. The Custodian shall (i) determine
whether such documents are executed and endorsed, but shall be under no duty or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that the same are valid, binding,
legally effective, properly endorsed, genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded or are in
recordable form or that they are other than what they purport to be on their
face and (ii) with respect to each MERS Designated Mortgage Loan, certify that
the MERS number on the Mortgage Loan Schedule matches the MERS number on the
Mortgage for the related Mortgage File. The Custodian shall not have any
responsibility for verifying the genuineness or the legal effectiveness of or
authority for any signatures of or on behalf of any party or endorser.
(c) If in the course of the review described in paragraph (c) above, the
Custodian discovers any document or documents constituting a part of a Mortgage
File is missing, does not appear regular on its face (i.e., is mutilated,
damaged, defaced, torn or otherwise physically altered) or appears to be
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, as
applicable (each, a "MATERIAL DEFECT"), the Custodian shall identify the
Mortgage Loan to which such Material Defect relates in the Final Certification.
Within 90 days of its receipt of such notice, the Seller shall be required to
cure such Material Defect (and, in such event, the Seller shall provide the
Trustee and the Custodian with an Officer's Certificate confirming that such
cure has been effected). If the Seller does not effect a cure within such 90-day
period, it shall repurchase the related Mortgage Loan from the Trust Fund at the
Repurchase Price; provided, however, that the Seller may, in lieu of
repurchasing a Mortgage Loan,
40
substitute for such Mortgage Loan a Qualified Substitute Mortgage Loan subject
to the provisions of Section 2.10, provided that such substitution occurs within
two years of the Closing Date. The failure of the Trustee to deliver, or cause
the Custodian to deliver, the Final Certification within 90 days from the
Closing Date shall not affect or relieve the Seller of its obligation to
repurchase any Mortgage Loan pursuant to this Section 2.5 or any other Section
of this Agreement requiring the repurchase of Mortgage Loans from the Trust
Fund.
SECTION 2.6 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the assets
conveyed and sold to it hereunder (the "TRUST FUND"). Concurrently with such
transfer and assignment, the Securities Administrator has executed the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund, and, upon the written order of the
Depositor, has authenticated the same Certificates. The Trustee agrees to hold
the Trust Fund and exercise the rights referred to above for the benefit of all
present and future Holders of the Certificates and to perform the duties set
forth in this Agreement in accordance with the standard of care set forth
herein.
SECTION 2.7 Representations and Warranties with Respect to the Mortgage
Loans.
(a) The Seller hereby makes the representations and warranties relating to
the Mortgage Loans set forth in Schedule B hereto as of the Closing Date and,
with respect to any Qualified Substitute Mortgage Loan originated by the Seller,
as of the date of substitution of such Qualified Substitute Mortgage Loan.
(b) Upon discovery or receipt of written notice by the Depositor, the
Servicer, the Master Servicer, the Securities Administrator or the Trustee that
the Seller has breached any representation or warranty in respect of a Mortgage
Loan that materially and adversely affects the value of such Mortgage Loan or
the interest therein of the Certificateholders, the Depositor, the Master
Servicer, the Securities Administrator or the Trustee, as the case may be,
promptly shall notify the Trustee in writing of such breach, and the Trustee
shall enforce the Seller's obligations hereunder to repurchase or, subject to
Section 2.10, substitute the related Mortgage Loan from the Trust Fund on or
prior to the Determination Date following the expiration of the 90-day period
following the earlier of the date on which the breach was discovered or notice
of the breach was received by the Trustee; provided, however, that, if such
breach cannot reasonably be cured within such 90-day period, subject to Section
2.7(d) below, if the Seller shall have commenced to cure such breach within such
90-day period, the Seller shall be permitted to proceed thereafter diligently
and expeditiously to cure the breach within an additional 90-day period. Without
limiting the foregoing, the Seller's breach of a representation or warranty
contained in clauses [(__)] through [(__)], inclusive, of Schedule B, shall be
deemed to materially and adversely affect the interest of the
Certificateholders, and shall require a repurchase or substitution as provided
herein.
(c) It is understood and agreed that the obligations of the Seller to cure,
repurchase or substitute for any Mortgage Loan as to which a document is
missing, a material defect in a constituent document exists or as to which such
a breach has occurred and is continuing shall
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constitute the sole remedy available to the Trustee on behalf of the
Certificateholders and the Certificateholder against such party respecting such
omission, defect or breach. If the Seller is not a member of MERS at the time it
repurchases a Mortgage Loan and the Mortgage is registered on the MERS(R)
System, the Trustee shall cause the Seller, at the Seller's own expense and
without any right of reimbursement, to cause MERS to execute and deliver an
assignment of the Mortgage in recordable form to transfer the Mortgage from MERS
to the Seller and to cause such Mortgage to be removed from registration on the
MERS(R) System in accordance with the MERS rules and regulations.
(d) Upon discovery by the Depositor or the Trustee that any Mortgage Loan
does not constitute a "qualified mortgage" within the meaning of Section
860G(a)(3) and the related REMIC provisions of the Code, the party discovering
such fact shall promptly (and in any event within five Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Depositor shall, or shall cause the Seller to repurchase or,
subject to the limitations set forth in Section 2.10, substitute one or more
Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 75
days of the earlier of discovery or receipt of such notice with respect to such
affected Mortgage Loan. Any such repurchase or substitution shall be made in the
same manner as set forth above. The Trustee shall re-convey to the repurchasing
party the Mortgage Loan to be released pursuant hereto in the same manner, and
on the same terms and conditions, as it would a Mortgage Loan repurchased for
breach of a representation or warranty.
SECTION 2.8 Optional Repurchase.
The Seller may, at its option, repurchase a Mortgage Loan (i) that is 90 or
more days delinquent or (ii) the related Mortgaged Property of which has
suffered material damage (evidence of such determination to be delivered in
writing to the Trustee and the Master Servicer in the form and substance
satisfactory to the Servicer, the Trustee and the Master Servicer prior to
purchase); provided that the Seller may not acquire more than [ - ]% of the
Mortgage Loans by aggregate Cut-off Date Balance pursuant to this Section 2.8.
SECTION 2.9 Repurchase of Mortgage Loans.
(a) The purchase price for any Mortgage Loan repurchased by the Seller
pursuant to this Agreement shall be the Repurchase Price for such Mortgage Loan.
The Repurchase Price for any Mortgage Loan repurchased pursuant to this
Agreement shall be deposited into the Distribution Account.
(b) The Custodian, upon receipt of a Request for Release from the Seller
(which Request for Release shall include a certification by the Seller of the
repurchase and the remittance of the Repurchase Price to the Securities
Administrator for deposit into the Distribution Account), shall release to the
Seller the related Mortgage File. The Trustee or its authorized designee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as the Seller may furnish to the
Trustee or the Custodian and as shall be necessary to vest in such party any
Mortgage Loan released pursuant hereto. None of the Trustee, the Securities
Administrator, the Master Servicer or the Custodian shall have any
responsibility for determining the sufficiency of such assignment for its
intended
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purpose, and upon such release, the Trustee and the Custodian shall have no
further responsibility with regard to such Mortgage File.
SECTION 2.10 Substitution of Mortgage Loans.
(a) In lieu of repurchasing any such Mortgage Loan as provided above, the
Seller (as such, the "SUBSTITUTING PARTY") may cause such Mortgage Loan to be
removed from the Trust Fund (in which case it shall become a "DELETED MORTGAGE
LOAN") and substitute one or more Qualified Substitute Mortgage Loans in the
manner and subject to the limitations of this Section 2.10. Any substitution of
Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to
this Section 2.10 must be effected prior to the last Business Day that is within
two years after the Closing Date. As to any Deleted Mortgage Loan for which the
Substituting Party substitutes a Qualified Substitute Mortgage Loan or Loans,
such substitution shall be effected by delivering to the Custodian, for such
Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the assignment to the Substituting Party, and such other documents and
agreements, with all necessary endorsements thereon, together with an Officers'
Certificate stating that each such Qualified Substitute Mortgage Loan satisfies
the definition thereof and specifying the Substitution Adjustment Amount (as
described below), if any, in connection with such substitution. The Custodian
shall acknowledge receipt for such Qualified Substitute Mortgage Loan and,
within 45 days thereafter, shall review such Mortgage Files and deliver to the
Substituting Party, the Trustee and the Depositor, with respect to such
Qualified Substitute Mortgage Loans, a certification substantially in the form
of a revised Initial Certification, with any exceptions noted thereon. Within 90
days of the date of substitution, the Custodian shall deliver to the
Substituting Party, the Trustee and the Depositor a certification substantially
in the form of a revised Final Certification, with respect to such Qualified
Substitute Mortgage Loans, with any exceptions noted thereon. Scheduled Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall not be included as part of the Trust Fund and shall be
retained by the Substituting Party. For the month of substitution, payments to
the Certificateholders shall reflect the collections and recoveries in respect
of such Deleted Mortgage Loan in the related Due Period and the Substituting
Party shall thereafter be entitled to retain all amounts subsequently received
in respect of such Deleted Mortgage Loan. Upon such substitution, such Qualified
Substitute Mortgage Loan shall constitute part of the Trust Fund and shall be
subject in all respects to the terms of this Agreement as of the date of
substitution.
(b) The Depositor shall amend the related Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan and the substitution of the Qualified
Substitute Mortgage Loan or Loans and the Seller shall deliver the amended
Mortgage Loan Schedule to the Trustee, the Master Servicer, the Securities
Administrator, the Custodian and the Servicer. Upon such substitution, the
Qualified Substitute Mortgage Loan shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Qualified Substitute Mortgage Loan, as of the date of
substitution, the representations and warranties made pursuant to Section 2.7
with respect to such Mortgage Loan.
(c) For any month in which any Substituting Party substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Seller shall deposit the excess (each, a "SUBSTITUTION ADJUSTMENT AMOUNT"), if
any, by which the aggregate Scheduled
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Principal Balances of all such Deleted Mortgage Loans exceeds the aggregate
Scheduled Principal Balances of the Qualified Substitute Mortgage Loans
replacing such Deleted Mortgage Loans, together with (i) amounts specified in
clause (c) of the definition of Repurchase Price and (ii) one month's interest
on such excess amount at the applicable Net Mortgage Rate. On the date of such
substitution, the Seller shall deliver or cause to be delivered to the
Securities Administrator for deposit in the Distribution Account an amount equal
to the related Substitution Adjustment Amount, if any, and the Custodian, upon
receipt of the related Qualified Substitute Mortgage Loan or Loans and a Request
for Release from the Seller, which includes a written certification of the
Seller of delivery of such amount to the Securities Administrator, shall release
to the Substituting Party the related Mortgage File or Files. The Custodian
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as the Substituting Party
shall deliver to the Trustee with respect to any Deleted Mortgage Loan to be
released pursuant hereto.
(d) In addition, the Trustee shall cause the Substituting Party to obtain
at its own expense and deliver to the Trustee an Opinion of Counsel to the
effect that such substitution (either specifically or as a class of
transactions) shall not cause (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(l) of the Code or on "contributions after
the Startup Date" under Section 860G(d)(l) of the Code, or (b) any REMIC created
hereunder to fail to qualify as a REMIC at any time that any Certificate is
outstanding. If such Opinion of Counsel can not be delivered, then such
substitution may only be effected at such time as the required Opinion of
Counsel can be given.
SECTION 2.11 Granting Clause.
(a) It is intended that the conveyance of the Mortgage Loans by the Seller
to the Depositor and by the Depositor to the Trustee for the benefit of the
Certificateholders, as provided for in Sections 2.1 and 2.2, be construed as a
sale of the Mortgage Loans and other assets in the Trust Fund by the Seller to
the Depositor and by the Depositor to the Trustee for the benefit of the
Certificateholders. Further, it is not intended that any such conveyances be
deemed a pledge of the Mortgage Loans by the Seller to the Depositor to secure a
debt or other obligation of the Seller, or a pledge of the Mortgage Loans by the
Depositor to the Trustee for the benefit of the Certificateholders to secure a
debt or other obligation of the Depositor. However, in the event that the
Mortgage Loans are held to be property of the Seller or the Depositor or if for
any reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans and other assets in the Trust Fund, 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 UCC;
(ii) the conveyances provided for in Sections 2.1 and 2.2 shall be
deemed a grant by the Seller to the Depositor, and by the Depositor to the
Trustee for the benefit of the Certificateholders, as the case may be, of
(1) a security interest in all of the Seller's right and Depositor's right,
as applicable, (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the
Mortgage Loans, including the Mortgage Notes, the Mortgages, any related
insurance policies and
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all other documents in the related Mortgage Files, (B) all amounts payable
pursuant to the Mortgage Loans in accordance with the terms thereof and (C)
any and all general intangibles consisting of, arising from or relating to
any of the foregoing, and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all Liquidation Proceeds, all
Insurance Proceeds and all amounts from time to time held or invested in
the Distribution Account and the Custodial Account, whether in the form of
cash, instruments, securities or other property and (2) an assignment by
the Seller to the Depositor and by the Depositor to the Trustee for the
benefit of the Certificateholders of any security interest in any and all
of the Seller's and Depositor's right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in
and to the property described in the foregoing clauses (1)(A) through (C);
(iii) the possession by the Trustee, the Custodian or any other agent
of the Trustee of Mortgage Notes, 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 any other UCC
(including, without limitation, Sections 9-313, 8-313 or 8-321 thereof);
and
(iv) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Issuing Entity for the purpose of perfecting such
security interest under applicable law.
(b) The Seller and the Depositor shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans
and the other property of the Trust Fund, 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 this Agreement. Without
limiting the generality of the foregoing, the Seller and the Depositor shall
prepare and file any UCC financing statements that are necessary to perfect the
Depositor's and the Trustee's security interest in or lien on the Mortgage
Loans, as evidenced by an Officer's Certificate of the Seller and the Depositor,
and furnish a copy of each such filed financing statement to the Trustee. The
Seller and the Depositor shall prepare and file, at the expense of the Trust
Fund, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee's security
interest in or lien on the Mortgage Loans for the benefit of the
Certificateholders, including without limitation (i) continuation statements,
and (ii) to the extent that a Responsible Officer of the Depositor has received
written notice of such change or transfer, such other statements as may be
occasioned by (A) any change of name of the Seller, the Depositor or the
Trustee, (B) any change of location of the domicile or the chief executive
office of the Seller or the Depositor, or (C) any transfer of any interest of
the Seller or the Depositor in any Mortgage Loan.
(c) Neither the Seller nor the Depositor shall organize under the law of
any jurisdiction other than the State under which each is organized as of the
Closing Date (whether
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changing its jurisdiction of organization or organizing under an additional
jurisdiction) without giving 30 days prior written notice of such action to the
Servicer and the Trustee. Before effecting such change, each of the Seller or
the Depositor proposing to change its jurisdiction of organization shall prepare
and file in the appropriate filing office any financing statements or other
statements necessary to continue the perfection of the interests of its
transferees, including the Trustee for the benefit of the Certificateholders, in
the Mortgage Loans.
(d) Neither the Seller nor the Depositor shall take any action inconsistent
with the sale by the Seller or the Depositor of its right, title and interest in
and to the Mortgage Loans or Trust Fund and shall indicate or shall cause to be
indicated in its records and records held on its behalf that ownership of each
Mortgage Loan and the other property of the Trust Fund is held by the Trustee
for the benefit of the Certificateholders. In addition, the Seller and the
Depositor shall respond to any inquiries from third parties with respect to
ownership of a Mortgage Loan or any other property of the Trust Fund by stating
that it is not the owner of such Mortgage Loan and that ownership of such
Mortgage Loan or other property of the Trust Fund is held by the Trustee for the
benefit of the Certificateholders.
SECTION 2.12 Purpose.
(a) The permitted activities of the Issuing Entity shall be limited to the
following:
(i) to issue Certificates pursuant to the Agreement and to sell the
Certificates;
(ii) to pay the organizational, start-up and transactional expenses of
the Issuing Entity;
(iii) to assign, grant, transfer, pledge, sell and convey the Mortgage
Loans pursuant to this Agreement;
(iv) to enter into and perform its obligations under this Agreement;
(v) to engage in those activities, including entering into agreements
that are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(vi) subject to compliance with this Agreement, to engage in such
other activities as may be required in connection with the conservation of
the Trust Fund and the making of distributions to the Certificateholders.
(b) The Issuing Entity shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement. No amendment pursuant to Section 15.1 shall change the
permitted activities of the Issuing Entity.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Seller.
The Seller hereby represents and warrants to the other parties hereto as of
the Closing Date that:
(a) The Seller has been duly organized and is validly existing as a limited
liability company in good standing under the laws of Maryland, with full power
and authority to own its assets and conduct its business as presently being
conducted.
(b) The Seller has the full entity power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the sale of the
Mortgage Loans by the Seller, the transactions contemplated hereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with or result in a breach of any of the terms, the certificate of
incorporation, bylaws or any legal restriction or any agreement or instrument to
which the Seller is now a party or by which it is bound, or constitute a default
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Seller or its property is subject, or impair the ability of
the Issuing Entity to realize on the Mortgage Loans, or impair the value of the
Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement or
the sale of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Seller which, either individually or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or
contemplated herein, or which would be likely to impair materially the ability
of the Seller to perform under the terms of this Agreement.
47
(g) The transfer, assignment and conveyance of the Mortgage Loans by the
Seller pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
(h) The Seller is solvent and the sale of the Mortgage Loans will not cause
the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken
to hinder, delay or defraud any of the Seller's creditors.
(i) The consideration received by the Seller upon the sale of the Mortgage
Loans under this Agreement constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans.
(j) The Seller has determined that the disposition of the Mortgage Loans
from Seller to Depositor pursuant to this Agreement will be afforded sale
treatment for accounting purposes, all on a non-consolidated basis.
(k) The Seller has not transferred the Mortgage Loans to the Depositor with
any intent to hinder, delay or defraud any of its creditors.
(l) The Seller has not dealt with any broker, investment banker, agent or
other Person that may be entitled to any commission or compensation in the
connection with the sale of the Mortgage Loans.
(m) Immediately prior to the transfer by the Seller to the Depositor of
each Mortgage Loan, the Seller had good and equitable title to each Mortgage
Loan, subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of any
nature. On and after the transfer by the Seller to the Depositor of each
Mortgage Loan, the Depositor will have good and equitable title to each Mortgage
Loan, subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of any
nature.
(n) None of this Agreement, the information set forth in the Mortgage Loan
Schedules attached hereto and the information contained in the related
electronic data file delivered to the Master Servicer by the Seller, nor any
statement, report or other document furnished or to be furnished by or on behalf
of the Seller pursuant to this Agreement or in connection with the transactions
contemplated hereby, contains any untrue statement of material fact or omits to
state a material fact necessary to make the statements contained therein not
misleading.
(o) The information about the Seller under the heading "The Sponsor" in the
Prospectus relating to the Seller, as of the respective dates of the preliminary
prospectus supplement and the prospectus supplement, and as of the Closing Date,
does not include an untrue statement of a material fact and does not omit to
state a material fact, with respect to the statements made, necessary in order
to make the statements in light of the circumstances under which they were made
not misleading.
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SECTION 3.2 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the other parties hereto as
of the Closing Date that:
(a) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of Delaware, with full power and
authority to own its assets and conduct its business as presently being
conducted.
(b) The Depositor has the full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Depositor and the
consummation of the transactions contemplated hereby have been duly and validly
authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the sale of the
Mortgage Loans by the Depositor, the transactions contemplated hereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with or result in a breach of any of the terms, certificate of
incorporation, bylaws or any legal restriction or any agreement or instrument to
which the Depositor is now a party or by which it is bound, or constitute a
default or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Depositor or its property is subject, or impair the
ability of the Issuing Entity to realize on the Mortgage Loans, or impair the
value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of or compliance by the Depositor with this
Agreement or the sale of the Mortgage Loans is evidenced by the consummation of
the transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Depositor which, either individually or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Depositor, or in
any material impairment of the right or ability of the Depositor to carry on its
business substantially as now conducted, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or to be
contemplated herein, or which would be likely to impair materially the ability
of the Depositor to perform under the terms of this Agreement.
49
(g) The transfer, assignment and conveyance of the Mortgage Loans by the
Depositor pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction.
(h) The Depositor is solvent and the sale of the Mortgage Loans will not
cause the Depositor to become insolvent. The sale of the Mortgage Loans is not
undertaken to hinder, delay or defraud any of the Depositor's creditors.
(i) The consideration received by the Depositor upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans.
(j) The Depositor has determined that the disposition of the Mortgage Loans
from Depositor to the Issuing Entity pursuant to this Agreement will be afforded
sale treatment for accounting purposes, all on a non-consolidated basis.
(k) The Depositor has not transferred the Mortgage Loans to the Trust Fund
with any intent to hinder, delay or defraud any of its creditors.
(l) The Depositor has not dealt with any broker, investment banker, agent
or other Person that may be entitled to any commission or compensation in the
connection with the sale of the Mortgage Loans.
(m) Immediately prior to the transfer by the Depositor to the Trust Fund of
each Mortgage Loan, the Depositor had good and equitable title to each Mortgage
Loan (insofar as such title was conveyed to it by the Seller), subject to no
prior lien, claim, participation interest, mortgage, security interest, pledge,
charge or other encumbrance or other interest of any nature. On and after the
transfer by the Depositor to the Trust Fund of each Mortgage Loan, the Issuing
Entity will have good and equitable title to each Mortgage Loan (insofar as such
title was conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or other
encumbrance or other interest of any nature.
SECTION 3.3 Representations and Warranties of the Servicer.
The Servicer hereby represents and warrants to the other parties hereto as
of the Closing Date that:
(a) The Servicer is a national banking association, duly organized and
validly existing in good standing under the laws of the United States of
America, with full power and authority to own its assets and conduct its
business as presently being conducted.
(b) The Servicer has the full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized.
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(c) This Agreement constitutes a legal, valid and binding obligation of the
Servicer, enforceable against the Servicer in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement will conflict with or result in a breach of any of
the terms, articles of incorporation, or by-laws or any legal restriction or any
agreement or instrument to which the Servicer is now a party or by which it is
bound, or constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property is
subject, or impair the ability of the Issuing Entity to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of or compliance by the Servicer with this Agreement
as evidenced by the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Servicer which, either individually or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer, or in any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or to be
contemplated herein, or which would be likely to impair materially the ability
of the Servicer to perform under the terms of this Agreement.
(g) The Servicer is an approved servicer of conventional residential
mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac, with the facilities, procedures,
and experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans. The Servicer is in good standing to service
mortgage loans for Xxxxxx Mae and Xxxxxxx Mac, and no event has occurred,
including but not limited to a change in insurance coverage, which would make
the Servicer unable to comply with Xxxxxx Mae or Xxxxxxx Mac eligibility
requirements.
(h) The Servicer acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Servicer, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement.
(i) The consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Servicer, which is in the business of
servicing loans.
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(j) There has been no material adverse change in the business, operations,
financial condition or assets of the Servicer since the date of the Servicer's
most recent financial statements.
(k) The Servicer is not aware and has not received notice that any default,
early amortization or other performance triggering event has occurred to any
other securitization due to any act or failure to act of the Servicer.
(l) The Servicer has not been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger.
(m) No material noncompliance with the applicable Servicing Criteria with
respect to other securitizations of residential mortgage loans involving the
Servicer as servicer has been disclosed or reported by the Servicer.
(n) No material changes to the Servicer's policies or procedures with
respect to the servicing function it will perform under this Agreement for
mortgage loans of a type similar to the Mortgage Loans have occurred during the
three-year period immediately preceding the date hereof.
(o) There are no aspects of the Servicer's financial condition that could
have a material adverse effect on the performance by the Servicer of its
servicing obligations under this Agreement.
(p) There are no material legal or governmental proceedings pending (or
known to be contemplated) against the Servicer.
(q) There are no affiliations, relationships or transactions relating the
Servicer with respect to any securitization transaction and any party thereto
identified by the Depositor of a type described in Item 1119 of Regulation AB.
SECTION 3.4 Representations and Warranties of the Master Servicer and
Securities Administrator.
[ - ] hereby represents and warrants to the other parties hereto as of the
Closing Date that:
(a) It is a national banking association, duly organized and validly
existing in good standing under the laws of the United States of America, with
full power and authority to own its assets and conduct its business as presently
being conducted.
(b) It has the full corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder, and the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Master Servicer or
the Securities Administrator and the consummation of the transactions
contemplated hereby have been duly and validly authorized.
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(c) This Agreement constitutes a legal, valid and binding obligation of the
Master Servicer and Securities Administrator, enforceable against each in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement will conflict with or result in a breach of any of
the terms, articles of incorporation or by-laws or any legal restriction or any
agreement or instrument to which the Master Servicer or the Securities
Administrator are now a party or by which it is bound, or constitute a default
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Master Servicer or the Securities Administrator or their
respective properties are subject, or impair the ability of the Issuing Entity
to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer and the Securities Administrator of or
compliance by the Master Servicer and Securities Administrator with this
Agreement as evidenced by the consummation of the transactions contemplated by
this Agreement, or if required, such consent, approval, authorization or order
has been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its
knowledge threatened against the Master Servicer or the Securities Administrator
which, either individually or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Master Servicer or the Securities Administrator, or in any
material impairment of the right or ability of the Master Servicer or the
Securities Administrator to carry on its business substantially as now
conducted, or which would draw into question the validity of this Agreement or
the Mortgage Loans or of any action taken or to be contemplated herein, or which
would be likely to impair materially the ability of the Master Servicer or the
Securities Administrator to perform under the terms of this Agreement.
(g) At such time as the Master Servicer is the successor servicer, it is an
approved servicer of conventional residential mortgage loans for Xxxxxx Mae and
Xxxxxxx Mac, with the facilities, procedures, and experienced personnel
necessary for the sound servicing of mortgage loans of the same type as the
Mortgage Loans. At such time the Master Servicer is the successor servicer, the
Master Servicer or an Affiliate of the Master Servicer is a HUD-approved
mortgagee pursuant to Section 203 of the National Housing Act and is in good
standing to service mortgage loans for Xxxxxx Mae and Xxxxxxx Mac, and no event
has occurred, including but not limited to a change in insurance coverage, which
would make it or any of its Affiliates unable to comply with Xxxxxx Mae or
Xxxxxxx Mac eligibility requirements or which would require notification to
either Xxxxxx Mae or Xxxxxxx Mac.
(h) The consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Master Servicer and Securities
Administrator.
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(i) It has not been terminated as master servicer or securities
administrator in a residential mortgage loan securitization, either due to a
master servicing default or other inability to perform the required services.
(j) No material noncompliance with the applicable Servicing Criteria with
respect to other securitizations of residential mortgage loans involving the
Master Servicer or Securities Administrator as servicer has been disclosed or
reported by the Master Servicer.
(k) No material changes to the Master Servicer's policies or procedures
with respect to the master servicing function it will perform under this
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the date hereof.
(l) There are no aspects of the Master Servicer's financial condition that
could have a material adverse effect on the performance by it of its master
servicing obligations under this Agreement.
(m) There are no material legal or governmental proceedings pending (or
known to be contemplated) against the Master Servicer.
(n) There are no affiliations, relationships or transactions relating the
Master Servicer with respect to this transaction and any party thereto
identified by the Depositor of a type described in Item 1119 of Regulation AB.
ARTICLE IV
SERVICING OF THE MORTGAGE LOANS
SECTION 4.1 General.
(a) The Servicer shall service and administer the Mortgage Loans on behalf
of the Issuing Entity in accordance with this Agreement and shall have full
power and authority, acting alone or through one or more subservicers, to do any
and all things in connection with such servicing and administration that the
Servicer may deem necessary or desirable, consistent with the terms of this
Agreement and with Accepted Servicing Practices.
(b) Subject to the terms of this Agreement, the Servicer may waive, modify
or vary any term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any Mortgagor
if in the Servicer's reasonable and prudent determination, consistent with
Accepted Servicing Practices, such waiver, modification, postponement or
indulgence is not materially adverse to the Issuing Entity or the
Certificateholders; provided, however, the Servicer shall not make any future
advances of funds to the Mortgagor with respect to a Mortgage Loan or extend the
Due Dates for Scheduled Monthly Payments on a Mortgage Note past the Due Period
with respect to the Maturity Date. Further, the Servicer shall not, unless the
Mortgagor is in default with respect to the Mortgage Loan or such default is, in
the judgment of the Servicer, reasonably foreseeable, permit any modification
with respect to any Mortgage Loan that would (i) change the Mortgage Rate, defer
or forgive the payment thereof of any principal or interest payments, reduce the
Scheduled Principal Balance (except for actual payments of principal) or extend
the final maturity date with
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respect to such Mortgage Loan, (ii) affect adversely the status of any REMIC as
a REMIC or (iii) cause any REMIC to be subject to a tax on "prohibited
transactions" or "contributions" pursuant to the REMIC Provisions. Further, the
Servicer shall not permit any modification with respect to any Mortgage Loan
that would both (x) effect an exchange or reissuance of such Mortgage Loan under
Section 1.860G 2(b) of the Treasury regulations and (y) cause any REMIC
constituting part of the Trust Fund to fail to qualify as a REMIC under the Code
or the imposition of any tax on "prohibited transactions" or "contributions"
after the Startup Day under the REMIC Provisions. In the event of any
modification that permits the deferral of interest or principal payments on any
Mortgage Loan, the Servicer shall, on the Business Day immediately preceding the
Servicer Remittance Date in any month in which any such principal or interest
payment has been deferred, deposit as a Monthly Advance in the Custodial Account
from its own funds the difference between (i) such month's principal and one
month's interest at the Mortgage Loan Remittance Rate on the unpaid principal
balance of such Mortgage Loan and (ii) the amount paid by the Mortgagor. The
Servicer shall be entitled to reimbursement for such Advances to the same extent
as for all other Monthly Advances. Without limiting the generality of the
foregoing, the Servicer shall continue, and is hereby authorized and empowered,
to execute and deliver on behalf of itself and the Issuing Entity, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. If reasonably required by
the Servicer, the Trustee shall furnish the Servicer with any powers of attorney
(which are acceptable to the Trustee) and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
(c) Subject to Section 4.3 the Servicer may arrange for the subservicing of
any Mortgage Loan it services by a Servicer pursuant to a subservicing
agreement; provided, however, that such subservicing arrangement and the terms
of the related subservicing agreement must provide for the servicing of such
Mortgage Loan in a manner consistent with the servicing arrangements
contemplated hereunder. The Servicer shall be solely liable for all fees owed to
the Subservicer under any subservicing agreement, regardless of whether the
Servicer's compensation hereunder is adequate to pay such fees. Notwithstanding
the provisions of any subservicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
the Servicer shall remain obligated and liable to the Issuing Entity for the
servicing and administration of the Mortgage Loans it services in accordance
with the provisions of this Agreement without diminution of such obligation or
liability by virtue of such subservicing agreements or arrangements or by virtue
of indemnification from the Servicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
those Mortgage Loans. All actions of each Subservicer performed pursuant to the
related subservicing agreement shall be performed as agent of the Servicer with
the same force and effect as if performed directly by the Servicer. For purposes
of this Agreement, the Servicer shall be deemed to have received any
collections, recoveries or payments with respect to the Mortgage Loans it
services that are received by a subservicer regardless of whether such payments
are remitted by the Subservicer to the Servicer. Any subservicing agreement
entered into by the Servicer shall provide that it may be assumed or terminated
by the Master Servicer, if the Master Servicer has assumed the duties of the
Servicer, or by any successor servicer, at the Master Servicer's or successor
servicer's option, as applicable, without cost or obligation to the assuming or
terminating party or its assigns. Any
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subservicing agreement, and any other transactions or services relating to the
Mortgage Loans involving a Subservicer, shall be deemed to be between the
Servicer and such subservicer alone, and the Master Servicer shall not be deemed
a party thereto and shall have no claims or rights of action against, rights,
obligations, duties or liabilities to or with respect to the Subservicer or its
officers, directors or employees.
SECTION 4.2 Use of Subservicers and Subcontractors.
The Servicer shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Servicer as servicer under
this Agreement unless the Servicer complies with the provisions of Section
4.2(a). The Servicer shall not hire or otherwise utilize the services of any
Subcontractor, and shall not permit any Subservicer to hire or otherwise utilize
the services of any Subcontractor, to fulfill any of the obligations of the
Servicer as servicer under this Agreement unless the Servicer complies with the
provisions of Section 4.2(a) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent of the
Depositor or the Master Servicer to the utilization of any Subservicer. The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Depositor to comply with the provisions of
this Section, with Item 1108 of Regulation AB, and with Sections 5.1, 5.2, 5.9
and 6.7 of this Agreement to the same extent as if such Subservicer were the
Servicer, and to provide the information required with respect to such
Subservicer under Section 6.7(a) of this Agreement. The Servicer shall be
responsible for obtaining from each Subservicer and delivering to the Depositor
and the Master Servicer any servicer Compliance Statement required to be
delivered by such Subservicer under Section 5.2, any Assessment of Compliance
and Attestation Report required to be delivered by such Subservicer under
Section 5.1, and any certification required to be delivered to the Person that
will be responsible for signing the Back-Up SOX Certification under Section 5.3
as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent of the
Depositor or Master Servicer to the utilization of any Subcontractor. The
Servicer shall promptly upon request provide to the Master Servicer and the
Depositor (or any designee of the Depositor, such as an administrator) a written
description (in form and substance satisfactory to the Depositor and the Master
Servicer) of the role and function of each Subcontractor utilized by the
Servicer or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in Assessments
of Compliance provided by each Subcontractor identified pursuant to this Section
4.2(a).
(c) As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Depositor to comply with
the provisions of Sections 5.1 and 5.9 of this Agreement to the same extent as
if such Subcontractor were the Servicer. The Servicer shall be responsible for
obtaining from each Subcontractor and delivering to the Depositor any assessment
of
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compliance and attestation and any other certifications required to be delivered
by such Subcontractor under Section 5.1, in each case as and when required to be
delivered.
SECTION 4.3 Collection of Mortgage Loan Payments.
(a) Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full or the Mortgage Loans have been fully
liquidated (with respect to Mortgage Loans that remain subject to this
Agreement), the Servicer shall proceed diligently to collect all payments due
under each of the Mortgage Loans when the same shall become due and payable, and
shall to the extent such procedures shall be consistent with this Agreement and
the terms and provisions of any applicable mortgage insurance policy, follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account.
(b) If any Mortgage Loan is more than 60 days delinquent, the Servicer
immediately shall inspect the Mortgaged Property and shall conduct subsequent
inspections in accordance with Accepted Servicing Practices or as may be
required by any primary mortgage guaranty insurer. The Servicer shall keep a
written report of each such inspection.
SECTION 4.4 Realization Upon Defaulted Mortgage Loans.
(a) The Servicer shall use efforts consistent with Accepted Servicing
Practices to foreclose upon or otherwise comparably convert the ownership of
such Mortgage Properties as come in to and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 4.3. The Servicer shall realize upon defaulted Mortgage
Loans in such manner as will maximize the receipt of principal and interest by
the Issuing Entity, taking into account, among other things, the timing of
foreclosure proceedings, provided that the Servicer is expressly prohibited from
selling Mortgage Loans as an alternative to foreclosure or deed-in-lieu thereof.
Foreclosure or comparable proceedings shall be initiated within 120 days of
default for Mortgaged Properties for which no satisfactory arrangements can be
made for collection of delinquent payments unless prevented by statutory
limitations or states whose insolvency laws prohibit such actions within such
timeframe. The Servicer shall from its own funds make all necessary and proper
Servicing Advances; provided, however, that the Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration or preservation of any Mortgaged Property, unless it shall determine
(i) that such preservation, restoration and/or foreclosure will increase the net
proceeds of liquidation of the Mortgage Loan to the Issuing Entity after
reimbursement for such expenses and (ii) that such expenses will be recoverable
by it either through Liquidation Proceeds (respecting which it shall have
priority for purposes of withdrawals from the Custodial Account pursuant to
Section 4.6) or through Insurance Proceeds (respecting which it shall have
similar priority).
(b) If the Servicer has knowledge that a Mortgaged Property that the
Servicer is contemplating acquiring in foreclosure or by deed-in-lieu of
foreclosure is located within a one-mile radius of any site with environmental
or hazardous waste risks known to the Servicer, the Servicer will, prior to
acquiring the Mortgaged Property, consider such risks and only take action
57
in accordance with Accepted Servicing Practices. The Servicer shall not have any
obligation to purchase any Mortgaged Property at any foreclosure sale.
SECTION 4.5 Establishment of and Deposits to Custodial Account.
(a) The Servicer shall establish and maintain one or more accounts (the
"CUSTODIAL ACCOUNT"), designated "Custodial Account of [Name of Servicer], as
Servicer f/b/o Luminent Mortgage Trust 200_-_." The Custodial Account shall be
established as an Eligible Account, and any funds therein shall at all times be
insured to the fullest extent allowed by applicable law. All funds required to
be deposited in the Custodial Account shall be held in trust for the Trustee
until withdrawn in accordance with Section 4.6. The Servicer shall segregate and
hold all funds collected and received pursuant to a Mortgage Loan separate and
apart from any of its own funds and general assets. Within five Business Days
following any request of the Master Servicer, the Servicer shall provide the
Master Servicer with written confirmation of the existence of such Custodial
Account.
(b) Funds on deposit in the Custodial Account may be invested at the
direction of the Servicer, but only in Eligible Investments that mature not
later than the Business Day prior to the Servicer Remittance Date next following
the date of such investment. All income and gain realized from any such
investment shall be for the benefit of the Servicer and shall be subject to its
withdrawal or order from time to time. The amount of any losses incurred in
respect of any such investments shall be deposited in the Custodial Account by
the Servicer out of its own funds immediately as such losses are realized.
(c) The Servicer shall deposit in the Custodial Account within two Business
Days of Servicer's receipt, and retain therein, the following collections
received by the Servicer and payments made by the Servicer after the Cut-off
Date (other than payments of principal and interest due on or before the Cut-off
Date), or prior to the Cut-off Date but allocable to a period subsequent
thereto:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments (including Prepayment Premiums paid by
any Mortgagor or by the Servicer pursuant to Section 4.18 of this
Agreement);
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds (net of Liquidation Expenses);
(iv) all Insurance Proceeds, including amounts required to be
deposited pursuant to Section 4.11 (other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to a Mortgagor in accordance with Section 4.14 and
Accepted Servicing Practices) and Section 4.12;
(v) all Condemnation Proceeds which are not applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor in
accordance with Section 4.15 and Accepted Servicing Practices;
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(vi) any amounts required to be deposited in the Custodial Account
pursuant to Sections 2.1(b) or 4.21;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan and all amounts required to be deposited by the Servicer in
connection with a shortfall in principal amount of any Qualified Substitute
Mortgage Loan pursuant to Section 2.9;
(viii) with respect to each Principal Prepayment and any Prepayment
Interest Shortfall, the Compensating Interest Payment (to be paid by the
Servicer out of its own funds);
(ix) any amounts received with respect to or related to any REO
Property and all REO Disposition Proceeds pursuant to Section 4.15;
(x) any amounts required to be deposited by the Servicer pursuant to
Section 4.12 in connection with the deductible clause in any blanket hazard
insurance policy; and
(xi) any other amounts required to be deposited into the Custodial
Account hereunder.
(d) No later than the Servicer Remittance Date, the Servicer shall deposit
in the Custodial Account from its own funds or from amounts held for future
remittance an amount equal to all Monthly Advances with respect to the related
Determination Date (with interest adjusted to the Mortgage Loan Remittance
Rate). Any amounts held for future remittance and so used shall be replaced by
the Servicer by deposit in the Custodial Account on or before the next Servicer
Remittance Date. The Servicer's obligation to make such Monthly Advances as to
any Mortgage Loan will continue through the later of (i) the last Scheduled
Monthly Payment due prior to the payment in full of the Mortgage Loan, or (ii)
the last Servicer Remittance Date prior to the Servicer Remittance Date for the
remittance of all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds, Condemnation Proceeds and REO Disposition
Proceeds) with respect to the Mortgage Loan; provided, however, that any such
obligation under this Section 4.5(d) shall cease with respect to a Mortgage Loan
if the Servicer determines, in its reasonable good faith judgment, that Monthly
Advances with respect to such Mortgage Loan are Non-recoverable Advances. In the
event that the Servicer determines that any such Monthly Advances are
Non-recoverable Advances, the Servicer shall provide the Master Servicer and the
Securities Administrator with a certificate signed a Responsible Officer of the
Servicer evidencing such determination and setting forth the basis for such
determination.
(e) The foregoing requirements for deposit into the Custodial Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
assumption fees and other ancillary income (other than Prepayment Premiums and
Non-Mortgagor Prepayment Premium Payment Amounts), to the extent permitted by
Section 4.3, need not be deposited by the Servicer into the Custodial Account.
In the event that the Servicer shall remit any amount not required to be
remitted and not otherwise subject to withdrawal pursuant to Section 4.6, it may
at any time withdraw such amount from the Custodian Account, any provision
herein to the contrary
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notwithstanding. In no event shall the Securities Administrator, the Master
Servicer or the Trustee incur liability for withdrawals from the Custodian
Account at the direction of the Servicer.
SECTION 4.6 Permitted Withdrawals From Custodial Account.
The Servicer may, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(a) to make remittances to the Securities Administrator in the amounts and
in the manner provided for in Section 4.24;
(b) to reimburse itself for unreimbursed Monthly Advances, the Servicer's
right to reimburse itself pursuant to this subclause (b) being limited to
amounts received on the related Mortgage Loan which represent late payments of
principal and/or interest respecting which any such advance was made, it being
understood that in the case of any such reimbursement the Servicer's right
thereto shall be prior to the rights of the Issuing Entity, except that, where
the Servicer is required to repurchase a Mortgage Loan pursuant to Section 4.21,
the Servicer's right to such reimbursement shall be subsequent to the payment to
the Issuing Entity of the Repurchase Price pursuant to such Sections and all
other amounts required to be paid to the Issuing Entity with respect to such
Mortgage Loan;
(c) to reimburse itself for unreimbursed Servicing Advances and for any
unpaid Servicing Fees, the Servicer's right to reimburse itself pursuant to this
subclause (c) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such other
amounts as may be collected by the Servicer from the Mortgagor or otherwise
relating to the Mortgage Loan, it being understood that in the case of any such
reimbursement the Servicer's right thereto shall be prior to the rights of the
Issuing Entity, except that where the Servicer is required to repurchase a
Mortgage Loan pursuant to Section 4.21, in which case the Servicer's right to
such reimbursement shall be subsequent to the payment to the Issuing Entity of
the Repurchase Price pursuant to such Sections and all other amounts required to
be paid to the Issuing Entity with respect to such Mortgage Loan;
(d) to pay itself interest earned on funds deposited in the Custodial
Account to the extent such amount was previously credited;
(e) to pay any amount required to be paid pursuant to Section 4.15 related
to any REO Property, it being understood that, in the case of any such
expenditure or withdrawal related to a particular REO Property, the amount of
such expenditure or withdrawal from the Custodial Account shall be limited to
amounts on deposit in the Custodial Account with respect to the related REO
Property;
(f) to reimburse itself for any Non-recoverable Advances after liquidation
of the Mortgaged Property not otherwise reimbursed above;
(g) to remove funds inadvertently placed in the Custodial Account by the
Servicer;
(h) to reimburse itself any Prepayment Interest Excess; and
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(i) to clear and terminate the Custodial Account upon the termination of
this Agreement.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Custodial Account.
SECTION 4.7 Establishment of and Deposits to Escrow Account.
(a) The Servicer shall establish and maintain one or more accounts (an
"ESCROW ACCOUNT"), designated "Escrow Account of [Name of Servicer], as Servicer
f/b/o Luminent Mortgage Trust 200_-_ and various Mortgagors." Each Escrow
Account shall be established as an Eligible Account, and any funds therein shall
at all times be insured to the fullest extent allowed by applicable law. The
Servicer shall segregate and hold all funds collected and received pursuant to a
Mortgage Loan separate and apart from any of its own funds and general assets.
Within five Business Days following any request of the Master Servicer, the
Servicer shall provide the Master Servicer with written confirmation of the
existence of such Custodial Account.
(b) To the extent permitted by law, funds on deposit in the Escrow Account
may be invested at the direction of the Servicer. The Servicer shall be entitled
to retain any interest paid on funds deposited in the Escrow Account, other than
interest on escrowed funds required by law to be paid to any Mortgagor. To the
extent required by law, the Servicer shall pay interest on escrowed funds to a
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
(c) The Servicer shall deposit in the Escrow Account within two Business
Days of Servicer's receipt, and retain therein, the following collections
received by the Servicer:
(i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property.
(d) The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.8.
SECTION 4.8 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account may be made by the Servicer only:
(a) to effect timely payments of ground rents, taxes, assessments, water
rates, condominium charges, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage;
61
(b) to reimburse the Servicer for any Servicing Advances made by the
Servicer pursuant to Section 4.9 with respect to a related Mortgage Loan, but
only from amounts received on the related Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(c) to refund to any Mortgagor any funds found to be in excess of the
amounts required under the terms of the related Mortgage Loan;
(d) for transfer to the Custodial Account for application to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
related Mortgage and Mortgage Note;
(e) for application to the restoration or repair of the Mortgaged Property
in accordance with the procedures outlined in Section 4.15;
(f) to pay to the Servicer, or any Mortgagor to the extent required by law,
any interest paid on the funds deposited in the Escrow Account;
(g) to remove funds inadvertently placed in the Escrow Account by the
Servicer; or
(h) to clear and terminate the Escrow Account on the termination of this
Agreement.
SECTION 4.9 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Servicer shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates,
sewer rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of fire and hazard insurance coverage and shall obtain,
from time to time, all bills for the payment of such charges (including renewal
premiums) and shall effect payment thereof prior to the applicable penalty or
termination date, employing for such purpose deposits of the Mortgagor in the
Escrow Account which shall have been estimated and accumulated by the Servicer
in amounts sufficient for such purposes, as allowed under the terms of the
Mortgage. The Servicer assumes full responsibility for the timely payment of all
such bills and shall effect timely payment of all such charges irrespective of
each Mortgagor's faithful performance in the payment of same of the making of
the Escrow Payments, and the Servicer shall make advances from its own funds to
effect such payments, which advances shall constitute Servicing Advances
hereunder; provided, however, that the Servicer shall be required to so advance
only to the extent that the Servicer, in its reasonable good faith judgment,
believes the Servicing Advance to be recoverable from Insurance Proceeds or
Liquidation Proceeds or otherwise. To the extent that a Mortgage does not
provide for Escrow Payments, the Servicer shall use its reasonable efforts in
accordance with Accepted Servicing Practices to determine whether any such
payments are made by the Mortgagor at the time they first become due. The
Servicer shall make Servicing Advances from its own funds to effect such
delinquent payments within such time period as will avoid the loss of the
related Mortgaged Property by foreclosure of a tax or other lien. The costs
incurred by the Servicer, if any, in effecting the timely payments of taxes and
assessments on the Mortgaged Properties and related insurance premiums shall not
be added to the Scheduled Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit.
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SECTION 4.10 Transfer of Custodial Account or Escrow Account.
The Servicer may transfer the Custodial Account or the Escrow Account to a
different Eligible Account from time to time; provided, however, that the
Servicer shall give notice to the Master Servicer of any proposed change of the
location of either Account not later than ten Business Days prior to any change
thereof.
SECTION 4.11 Mortgaged Property Insurance.
(a) The Servicer shall cause to be maintained for each Mortgage Loan hazard
insurance such that all buildings upon the Mortgaged Property are insured by a
generally acceptable insurer acceptable under Accepted Servicing Practices
against loss by fire, hazards of extended coverage and such other hazards as are
customary or required by law in the area where the Mortgaged Property is
located, in an amount which is at least equal to the lesser of (a) 100% of the
maximum insurable value of the improvements securing such Mortgage Loan and (b)
the greater of (i) the outstanding principal balance of the Mortgage Loan and
(ii) an amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer. In the event a hazard
insurance policy shall be in danger of being terminated, or in the event the
insurer shall cease to be acceptable under Accepted Servicing Practices, the
Servicer shall notify the related Mortgagor, and shall use its commercially
reasonable best efforts, as permitted by applicable law, to obtain from another
qualified insurer a replacement hazard insurance policy substantially and
materially similar in all respects to the original policy. In no event, however,
shall a Mortgage Loan be without a hazard insurance policy at any time, subject
only to Section 4.12.
(b) If the related Mortgaged Property is located in an area identified by
the Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration in effect with a generally
acceptable insurance carrier acceptable under Accepted Servicing Practices in an
amount representing coverage equal to the lesser of (a) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (b) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Servicer determines in accordance with applicable law and
under Accepted Servicing Practices that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered in
an amount less than the amount required by the Flood Disaster Protection Act of
1973, as amended, the Servicer shall notify the related Mortgagor to obtain such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within 45 days after such notification, the Servicer
shall immediately force place the required flood insurance on the Mortgagor's
behalf. Any out-of-pocket expenses or advance made by the Servicer on such
force-placed flood insurance coverage shall be deemed a Servicing Advance.
(c) If a Mortgage is secured by a unit in a condominium project, the
Servicer shall verify that the coverage required of the owner's association,
including hazard, flood, liability,
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and fidelity coverage, is being maintained in accordance with Accepted Servicing
Practices, and secure from the owner's association its agreement to notify the
Servicer promptly of any change in the insurance coverage or of any condemnation
or casualty loss that may have a material effect on the value of the Mortgaged
Property as security.
(d) In the event that the Servicer shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant to
the terms of the Mortgage, the Servicer shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property.
(e) All policies required hereunder shall name the Servicer as loss payee
and shall be endorsed with standard mortgagee clauses, without contribution,
which shall provide for at least 30 days prior written notice of any
cancellation, reduction in amount or material change in coverage.
(f) The Servicer shall not interfere with the Mortgagor's freedom of choice
in selecting either an insurance carrier or agent; provided, however, that the
Servicer shall not accept any such insurance policies from insurance companies
unless such companies are acceptable under Accepted Servicing Practices and are
licensed to do business in the jurisdiction in which the Mortgaged Property is
located. The Servicer shall determine that such policies provide sufficient risk
coverage and amounts, that they insure the property owner, and that they
properly describe the property address. The Servicer shall furnish to the
Mortgagor a formal notice of expiration of any such insurance in sufficient time
for the Mortgagor to arrange for renewal coverage by the expiration date.
(g) Pursuant to Section 4.5, any amounts collected by the Servicer under
any such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Servicer's normal servicing procedures as
specified in Section 4.14) shall be deposited in the Custodial Account, subject
to withdrawal pursuant to Section 4.6.
SECTION 4.12 Blanket Mortgage Hazard Insurance.
In the event that the Servicer shall obtain and maintain a blanket policy
insuring against losses arising from fire and hazards covered under extended
coverage on all of the Mortgage Loans, then, to the extent such policy (a) names
the Servicer or the Issuing Entity as loss payee, (b) provides coverage in an
amount equal to the amount required pursuant to Section 4.11 without coinsurance
and (c) otherwise complies with Accepted Servicing Practices and all other
requirements of Section 4.11, it shall conclusively be deemed to have satisfied
its obligations as set forth in Section 4.11. The Servicer shall prepare and
make any claims on the blanket policy as deemed necessary by the Servicer in
accordance with prudent servicing practices. Any amounts collected by the
Servicer under any such policy relating to a Mortgage Loan shall be deposited in
the Custodial Account subject to withdrawal pursuant to Section 4.6. Such policy
may contain a deductible clause, in which case, in the event that there shall
not have been maintained on the related Mortgaged Property a policy complying
with Section 4.11, and there
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shall have been a loss which would have been covered by such policy, the
Servicer shall deposit in the Custodial Account at the time of such loss the
amount not otherwise payable under the blanket policy because of such deductible
clause, such amount to be deposited from the Servicer's funds, without
reimbursement therefor. Upon request of the Master Servicer or the Trustee, the
Servicer shall cause to be delivered to the Master Servicer or the Trustee, as
the case may be, a certified true copy of any such policy.
SECTION 4.13 Fidelity Bond and Errors and Omissions Insurance.
The Servicer shall maintain with responsible companies, at its own expense,
a blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with broad
coverage on all officers, employees and other Persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the Mortgage Loans. Any such Fidelity Bond and Errors and Omissions Insurance
Policy shall be in the form of the Mortgage Banker's Blanket Bond and shall
protect and insure the Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such persons.
Such Fidelity Bond and Errors and Omissions Insurance Policy also shall protect
and insure the Servicer against losses in connection with the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 4.13 requiring such
Fidelity Bond and Errors and Omissions Insurance Policy shall diminish or
relieve the Servicer from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be at least equal to the amounts acceptable to
Xxxxxx Xxx and Xxxxxxx Mac. Upon the request of the Master Servicer or the
Trustee, the Servicer shall cause to be delivered to the Master Servicer or the
Trustee, as the case may be, a certificate of insurance for such Fidelity Bond
and Errors and Omissions Insurance Policy.
SECTION 4.14 Restoration of Mortgaged Property.
The Servicer need not obtain the approval of the Master Servicer or the
Trustee prior to releasing any Insurance Proceeds or Condemnation Proceeds to
any Mortgagor to be applied to the restoration or repair of any Mortgaged
Property if such release is in accordance with Accepted Servicing Practices. For
claims greater than $15,000, at a minimum the Servicer shall comply with the
following conditions in connection with any such release of Insurance Proceeds
or Condemnation Proceeds:
(a) the Servicer shall receive satisfactory independent verification of
completion of repairs and issuance of any required approvals with respect
thereto;
(b) the Servicer shall take all steps necessary to preserve the priority of
the lien of the Mortgage, including, but not limited to requiring waivers with
respect to mechanics' and materialmen's liens;
(c) the Servicer shall verify that the Mortgage Loan is not in default; and
(d) pending repairs or restoration, the Servicer shall place the Insurance
Proceeds or Condemnation Proceeds in the Escrow Account.
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If the Issuing Entity is named as an additional loss payee, the Servicer is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Issuing Entity.
SECTION 4.15 Title, Management and Disposition of REO Property.
(a) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Issuing Entity, or in the event the Issuing
Entity is not authorized or permitted to hold title to real property in the
state where the REO Property is located, or would be adversely affected under
the "doing business" or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an Opinion of Counsel obtained by the Servicer from any
attorney duly licensed to practice law in the state where the REO Property is
located. The Person or Persons holding such title other than the Issuing Entity
shall acknowledge in writing that such title is being held as nominee for the
Issuing Entity.
(b) The Servicer shall manage, conserve, protect and operate each REO
Property for the Issuing Entity solely for the purpose of its prompt disposition
and sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property
consistent with Accepted Servicing Practices. The Servicer shall attempt to sell
the same (and may temporarily rent the same for a period not greater than one
year, except as otherwise provided below) on such terms and conditions as the
Servicer deems to be in the best interest of the Issuing Entity.
(c) In the event that the Trust Fund acquires any REO Property as aforesaid
or otherwise in connection with a default or imminent default on a Mortgage
Loan, the Servicer shall dispose of such REO Property before the end of the
third calendar year beginning after the year of its acquisition by the Trust
Fund for purposes of Section 860G(a)(8) of the Code or, at the expense of the
Trust Fund, request from the Internal Revenue Service, more than 60 days before
the day on which the above-mentioned grace period would otherwise expire, an
extension of the above-mentioned grace period, unless the Servicer obtains an
Opinion of Counsel, addressed to the Servicer and the Trustee, to the effect
that the holding by the Trust Fund of such REO Property subsequent to such
period will not: (i) result in the imposition of any tax on "prohibited
transactions" as defined in Section 860F of the Code; or (ii) cause any REMIC
constituting any part of the Trust Fund to fail to qualify as a REMIC at any
time that any Certificates are outstanding, in which case the Trust Fund may
continue to hold such REO Property (subject to any conditions contained in such
Opinion of Counsel). The Servicer shall be entitled to be reimbursed from the
Custodial Account for any costs incurred in obtaining such Opinion of Counsel,
as provided in Section 4.6.
(d) Subject to compliance with applicable laws and regulations as shall at
any time be in force, and notwithstanding any other provisions of this
Agreement, no REO Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would: (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code; or (ii) subject any Trust REMIC to the
imposition of any federal income taxes on the income earned from such REO
Property, including any taxes imposed by reason of
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Sections 860F or 860G(c) of the Code, unless the Servicer has agreed to
indemnify and hold harmless the Trust Fund with respect to the imposition of any
such taxes.
(e) The Servicer shall manage, conserve, protect and operate each REO
Property for the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the related REMIC of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code,
or any "net income from foreclosure property" which is subject to taxation under
the REMIC Provisions. The Servicer shall cause each REO Property to be inspected
promptly upon the acquisition of title thereto and shall cause each REO Property
to be inspected at least annually thereafter. The Servicer shall make or cause
to be made a written or electronic report of each such inspection. Such reports
shall be forwarded by the Servicer to the Trustee upon request. The Servicer
shall attempt to sell the same (and may temporarily rent the same) on such terms
and conditions as the Servicer deems to be in the best interest of the
Certificateholders.
(f) The Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
(g) The disposition of REO Property shall be carried out by the Servicer at
such price, and upon such terms and conditions, as the Servicer deems to be in
the best interests of the Issuing Entity; provided, however, that any REO
disposition shall be for cash only (unless changes in the REMIC Provisions made
subsequent to the Startup Day allow a sale for other consideration and an
Opinion of Counsel is obtained by the Servicer to the effect that such sale
shall not cause any Trust REMIC to fail to qualify as a REMIC). The proceeds of
sale of the REO Property ("REO DISPOSITION PROCEEDS") shall be promptly
deposited in the Custodial Account. As soon as practical thereafter the expenses
of such sale shall be paid and the Servicer shall reimburse itself for any
related unreimbursed Servicing Advances, unpaid Servicing Fees and unreimbursed
Monthly Advances. On the Servicer Remittance Date immediately following the
Prepayment Period in which such sale proceeds are received, the net cash
proceeds of such sale remaining in the Custodial Account shall be remitted to
the Securities Administrator.
(h) The Servicer shall withdraw from the Custodial Account funds necessary
for the proper operation management and maintenance of the REO Property,
including the cost of maintaining any hazard insurance pursuant to Section 4.11.
The Servicer shall make monthly remittances on each Servicer Remittance Date to
the Securities Administrator of the net cash flow from the REO Property (which
shall equal the revenues from such REO Property net of the expenses described in
this Section 4.15 and of any reserves reasonably required from time to time to
be maintained to satisfy anticipated liabilities for such expenses). With
respect to each REO Property, the Servicer shall account separately for each REO
Property with respect to all funds collected and received in connection with the
operation of such REO Property.
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SECTION 4.16 Mortgage Loan Reports; Real Estate Owned Reports.
(a) Not later than the tenth calendar day (or if such day is not a Business
Day, the succeeding Business Day) of each month, the Servicer shall furnish to
the Depositor, the Master Servicer and the Securities Administrator (i) a
monthly remittance advice in the format agreed upon by the Servicer and the
Master Servicer and a monthly defaulted loan report with the reporting criteria
set forth in Exhibit E (or in such other format mutually agreed to among the
Servicer, the Master Servicer and the Securities Administrator) in respect of
the prior Due Period and related Prepayment Period, and information on realized
losses and gains in the form attached as Exhibit D (or other format agreed to by
the Master Servicer and the Servicer), (ii) all such information required above
on a magnetic tape or other similar media reasonably acceptable to the
Depositor, the Master Servicer and the Securities Administrator, and with
supporting documentation with respect to the report on Exhibit D, and (iii) such
other information with respect to the Mortgage Loans (to the extent such
information is available on the systems of the Servicer) as the Securities
Administrator may reasonably require to perform its obligations under the Owner
Trust Agreement. In addition, by no later than the third Business Day following
the end of each Prepayment Period, the Servicer shall furnish to the Master
Servicer and the Securities Administrator a monthly remittance advice, in form
and substance satisfactory to them, with respect to all Principal Prepayments in
full received during the related Prepayment Period.
(b) The Servicer, upon written request of the Depositor or its agent, shall
on an ongoing basis from information obtained through its servicing of the
Mortgage Loans, provide the Depositor with any information necessary to enable
the Depositor to perform its obligations in connection with any United States
federal, state or local income tax return required to be filed on behalf of the
Issuing Entity by the Depositor. Without limiting the foregoing, the Servicer
shall, following the foreclosure sale or abandonment of any Mortgaged Property,
report such foreclosure or abandonment as required pursuant to Section 6050J of
the Code. The Servicer shall file information reports with respect to the
receipt of mortgage interest received in a trade or business and information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property as required by the Code. Such reports shall be in form and
substance sufficient to meet the reporting requirements imposed by the Code.
(c) The Servicer shall furnish to the Master Servicer on or before the
Servicer Remittance Date each month a statement with respect to any REO Property
covering the operation of such REO Property for the previous month and the
Servicer's efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information as the
Master Servicer shall reasonably request.
SECTION 4.17 Adjustable Rate Mortgage Loans.
(a) With respect to each Mortgage Loan, the Servicer shall adjust the
Mortgage Rate on the related Adjustment Date in compliance with the requirements
of applicable law and the related Mortgage and Mortgage Note. The Servicer shall
execute and deliver any and all necessary notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Rate adjustments. Upon the discovery by the Servicer or the
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receipt of notice from the Master Servicer that the Servicer has failed to
adjust a Mortgage Rate in accordance with the terms of the related Mortgage
Note, the Servicer shall immediately deposit in the Custodial Account from its
own funds the amount of any interest loss or deferral caused thereby.
(b) In the event that the Index for any Mortgage Loan, as specified in the
related Mortgage Note, becomes unavailable for any reason, the Servicer shall
select an alternative index in accordance with the terms of such Mortgage Note
or, if such Mortgage Note does not make provision for the selection of an
alternative index in such event, the Depositor shall, subject to applicable law,
select an alternative index based on information comparable to that used in
connection with the original Index and, in either case, such alternative index
shall thereafter be the Index for such Mortgage Loan.
SECTION 4.18 Prepayment Premiums.
(a) Notwithstanding anything in this Agreement to the contrary, in the
event of a Principal Prepayment in full or in part of a Mortgage Loan, the
Seller may not waive any Prepayment Premium or portion thereof required by the
terms of the related Mortgage Note unless (i) the enforceability thereof shall
have been limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally or (ii) the collectability
thereof shall have been limited due to acceleration in connection with a
foreclosure or other involuntary payment, or (iii) in the Seller's reasonable
judgment as described herein, (x) such waiver relates to a default or a
reasonably foreseeable default, (y) such waiver would maximize recovery of total
proceeds taking into account the value of such Prepayment Premium and related
Mortgage Loan and (z) doing so is standard and customary in servicing similar
Mortgage Loans (including any waiver of a Prepayment Premium in connection with
a refinancing of a Mortgage Loan that is related to a default or a reasonably
foreseeable default). In no event will the Servicer waive a Prepayment Premium
in connection with a refinancing of a Mortgage Loan that is not related to a
default or a reasonably foreseeable default.
(b) If the Servicer waives or does not collect all or a portion of
Prepayment Premium relating to a Principal Prepayment in full or in part due to
any action or omission of the Servicer, other than as provided above, the
Servicer shall deposit the amount of such Prepayment Premium (or such portion
thereof as had been properly waived) into the Custodial Account for distribution
in accordance with the terms of this Agreement. The rights of the Holders of the
Class P Certificates to any such Non-Mortgagor Prepayment Premium Payment Amount
shall not be an asset of any Trust REMIC.
SECTION 4.19 Credit Reporting; Gramm Xxxxx Xxxxxx Act.
(a) The Servicer agrees to fully furnish, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its mortgagor credit files to
Equifax, Experian, and Trans Union Credit Information Servicer on a monthly
basis.
(b) The Servicer agrees to transmit full-file credit reporting data for
each Mortgage Loan pursuant to Exhibit G. For each Mortgage Loan, the Servicer
shall report one of the
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following statuses each month: new origination; current; delinquent (30-, 60-,
90-days, etc.); foreclosed or charged-off.
(c) The Servicer shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of
1999 and all applicable regulations promulgated thereunder, relating to the
Mortgage Loans and the related Mortgagors and shall provide all required notices
thereunder.
SECTION 4.20 Transfers of Mortgaged Property.
(a) The Servicer shall use its commercially reasonable best efforts to
enforce any "due-on-sale" provision contained in any Mortgage or Mortgage Note
and to deny assumption by the person to whom the Mortgaged Property has been or
is about to be sold whether by absolute conveyance or by contract of sale, and
whether or not the Mortgagor remains liable on the Mortgage and the Mortgage
Note. When the Mortgaged Property has been conveyed by the Mortgagor, the
Servicer shall, to the extent it has knowledge of such conveyance, exercise its
rights to accelerate the maturity of such Mortgage Loan under the "due-on-sale"
clause applicable thereto; provided, however, that the Servicer shall not
exercise such rights if prohibited by law from doing so.
(b) If the Servicer reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause, the Servicer shall enter into (a) an
assumption and modification agreement with the person to whom such property has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (b) in the event the
Servicer is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Servicer has the prior consent of
the primary mortgage guaranty insurer, if any, a substitution of liability
agreement with the purchaser of the Mortgaged Property pursuant to which the
original Mortgagor is released from liability and the purchaser of the Mortgaged
Property is substituted as Mortgagor and becomes liable under the Mortgage Note.
If an assumption fee is collected by the Servicer for entering into an
assumption agreement the fee will be retained by the Servicer as additional
servicing compensation. In connection with any such assumption, neither the
Mortgage Rate borne by the related Mortgage Note, the term of the Mortgage Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed unless such change would be consistent with Accepted
Servicing Practices.
(c) To the extent that any Mortgage Loan is assumable, the Servicer shall
inquire diligently into the credit-worthiness of the proposed transferee, and
shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans by the
Seller of the same type as the Mortgage Loans. If the credit-worthiness of the
proposed transferee does not meet such underwriting criteria, the Servicer
diligently shall, to the extent permitted by the Mortgage or the Mortgage Note
and by applicable law, accelerate the maturity of the Mortgage Loan.
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SECTION 4.21 Satisfaction and Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer shall request the release of any
Mortgage Loan Documents.
(b) If the Servicer satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Servicer otherwise prejudice any rights the Issuing Entity may have under
the mortgage instruments, the Servicer shall repurchase the related Mortgage
Loan at the Repurchase Price by deposit thereof in the Custodial Account within
two Business Days of receipt of such written demand by the Master Servicer or,
if earlier, the date on which the Servicer has knowledge of such improper
release. The Servicer shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 4.13 insuring the Servicer against
any loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
(c) Upon (i) becoming aware of the payment in full of any Mortgage Loan or
(ii) the receipt by the Servicer of a notification that payment in full has been
or will be escrowed in a manner customary for such purposes, the Servicer will
promptly notify the Trustee and Custodian by a certification (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the
Custodial Account maintained by the Servicer pursuant to Section 4.5 have been
or will be so deposited) of a Servicing Officer and shall request the Custodian
to deliver to the Servicer the related Mortgage File. Upon receipt of such
certification and Request for Release, the Custodian shall promptly release the
related Mortgage File to the Servicer, and the Trustee shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in full,
the Servicer is authorized to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of satisfaction
(or assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Custodial Account.
Notwithstanding anything to the contrary herein, the Trustee shall in no way be
liable or responsible for the willful malfeasance of the Servicer, or for any
wrongful or negligent actions taken by the Servicer, while the Servicer is
acting pursuant to the powers granted to it in this paragraph.
(d) From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan, the Trustee shall execute such documents as shall be
prepared and furnished to the Trustee by the Servicer (in form reasonably
acceptable to the Trustee) and as are necessary to the prosecution of any such
proceedings. The Trustee shall, upon request of the Servicer, as applicable, and
delivery to the Trustee, of a trust receipt signed by a Servicing Officer, cause
the Custodian to release the related Mortgage File held in its possession or
control to the Servicer. Such trust receipt shall obligate the Servicer to
return the Mortgage File to the Custodian when the need therefor by the Servicer
no longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon receipt of a certificate of a Servicing Officer similar to that hereinabove
specified, the trust receipt shall be released by the Trustee to the Servicer.
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(e) The Trustee shall furnish the Servicer, upon request, with any powers
of attorney (which are acceptable to the Trustee) empowering the Servicer to
execute and deliver instruments of satisfaction or cancellation, or of partial
or full release or discharge, and to foreclose upon or otherwise liquidate
Mortgaged Property, and to appeal, prosecute or defend in any court action
relating to the Mortgage Loans or the Mortgaged Property, in accordance with
this Agreement, and the Trustee shall execute and deliver such other documents
as the Servicer may request, necessary or appropriate to enable the Servicer to
service the Mortgage Loans and carry out its duties hereunder, in each case in
accordance with Accepted Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Servicer).
(f) In no event shall the Servicer, without the Trustee's written consent,
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Servicer's representative capacity or (ii) take any
action with the intent to cause, and which actually does cause, the Trustee to
be registered to do business in any state. The Servicer shall indemnify the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney by
the Servicer. In the performance of its duties hereunder, the Servicer shall be
an independent contractor and shall not, except in those instances where it is
taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
SECTION 4.22 Superior Liens.
(a) With respect to each Mortgage Loan secured by a second lien, if any,
the Servicer shall, for the protection of the Issuing Entity's interest, file
(or cause to be filed) of record a request for notice of any action by a
superior lienholder where permitted by local law and whenever applicable state
law does not require that a junior lienholder be named as a party defendant in
foreclosure proceedings in order to foreclose such junior lienholder's equity of
redemption. The Servicer shall also notify any superior lienholder in writing of
the existence of the Mortgage Loan and request notification of any action (as
described below) to be taken against the Mortgagor or the Mortgaged Property by
the superior lienholder.
(b) If the Servicer is notified that any superior lienholder has
accelerated or intends to accelerate the obligations secured by the superior
lien, or has declared or intends to declare a default under the superior
mortgage or the promissory note secured thereby, or has filed or intends to file
an election to have the Mortgaged Property sold or foreclosed, the Servicer
shall take whatever actions are necessary to protect the interests of the
Issuing Entity, and/or to preserve the security of the related Mortgage Loan.
The Servicer shall make a Servicing Advance of the funds necessary to cure the
default or reinstate the superior lien if the Servicer determines that such
Servicing Advance is in the best interests of the Trust Fund and is not a
Nonrecoverable Advance. The Servicer shall not make such a Servicing Advance
except to the extent that it determines in its reasonable good faith judgment
that such advance will be recoverable from Liquidation Proceeds on the related
Mortgage Loan. The Servicer shall thereafter take such action as is necessary to
recover the amount so advanced.
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SECTION 4.23 Servicer Compensation.
(a) As compensation for its services hereunder, the Servicer shall be
entitled to withdraw from the Custodial Account the amount of its servicing Fee
to the extent deposited therein on or before the Servicer Remittance Date. The
Servicing Fee shall be payable monthly. The obligation of the Issuing Entity to
pay the Servicing Fee is limited to, and payable solely from, the interest
portion of such Scheduled Monthly Payments with respect to the related Mortgage
Loan, or as otherwise provided in Section 4.6. Notwithstanding the foregoing,
with respect to the payment of the Servicing Fee for any month, the aggregate
Servicing Fee shall be reduced (but not below zero) by an amount equal to the
Compensating Interest Payment for the related Distribution Date.
(b) Additional servicing compensation in the form of Prepayment Interest
Excess, assumption fees, late payment charges and other ancillary income (other
than Prepayment Premiums) shall be retained by the Servicer to the extent not
required to be deposited in the Custodial Account. The Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement thereof except
as specifically provided for herein.
SECTION 4.24 Servicer Remittances.
(a) On each Servicer Remittance Date, the Servicer shall remit to the
Securities Administrator the sum of the following (the "SERVICER REMITTANCE
AMOUNT"):
(i) all amounts deposited in the Custodial Account as of the close of
business on the Determination Date (net of charges against or withdrawals
from the Custodial Account pursuant to Section 4.6); plus
(ii) the aggregate amount of all Monthly Advances, if any, which the
Servicer is obligated to advance on or before the Servicer Remittance Date
pursuant to Section 4.5 with respect to the related Due Period; minus
(iii) any amounts attributable to Principal Prepayments received
during the applicable Prepayment Period, together with any additional
interest required to be deposited in the Custodial Account in connection
with such Principal Prepayment in accordance with Section 4.5; and minus
(iv) any amounts attributable to Scheduled Monthly Payments collected
but due on a Due Date or Dates subsequent to the first day of the month in
which such Servicer Remittance Date occurs, which amounts shall be remitted
on the Servicer Remittance Date next succeeding the Due Period for such
amounts.
(b) On each Servicer Remittance Date, no later than 4:00 P.M., ET, the
Servicer shall remit the Servicer Remittance Amount by wire transfer of
immediately available funds to the Securities Administrator. All remittances
required to be made to the Securities Administrator shall be made to the
following wire account or to such other account as may be specified by the
Securities Administrator from time to time:
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[ - ]
ABA#: [ - ]
Account Name: [ - ]
Account Number: [ - ]
For further credit to: 200_-_, Account # __________
(c) With respect to any remittance received by the Securities Administrator
after the Servicer Remittance Date on which such remittance was due, the
Servicer shall pay to the Securities Administrator interest on any such late
remittance at an annual rate equal to the Prime Rate, adjusted as of the date of
each change, plus three percentage points, but in no event greater than the
maximum amount permitted by applicable law, from the date such remittance was
due until the date paid, both inclusive. The payment by the Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of any
Servicer Event of Default by the Servicer.
ARTICLE V
REPORTS
SECTION 5.1 Assessment of Compliance and Attestation Reports.
Each Responsible Party shall provide to the Securities Administrator and to
the Depositor, no later than March 1 of each year, commencing ______, an
assessment of compliance with servicing criteria ("ASSESSMENT OF COMPLIANCE")
and related attestation report ("ATTESTATION REPORT") as of and for the period
ending on December 31 of the preceding calendar year, which Assessment of
Compliance and Attestation Report shall relate to each of the servicing criteria
identified on Exhibit 1122 hereto as the responsibility of such Responsible
Party and shall comply with the provisions of Item 1122 of Regulation AB. Each
Assessment of Compliance provided by a Responsible Party shall include (a) a
statement of such party's responsibility for assessing compliance with the
servicing criteria applicable to such party, (b) a statement that such party
used the criteria identified in Item 1122(d) of Regulation AB to assess
compliance with the applicable servicing criteria, (c) disclosure of any
material instance of noncompliance identified by such party, and (d) a statement
that a registered public accounting firm has issued an Attestation Report on
such party's Assessment of Compliance with the applicable servicing criteria.
SECTION 5.2 Annual Compliance Statement.
Each Responsible Party shall furnish to the Securities Administrator and
the Depositor no later than March 1 of each year, commencing ____, an annual
compliance statement ("COMPLIANCE STATEMENT") signed by a Responsible Officer of
such party to the effect that (a) a review of such party's activities during the
reporting period and the party's performance under this Agreement have been made
under such officer's supervision and (b) to the best of such officer's
knowledge, based on such review, such Responsible Party has fulfilled all of its
obligations under this Agreement in all material respect throughout the
reporting period or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure and the nature and status
thereof.
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SECTION 5.3 Back-Up SOX Certification.
Each Responsible Party shall deliver to the Securities Administrator and
the Depositor no later than March 1 of each year, commencing ____, in which the
Issuing Entity is required to file an execute an Annual Report on Form 10-K, a
certification (a "BACK-UP SOX CERTIFICATION"), signed by a Responsible Officer
of such party, in the form of Exhibit SOX attached hereto.
SECTION 5.4 Commission Reporting.
(a) The Master Servicer shall, in accordance with industry standards,
prepare and file with the Commission via XXXXX, the following reports in respect
of the Issuing Entity as and to the extent required under the Exchange Act, each
of which reports shall be signed by the [Master Servicer].
(i) Distribution Report on Form 10-D. Within 15 days following each
Distribution Date (or such later date as may be permissible due to an
extension of the filing deadline), the Securities Administrator will
prepare and file a Distribution Report on Form 10-D with respect to the
Issuing Entity, which "Distribution Report" shall include a copy of the
Distribution Date Statement prepared by the Securities Administrator in
respect of the related Distribution Date detailing all data elements
specified in Item 1121(a) of Regulation AB other than those data elements
specified in Item 1121(a)(11), (12) and (14); provided, that, the
Securities Administrator shall have received from the Depositor (and the
Servicer with respect to Item 1), no later than ten days prior to the date
such Distribution Report on Form 10-D is required to be filed, the
following additional information, data, and materials required to be
included in the Distribution Report on Form 10-D for such Distribution
Date:
(A) Item 1 - Distribution and Pool Performance Information (each
of the data elements specified in Item 1121(a)(11), (12) and (14) of
Regulation AB);
(B) Item 2 - Legal Proceedings (information required by Item 1117
of Regulation AB);
(C) Item 3 - Sale of Securities and Use of Proceeds (information
required by Item 2 of Part II of Form 10-Q);
(D) Item 4 - Defaults Upon Senior Securities (information
required by Item 3 of Part II of Form 10-Q);
(E) Item 5 - Submission of Matters to a Vote of Security Holders
(information required by Item 4 of Part II of Form 10-Q);
(F) Item 6 - Significant Obligors of Pool Assets (information
required by Item 1112(b) of Regulation AB);
(G) Item 7 - Significant Enhancement Provider Information
(information required by Items 1114(b)(2) and 1115(b) of Regulation
AB);
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(H) Item 8 - Other Information (all other information required to be
disclosed on Form 8-K during the period covered by the report and not yet
reported); and
(I) Item 9 - Exhibits (all exhibits required to be filed by Form 10-D
and Item 601 of Regulation S-K other than the Distribution Date Statement
to be provided by the Securities Administrator).
(ii) Annual Report on Form 10-K. The Securities Administrator will prepare
and file an Annual Report on Form 10-K in respect of the Issuing Entity,
provided, that the Securities Administrator shall have received from the
[Depositor] and other transaction parties, no later than March 1 of each
calendar year prior to the filing deadline for such Annual Report, all
information, data and exhibits required to be provided or filed with such Annual
Report including information, data, and exhibits required to be provided in
connection with the following Items and other filing requirements of Form 10-K:
(A) Item 9B - Other Information (information required to be reported
on Form 8-K in the fourth quarter but not reported);
(B) Item 15 - Exhibits and Financial Statement Schedules (including
all exhibits required to be filed pursuant to Item 601 of Regulation S-K
under the Exchange Act other than [the certification specified in Item
601(b)(31)(ii) of Regulation S-K and] the Assessment of Compliance,
Attestation Report and Compliance Statement specified in Item 601(b)(33),
(34) and (35) of Regulation S-K with respect to those Servicing Criteria as
to which the Securities Administrator is the Responsible Party);
(C) Significant Obligor Financial Information (Item 1112(b) of
Regulation AB);
(D) Significant Enhancement Provider Financial Information (Items
1114(b)(2) and 1115(b) of Regulation AB);
(E) Legal Proceedings (Item 1117 of Regulation AB);
(F) Affiliations and Certain Relationships and Related Transactions
(Item 1119 of Regulation AB); and
(G) Compliance with Applicable Servicing Criteria (Item 1122 of
Regulation AB).
(iii) Current Reports on Form 8-K. The Securities Administrator will
prepare and file Current Reports on Form 8-K in respect of the Issuing Entity at
the direction of the [Depositor] and at the expense of the Trust Fund, provided,
that the [Depositor] shall have timely notified the Securities Administrator of
an item reportable on a Current Report on Form 8-K and shall have delivered to
the Securities Administrator no later than two Business Days prior to the filing
deadline for such Current Report, all information,
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data and exhibits required to be provided or filed with such Current Report,
including, particularly, information, data and exhibits required to be provided
in connection with the following Items of Form 8-K, [but only to the extent that
a Responsible Officer of the Securities Administrator does not otherwise have
actual knowledge of same in its capacity as Securities Administrator hereunder]:
(A) Item 1.01 - Entry into a Material Definitive Agreement;
(B) Item 1.02 - Termination of a Material Definitive Agreement;
(C) Item 1.03 - Bankruptcy or Receivership;
(D) Item 2.04 - Triggering Events that Accelerate or Increase a
Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement;
(E) Item 3.03 - Material Modification to Rights of Security
Holders;
(F) Item 5.03 - Amendments of Articles of Incorporation or
Bylaws; Change of Fiscal Year;
(G) Item 6.02 - Change in Servicer or Trustee;
(H) Item 6.03 - Change in Credit Enhancement or Other External
Support;
(I) Item 6.04 - Failure to Make a Required Distribution; and
(J) Item 6.05 - Securities Act Updating Disclosure.
(iv) Form 15. As and when permitted under the provisions of Exchange
Act, the Securities Administrator will prepare and file, on behalf of the
Issuing Entity, a Form 15 to suspend the Issuing Entity's reporting
obligations under the Exchange Act.
(b) All information, data, and materials required to be provided by any
Responsible Party to the Securities Administrator for incorporation in any
report to be filed with the Commission shall be provided in a format compatible
with Commission filing requirements, including, as appropriate, XXXXX filing
guidelines. The Depositor acknowledges and agrees that the Securities
Administrator may include in any Exchange Act report all relevant information,
data and exhibits as the Securities Administrator may receive in connection with
such report irrespective of any provision that may permit the exclusion of such
material. For example, the Securities Administrator may file all Assessments of
Compliance, Attestation Reports and Compliance Statements timely received from
any Responsible Party irrespective of any applicable minimum pool asset
percentage requirement for disclosure related to such Responsible Party.
(c) The Depositor agrees to furnish promptly to the Securities
Administrator from time to time upon request such additional information, data,
reports, documents and financial statements within the Depositor's possession or
control as the Securities Administrator
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reasonably requests as necessary or appropriate to prepare and file the
foregoing reports. The Securities Administrator shall make available to the
Depositor copies of all Exchange Act reports filed hereunder.
(d) Notwithstanding Section 5.4(a)(ii) above, in the event that the
Securities Administrator has not timely received all information, data, and
exhibits as are required to prepare and file any required Exchange Act report,
the Depositor nevertheless hereby directs the Securities Administrator to file
such Exchange Act report based on the information that the Securities
Administrator has timely received and without such additional required
information, data or exhibits not timely received. Upon subsequent delivery to
the Securities Administrator of all information, data, and exhibits required to
complete such Exchange Act report and upon direction of the Depositor, the
Securities Administrator will prepare and file an amendment to the prior
Exchange Act report filing to include such additional information. The Depositor
shall be responsible for all costs and expenses of the Securities Administrator
related to the preparation and filing of any such amendment.
(e) Other than the Exchange Act reports specified above, the Securities
Administrator shall have no responsibility to file any items or reports with the
Commission under the Exchange Act or otherwise; provided, however, the
Securities Administrator will cooperate with the Depositor in connection with
any additional filings with respect to the Issuing Entity as the Depositor deems
necessary under the Exchange Act.
(f) The Trust Fund shall pay all costs and expenses of the Securities
Administrator related to the preparation and filing of any Current Report on
Form 8-K, any Distribution Report on Form 10-D (other than the costs and expense
of the Securities Administrator associated with the preparation and filing of
the Distribution Date Report) or any amendment to any Exchange Act report.
SECTION 5.5 Distribution Date Report.
(a) On each Distribution Date, the Securities Administrator shall make
available to the other parties hereto a report containing information with
respect to such Distribution Date (each, a "DISTRIBUTION DATE REPORT"),
including the following items (on the basis of information provided with respect
to the Mortgage Loans on the Servicer Report):
(i) the Interest Proceeds;
(ii) the Principal Proceeds, including Liquidation Proceeds and
Insurance Proceeds, stating separately the amount attributable to Scheduled
Monthly Payments of principal and unscheduled payments in the nature of
principal;
(iii) the amount of principal distributed on each Class of
Certificates;
(iv) the Certificate Principal Balance of each class of Certificates,
to the extent applicable, as of such Distribution Date after giving effect
to payments allocated to principal reported under subclause (iii) above;
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(v) the Pass-Through Rate, if applicable, for each Class of
Certificates for such Distribution Date;
(vi) the Net WAC Cap Carryover Amounts distributed on such
Distribution Date, the amounts remaining unpaid after giving effect to
distributions thereof on such Distribution Date and the amounts of all Net
WAC Carryover Amounts covered by withdrawals from the Reserve Account on
such Distribution;
(vii) the amount of any Realized Losses incurred with respect to the
Mortgage Loans (x) in the applicable Prepayment Period and (y) in the
aggregate since the Cut-off Date;
(viii) the amount of the Servicing Fees and Master Servicing Fees paid
during the Due Period to which such Distribution Date relates;
(ix) the number and aggregate Scheduled Principal Balance of Mortgage
Loans, as reported to the Master Servicer and the Securities Administrator
by the Servicer:
(A) remaining outstanding,
(B) delinquent 30 to 59 days on a contractual basis,
(C) delinquent 60 to 89 days on a contractual basis,
(D) delinquent 90 or more days on a contractual basis,
(E) as to which foreclosure proceedings have been commenced as of
the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs,
(F) in bankruptcy, and
(G) that are REO Properties;
(x) the aggregate Scheduled Principal Balance of any Mortgage Loans
with respect to which the related Mortgaged Property became an REO Property
as of the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs;
(xi) with respect to substitution of Mortgage Loans in the preceding
calendar month, the Scheduled Principal Balance of each Deleted Mortgage
Loan and of each Qualified Substitute Mortgage Loan;
(xii) the aggregate amount of any Monthly Advances made by or on
behalf of the Servicer (or the Master Servicer) solely to the extent
reported to the Securities Administrator by the Master Servicer; and
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(xiii) LIBOR with respect to such Distribution Date and the following
Interest Accrual Period.
(b) The Securities Administrator will make such report and additional loan
level information (and, at its option, any additional files containing the same
information in an alternative format) available each month to the Rating
Agencies, the Trustee, the Certificateholders, the Depositor and the Cap
Provider via the Securities Administrator's website. The Securities
Administrator's website can be accessed at _________. Assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at __________. Such parties that are unable to use the website are
entitled to have a paper copy mailed to them via first class mail by notifying
the Securities Administrator at the address set forth herein, and indicating
such. The Securities Administrator shall have the right to change the way such
statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Securities Administrator
shall provide timely and adequate notification to all above parties regarding
any such changes.
(c) The foregoing information and reports shall be prepared and determined
by the Securities Administrator based solely on Mortgage Loan data provided to
the Master Servicer and the Securities Administrator by the Servicer pursuant to
Section 4.16. In preparing or furnishing the foregoing information, the
Securities Administrator shall be entitled to rely conclusively on the accuracy
of the information or data regarding the Mortgage Loans and the related REO
Property that have been provided to the Master Servicer and the Securities
Administrator by the Servicer, and neither the Securities Administrator nor the
Master Servicer shall be obligated to verify, recompute, reconcile or
recalculate any such information or data.
(d) Upon the reasonable advance written request of any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee shall be forwarded promptly to the Securities
Administrator, the Securities Administrator shall provide, or cause to be
provided (or, to the extent that such information or documentation is not
required to be provided by the Servicer, shall use reasonable efforts to obtain
such information and documentation from the Servicer, and provide), to such
Certificateholder such reports and access to information and documentation
regarding the Mortgage Loans as such Certificateholder may reasonably deem
necessary to comply with applicable regulations of the Office of Thrift
Supervision or its successor or other regulatory authorities with respect to an
investment in the Certificate; provided, however, that the Securities
Administrator shall be entitled to be reimbursed by such Certificateholder for
actual expenses incurred in providing such reports and access.
SECTION 5.6 Subservicers and Subcontractors.
(a) The Servicer shall:
(i) cause each Subservicer, and each Subcontractor determined by the
Company pursuant to Section 4.2(b) to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, to deliver to
the Master Servicer and the Depositor an Assessment of Compliance and
Attestation Report as and when required pursuant to Section 5.1.
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(ii) deliver, and cause each Subservicer and each Subcontractor
described in clause (i) to provide, to the Depositor, the Master Servicer
and any other Person that will be responsible for signing the Back-Up SOX
Certification on behalf of an asset-backed issuer with respect to this
transaction a certification, signed by the appropriate officer of the
Company, in the form attached hereto as Exhibit SOX.
(b) The Servicer acknowledges that the parties identified in clause (a)(ii)
above may rely on the certification provided by the Servicer pursuant to such
clause in signing a Back-Up SOX Certification and filing such with the
Commission.
(c) Each Assessment of Compliance provided by a Subservicer pursuant to
Section ____ shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 1122 hereto delivered to the
Depositor concurrently with the execution of this Agreement or, in the case of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An Assessment of Compliance provided by a Subcontractor pursuant to
Section 5.1 need not address any elements of the Servicing Criteria other than
those specified by the Servicer pursuant to Section 4.2(b).
SECTION 5.7 Additional Information.
Any party that signs any Exchange Act report that the Securities
Administrator is required to file shall provide to the Securities Administrator
prompt notice of the execution of such Exchange Act report along with the name
and contact information for the person signing such report and shall promptly
deliver to the Securities Administrator the original executed signature page for
such report. In addition, each of the parties agrees to provide to the
Securities Administrator such additional information related to such party as
the Securities Administrator may reasonably request, including evidence of the
authorization of the person signing any certification or statement, financial
information and reports, and such other information related to such party or its
performance hereunder.
SECTION 5.8 Intention of the Parties and Interpretation.
Each of the parties acknowledges and agrees that the purpose of the
foregoing provisions of this Article V is to facilitate compliance by the
Securities Administrator and the Depositor with the provisions of Regulation AB,
as such may be amended from time to time and subject to clarification and
interpretive advice as may be issued by the staff of the Commission from time to
time. Therefore, each of the parties agrees that (a) the obligations of the
parties hereunder shall be interpreted in such a manner as to accomplish that
purpose, (b) the parties' obligations hereunder will be supplemented and
modified as necessary to be consistent with any such amendments, interpretive
advice or guidance, convention or consensus among active participants in the
asset-backed securities markets, advice of counsel, or otherwise in respect of
the requirements of Regulation AB, (c) the parties shall comply with requests
made by the Securities Administrator or the Depositor for delivery of additional
or different information as the Securities Administrator or the Depositor may
determine in good faith is necessary to comply with the provisions of Regulation
AB, and (d) no amendment of this Agreement shall be required to effect any such
changes in the parties' obligations as are necessary to accommodate evolving
interpretations of the provisions of Regulation AB.
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SECTION 5.9 Indemnification.
Each Responsible Party hereby agrees to indemnify and hold harmless the
Securities Administrator and each of its directors, officers, employees, agents,
and affiliates from and against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments and other
costs and expenses arising out of or based upon (a) any breach by such
Responsible Party of any if its obligations under this Article V, including
particularly its obligations to provide any Assessment of Compliance,
Attestation Report, Compliance Statement or any information, data or materials
required to be included in any Exchange Act report, (b) any misstatement or
omission in any information, data or materials provided by such Responsible
Party, or (c) the negligence, bad faith or willful misconduct of such
Responsible Party in connection with its performance hereunder. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Securities Administrator, then each Responsible Party agrees that
it shall contribute to the amount paid or payable by the Securities
Administrator as a result of any claims, losses, damages or liabilities incurred
by the Securities Administrator in such proportion as is appropriate to reflect
the relative fault of the Securities Administrator on the one hand and such
Responsible Party on the other. This indemnification shall survive the
termination of this Agreement or the termination of any party to this Agreement.
ARTICLE VI
THE SERVICER
SECTION 6.1 Limitation on Resignation and Assignment by Servicer.
(a) The Servicer shall not assign this Agreement or the servicing hereunder
or delegate its rights or duties hereunder or any portion hereof or sell or
otherwise dispose of all of its property or assets without the prior written
consent of the Master Servicer.
(b) The Servicer shall not resign from the obligations and duties hereby
imposed on it except (i) with the consent of the Master Servicer and the
Depositor or (ii) upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Master Servicer, the Depositor and the Trustee, which Opinion of Counsel shall
be in form and substance acceptable to the Master Servicer and the Trustee. No
such resignation shall become effective until a successor acceptable to the
Depositor and the Master Servicer shall have assumed the Servicer's
responsibilities and obligations.
SECTION 6.2 Examination Rights; Additional Information.
(a) The Master Servicer, the Trustee, the Depositor and the Securities
Administrator, or their respective designees, shall have the right to examine
and audit any and all of the related books, records, facilities or other
information of the Servicer, whether held by the Servicer or by another on its
behalf, with respect to or concerning this Agreement or the Mortgage Loans,
during business hours or at such other times as may be reasonable under
applicable circumstances, upon at least two Business Days prior written notice;
provided, however, that such examination will not be permitted to the extent
such examination would be inconsistent
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with (i) the Servicer's current reasonable procedures and policies in effect at
such time, (ii) applicable law (including any rules and regulations promulgated
thereunder), including but not limited to applicable copyright and trademark
laws, (iii) any evidentiary privileges that the Servicer may have with respect
to such materials, i.e., disclosure of such materials may cause the Servicer to
lose such privilege, and (iv) the confidentiality obligations imposed upon the
Servicer by any unaffiliated third-party relating to such books of account and
records.
(b) The Servicer shall make available for interview to the Master Servicer
and the Depositor and their respective employees, agents, representatives and
attorneys, such officers and employees that are responsible for and/or
knowledgeable about the performance about the Servicer's obligations hereunder.
Any such inspection or interview shall be upon reasonable advance notice and
only as long as such inspection or interview does not disrupt the operations of
the Servicer.
(c) The Servicer shall provide access to information and documentation
regarding the Mortgage Loans to the Master Servicer and Trustee, and their
respective agents and accountants at any time upon reasonable request and during
normal business hours, and to the Certificateholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and Corporation
or examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of Thrift
Supervision or other regulatory authority, such access to be afforded without
charge but only upon reasonable request in writing and during normal business
hours at the offices of the Servicer designated by it. In fulfilling such a
request the Servicer shall not be responsible for determining the sufficiency of
such information.
(d) The Servicer shall provide to the Master Servicer such additional
information as the Master Servicer may reasonably request, including evidence of
the authorization of the person signing any certification or statement,
financial information and reports and of the Fidelity Bond and Errors and
Omissions Insurance policy required to be maintained by the Servicer pursuant to
Section 4.13, and such other information related to the Servicer or its
performance hereunder.
SECTION 6.3 Servicer as Bailee.
(a) The Servicer shall transmit to the Custodian such documents and
instruments coming into the possession of the Servicer from time to time as are
required by the terms hereof to be delivered to the Custodian. Any funds
received by the Servicer in respect of any Mortgage Loan or which otherwise are
collected by the Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan shall be held for the benefit of the Trustee and
the Certificateholder, subject to the Servicer's right to retain or withdraw
amounts provided in this Agreement and to the right of the Servicer to retain
its Servicing Fee and other amounts as provided herein.
(b) All Mortgage Files and funds collected or held by, or under the control
of, the Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be held by the Servicer for
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and on behalf of the Trustee as the Trustee's agent and bailee for purposes of
perfecting the Trustee's security interest therein as provided by the relevant
UCC or laws; provided, however, that the Servicer shall be entitled to setoff
against, and deduct from, any such funds any amounts that are properly due and
payable to the Servicer under this Agreement and shall be authorized to remit
such funds to the Trustee in accordance with this Agreement.
(c) The Servicer hereby acknowledges that, concurrently with the execution
of this Agreement, the Trustee shall have a security interest in the Mortgage
Loans and in all Mortgage Files representing such Mortgage Loans and in all
funds and investment property now or hereafter held by, or under the control of,
the Servicer or are collected by the Servicer in connection with the Mortgage
Loans, whether as Scheduled Monthly Payments or as full or partial prepayments
of principal or interest or as Liquidation Proceeds or Insurance Proceeds or
otherwise, and in all proceeds of the foregoing and proceeds of proceeds (but
excluding any fee or other amounts to which the Servicer is entitled to
hereunder); and the Servicer agrees that so long as the Mortgage Loans are
collaterally assigned to and held by the Trustee, all documents or instruments
constituting part of the Mortgage Files, and such funds relating to the Mortgage
Loans which come into the possession or custody of, or which are subject to the
control of, the Servicer shall be held by the Servicer and on behalf of the
Trustee as the Trustee's agent and bailee for purposes of perfecting the
Trustee's security interest therein as provided by the applicable UCC or other
applicable laws.
SECTION 6.4 Termination of the Servicer without Cause.
The Depositor may terminate the Servicer without cause upon 90 days prior
written notice; provided, however, that no such termination will be effective
until the obligations of the Servicer hereunder have been assumed by a successor
servicer appointed in accordance with Section 8.7. Notwithstanding the
foregoing, if the Servicer is terminated without cause, the successor servicer
shall reimburse the Servicer for all accrued and unpaid Servicing Fees and
unreimbursed Monthly Advances and Servicing Advances upon the transfer of
servicing to such successor servicer.
SECTION 6.5 Servicer Events of Default.
(a) Each of the following shall constitute a Servicer Event of Default on
the part of the Servicer:
(i) any failure by the Servicer to remit to the Securities
Administrator any payment required to be made under the terms of this
Agreement and such failure continues for two Business Days;
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Servicer set forth in this Agreement (other than the covenants
described in clause (ix) below), including, but not limited to, breach by
the Servicer of any one or more of the representations, warranties and
covenants of the Servicer as set forth in Section 3.3, which continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the
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same to be remedied, shall have been given to the Servicer by the Master
Servicer or the Trustee;
(iii) failure by the Servicer to maintain its license to do business
in any jurisdiction where the Mortgaged Property is located if such license
is required;
(iv) a petition with, or decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, including bankruptcy, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been filed or entered against the Servicer and such
petition or decree or order shall have remained in force undischarged or
unstayed for a period of 60 days;
(v) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or of or relating to all or substantially all of its assets;
(vi) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations or cease its normal business operations for at least three
Business Days;
(vii) the Servicer ceases to meet the Servicer eligibility
qualifications of Xxxxxx Xxx or Xxxxxxx Mac;
(viii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any
portion thereof in violation of Section 6.1 hereof; or
(ix) any failure by the Servicer to duly perform, within the required
time period, its obligations to provide any Assessment of Compliance,
Attestation Report, Compliance Statement, Back-Up SOX certification, or any
other information, data or materials required to be provided hereunder,
including any items required to be included in any Exchange Act report
pursuant to Article V, which failure continues unremedied for a period of
five days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Master Servicer.
(b) If the Servicer obtains knowledge of a Servicer Event of Default, the
Servicer shall promptly notify the Master Servicer, the Depositor, the Seller
and the Trustee. In each and every such case, so long as a Servicer Event of
Default shall not have been remedied, in addition to whatever rights the Master
Servicer or the Trustee may have at law or equity to damages, including
injunctive relief and specific performance, the Master Servicer, by notice in
writing to the Servicer, may terminate all the rights and obligations of the
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof.
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(c) The Master Servicer will provide written notice of the Servicer's
termination upon a Servicer Event of Default to the Servicer, the Depositor, the
Seller and the Trustee. Except with respect to a Servicer Event of Default under
Section 6.5(a), in which case such notice will be immediately effective, the
termination of the Servicer shall not become effective until at least ten
Business Days following the date such notice of termination is provided by the
Master Servicer to the Servicer and the Depositor (the "TERMINATION NOTICE
Date"). Upon the Termination Notice Date, or ten Business Days thereafter, as
applicable, all authority and power of the Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the successor servicer appointed pursuant to Section 8.8.
(d) If the Servicer is terminated upon the occurrence of a Servicer Event
of Default as described in this Section 6.5, upon written request from the
Depositor or the Master Servicer, the Servicer shall, at its expense, prepare,
execute and deliver to the successor entity designated by the Master Servicer
any and all documents and other instruments, place in such successor's
possession all Mortgage Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Servicer's sole
expense. The Servicer shall cooperate with the Master Servicer and such
successor in effecting the termination of the Servicer's responsibilities and
rights hereunder, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
(e) In connection with the foregoing, the Servicer being terminated shall
bear all reasonable out-of-pocket costs of a servicing transfer, including but
not limited to those of the Master Servicer, the Securities Administrator, the
Trustee, legal fees and expenses, accounting and financial consulting fees and
expenses, and costs of amending the Agreement, if necessary. If such amounts are
not paid by the terminated Servicer, they shall be paid from amounts held in the
Distribution Account.
SECTION 6.6 Waiver of Defaults.
The Certificateholders representing 66-2/3% of the Voting Interests may by
written notice waive any default by the Servicer in the performance of its
obligations hereunder and its consequences, except that a default in the making
of any required deposit to the Distribution Account that would result in a
failure of the Securities Administrator to make any required payment of
principal of or interest on the Certificates may only be waived with the consent
of 100% of the affected Certificateholders. Upon any waiver of a past default,
such default shall cease to exist, and any Servicer Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
SECTION 6.7 Servicer Covenants.
(a) If so requested by the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Servicer shall (or shall cause each Subservicer to)
(i) notify the Depositor in writing of (A) any
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material litigation or governmental proceedings pending against the Servicer or
any Subservicer and (B) any affiliations or relationships that develop following
the closing date of this transaction between the Servicer and any Subservicer
and any of the transaction parties (and any other parties identified in writing
by the requesting party) with respect to this transaction, and (ii) provide to
the Depositor a description of such proceedings, affiliations or relationships.
(b) As a condition to the succession to the Servicer or any Subservicer as
servicer or subservicer under this Agreement by any Person (i) into which the
Servicer or such Subservicer may be merged or consolidated, or (ii) which may be
appointed as a successor to the Servicer or any Subservicer, the Servicer shall
provide to the Depositor and Master Servicer, at least 15 calendar days prior to
the effective date of such succession or appointment, (x) written notice to the
Depositor and Master Servicerof such succession or appointment and (y) in
writing and in form and substance reasonably satisfactory to the Depositor and
Master Servicer, all information reasonably requested by the Depositor or Master
Servicer in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to any class of asset-backed securities.
(c) In addition to such information as the Servicer is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Depositor, the Servicer shall provide such information regarding the performance
or servicing of the Mortgage Loans as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided concurrently with the monthly reports
otherwise required to be delivered by the Servicer under this Agreement,
commencing with the first such report due not less than ten Business Days
following such request.
SECTION 6.8 Indemnification.
The Servicer agrees to indemnify the Depositor, the Issuing Entity, the
Trustee, the Securities Administrator and the Master Servicer and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liability, fees
and expenses that the Depositor, the Issuing Entity, the Trustee, the Securities
Administrator or the Master Servicer may sustain as a result of (i) the
Servicer's willful malfeasance, bad faith or negligence in the performance of
its duties under this Agreement, or (ii) the failure of the Servicer to perform
its duties and its obligations under this Agreement and its duties and
obligations to service the Mortgage Loans in compliance with the terms of this
Agreement. The Depositor, the Issuing Entity, the Trustee, the Securities
Administrator or the Master Servicer shall as promptly as practicable notify the
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans entitling the Depositor, the Issuing Entity, the Trustee, the
Securities Administrator or the Master Servicer to indemnification under this
Section 6.8, whereupon the Servicer shall assume the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim.
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SECTION 6.9 Opinion.
On or before the Closing Date, the Servicer shall cause to be delivered to
the other parties to this Agreement and the Underwriters one or more Opinions of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the recipients thereof, as to the due authorization, execution and delivery
of this Agreement by the Servicer and the enforceability thereof.
ARTICLE VII
MASTER SERVICER
SECTION 7.1 Duties of the Master Servicer.
(a) The Master Servicer shall master service the Mortgage Loans in
accordance with the Accepted Master Servicing Practices and the provisions of
this Agreement. The Master Servicer shall monitor the performance of the
obligations of the Servicer hereunder.
(b) The Master Servicer shall not be required to cause the Servicer to take
any action or refrain from taking any action if this Agreement does not require
the Servicer to take such action or refrain from taking such action. The Master
Servicer shall not take, or knowingly permit the Servicer to take, any action
that is inconsistent with or prejudices the interests of the Issuing Entity or
the Trustee in any Mortgage Loan or the rights and interests of the Issuing
Entity or the Trustee under this Agreement. The Master Servicer shall have no
liability for the acts or omissions of the Servicer in the performance by such
Servicer of its obligations.
(c) If a party does not act as both the Master Servicer and the Securities
Administrator, not later than the Business Day prior to each Distribution Date,
the Master Servicer shall forward to the Securities Administrator a statement
setting forth the status of any account or accounts, including any collection
accounts, maintained by the Master Servicer as of the close of business on the
Business Day prior to the related Distribution Date, indicating that all
remittances or payments required by this Agreement to be made by the Master
Servicer have been made (or if any required remittance or payment has not been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from any account maintained by the Master Servicer.
(d) The Master Servicer shall, in accordance with Sections 6.5 and 7.8, in
the event that the Servicer fails to perform its obligations in accordance
herewith, terminate the rights and obligations of the Servicer hereunder. The
Master Servicer shall pay the costs of such enforcement at its own expense, and
shall be reimbursed for the costs of such enforcement initially (i) from a
general recovery resulting from such enforcement only to the extent, if any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans, (ii) from a specific recovery of costs, expenses or attorneys' fees
against the party against whom such enforcement is directed, and then, (iii) to
the extent that such amounts are insufficient to reimburse the Master Servicer
for the costs of such enforcement, from the Distribution Account.
(e) If the Servicer fails to remit a Monthly Advance, the Master Servicer,
in its capacity as successor servicer, shall itself make such Advance. If the
Master Servicer determines
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that a Monthly Advance is required, it shall, on the Business Day immediately
prior to the related Distribution Date, deposit in the Custodial Account
immediately available funds in an amount equal to such Monthly Advance. The
Master Servicer shall be entitled to be reimbursed from the Distribution Account
in accordance with Section 10.1 for all Monthly Advances made by it from late
collections related to such Mortgage Loan or from other funds as provided in
Section 10.1. Notwithstanding anything to the contrary herein, in the event the
Master Servicer determines in its reasonable judgment that a Monthly Advance is
a Non-recoverable Advance, the Master Servicer shall be under no obligation to
make such Monthly Advance. In the event that the Master Servicer determines that
any such Monthly Advances are Non-recoverable Advances, the Master Servicer
shall provide the Trustee with a certificate signed by a Responsible Officer of
the Master Servicer evidencing such determination and setting forth the basis
for such determination.
(f) The Master Servicer undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement.
SECTION 7.2 Assignment or Delegation of Duties by the Master Servicer.
Except as expressly provided herein, the Master Servicer shall not assign
or transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Master Servicer hereunder, unless the Trustee and the Depositor shall have
consented to such action (such consent of the Trustee or the Depositor not to be
unreasonably withheld or delayed); provided, however, that the Master Servicer
shall have the right without the prior written consent of the Trustee or the
Depositor to delegate or assign to or subcontract with or authorize or appoint
an Affiliate of the Master Servicer to perform and carry out any duties,
covenants or obligations to be performed and carried out by the Master Servicer
hereunder. In no case, however, shall any such delegation, subcontracting or
assignment to an Affiliate of the Master Servicer relieve the Master Servicer of
any liability hereunder. Notice of such permitted assignment shall be given
promptly by the Master Servicer to the Depositor and the Trustee. If, pursuant
to any provision hereof, the duties of the Master Servicer are transferred to a
successor master servicer, the entire amount of compensation payable to the
Master Servicer pursuant hereto, including amounts payable to or permitted to be
retained or withdrawn by the Master Servicer pursuant to Section 7.4, shall
after such transfer be payable to such successor master servicer.
SECTION 7.3 Fidelity Bond and Errors and Omission Policy.
The Master Servicer, at its expense, shall maintain with responsible
companies, at its own expense, a blanket Fidelity Bond and an Errors and
Omissions Insurance Policy, with broad coverage on all officers, employees and
other Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
Errors and Omissions Insurance Policy shall be in such form and amount that is
consistent with coverage customarily maintained by master servicers of mortgage
loans similar to the Mortgage Loans. The Master Servicer shall provide the
Depositor and the Trustee, upon request, with a copy of the Fidelity Bond and
Errors and Omission Policy.
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SECTION 7.4 Compensation to the Master Servicer.
(a) The Master Servicer will be entitled to the Master Servicer Fee on each
Distribution Date. All income and gain realized from any investment of funds in
the Distribution Account shall be for the benefit of the Master Servicer as
compensation. Notwithstanding the foregoing, if the Master Servicer is the
successor servicer, the Master Servicer shall deposit in the Distribution
Account, on or before the related Distribution Date, an amount equal to the
lesser of (a) its servicing compensation with respect to such Distribution Date
and (b) the amount of any Compensating Interest Payment required to be paid by
the Servicer with respect to such Distribution Date pursuant to this Agreement,
but which is not paid by the Servicer. The Master Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement.
(b) From the Master Servicing Fee, the Master Servicer shall pay the fees
of the Trustee and Custodian pursuant to an agreed fee schedule.
SECTION 7.5 Merger or Consolidation.
Any Person into which the Master Servicer may be merged or consolidated, or
any Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or resulting
Person to the Master Servicer shall be a Person that shall be qualified and
approved (or that have an Affiliate that is qualified and approved) to service
mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac and shall have a net worth of not
less than $25,000,000.
SECTION 7.6 Examination Rights.
(a) The Depositor or their respective designees shall have the right to
examine and audit any and all of the related books, records, facilities or other
information of the Master Servicer, whether held by the Master Servicer or by
another on its behalf, solely and specifically relating to this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice;
provided, however, that such examination will not be permitted to the extent
such examination would be inconsistent with (i) the Master Servicer's current
reasonable procedures and policies in effect at such time, (ii) applicable law
(including any rules and regulations promulgated thereunder), including but not
limited to applicable copyright and trademark laws, (iii) any evidentiary
privileges that the Master Servicer or Securities Administrator may have with
respect to such materials, i.e., disclosure of such materials may cause the
Master Servicer to lose such privilege, and (iv) the confidentiality obligations
imposed upon the Master Servicer by any unaffiliated third-party relating to
such books of account and records. Each party shall pay its own travel expenses
associated with such examination.
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(b) The Master Servicer shall make available for interview to the Depositor
or their employees, agents, representatives and attorneys, such officers and
employees that are responsible for and/or knowledgeable about the performance of
the Master Servicer's obligations under this Agreement. Any such inspection or
interview shall be upon reasonable advance notice and only as long as such
inspection or interview does not disrupt the operations of the Master Servicer.
SECTION 7.7 Resignation of Master Servicer.
(a) Except as otherwise provided in Section 7.12 and this Section 7.7, the
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (i) with the consent of the Depositor (which consent may not be
unreasonably withheld) or (ii) upon the determination that its duties hereunder
are no longer permissible under applicable law and such incapacity cannot be
cured by the Master Servicer. Any such determination permitting resignation
pursuant to clause (ii) above shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee and the Depositor. No such resignation
shall become effective until a successor master servicer shall have assumed the
Master Servicer's responsibilities and obligations under this Agreement. Notice
of such resignation shall be given promptly, but no less than 30 days prior to
the effectiveness of such resignation, by the Master Servicer to the Depositor
and the Trustee.
(b) Upon the resignation of the Master Servicer and the appointment of a
successor master servicer as described in the preceding paragraph, the
Securities Administrator, if the same party, also may resign upon notice to the
Depositor and the Trustee.
SECTION 7.8 Master Servicer to Act as Servicer; Appointment of Successor.
(a) On and after the time any Servicer resigns or is terminated pursuant to
the terms of this Agreement, the Depositor, with the consent of the Master
Servicer pursuant to the procedures below, shall appoint a successor servicer
pursuant to this Agreement, who shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on such Servicer by the terms and
provisions of this Agreement and applicable law.
(b) The Depositor may nominate a successor servicer to the Master Servicer
by 6:00 P.M., ET, on the third Business Day following the Termination Notice
Date. If the Master Servicer does not object to the proposed successor servicer
by 6:00 P.M. New York City time on the fourth Business Day following the
Termination Notice Date, then the Master Servicer shall appoint such proposed
successor servicer as the successor servicer. If the Master Servicer delivers
written notice to the Depositor that it does not consent to such proposed
successor servicer, then the Depositor may nominate a successor servicer to the
Master Servicer by 3:00 P.M., ET, on the sixth Business Day following the
Termination Notice Date. If the Master Servicer does not object to the proposed
successor servicer by 9:00 A.M., ET, on the seventh Business Day after the
Termination Notice Date, then the Master Servicer shall appoint such proposed
successor servicer as the successor servicer. If the Master Servicer delivers
written notice to the Depositor that it does not consent to such proposed
successor servicer, or the Depositor does not make a first or second proposal
for a successor servicer, then the Master Servicer, in its sole discretion, will
appoint a successor servicer (with the consent of the
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Depositor, such consent not to be unreasonably withheld or delayed) or assume
the obligations of the Servicer itself. Notwithstanding the foregoing, any
appointment by the Depositor of the Master Servicer as the successor servicer
shall not require the consent of the Depositor.
(c) Notwithstanding any provision in this Agreement to the contrary, any
right of the Depositor to appoint a successor servicer upon a Servicer Event of
Default shall terminate if any amounts required to be remitted by the Servicer
to the Securities Administrator (including any required Monthly Advances) have
not been remitted to the Securities Administrator by the third Business Day
prior to the related Distribution Date, in which event the Master Servicer will
appoint a successor servicer or assume the obligations of the Servicer itself.
It is understood and acknowledged by the parties hereto that there will be a
period of transition (not to exceed 90 days) before the actual servicing
functions can be fully transferred to any successor servicer.
(d) Any successor to the Servicer shall be an institution that is a Xxxxxx
Mae-and Xxxxxxx Mac-approved servicer in good standing, has a net worth of at
least $25,000,000 and is willing to service the Mortgage Loans and shall execute
and deliver to the Depositor, the Trustee, the Securities Administrator and the
Master Servicer an agreement accepting such delegation and assignment, which
contains an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of such Servicer, with like effect
as if originally named as a party to this Agreement; provided, further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation shall not be downgraded,
withdrawn or qualified as a result of such assignment and delegation.
(e) In connection with such appointment and assumption, the Depositor may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree, but not in excess of the
Servicing Fee. The Depositor, the Master Servicer and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
(f) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
this Agreement (including, without limitation, (i) all legal costs and expenses
and all due diligence costs and expenses associated with an evaluation of the
potential termination of the Servicer as a result of an event of default by such
Servicer and (ii) all costs and expenses associated with the complete transfer
of servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the
Mortgage Loans in accordance with this Agreement) are not fully and timely
reimbursed by the terminated Servicer, the Master Servicer shall be entitled to
reimbursement of such costs and expenses from the Distribution Account.
(g) The successor servicer will not assume liability for the
representations and warranties of the Servicer that it replaces.
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(h) Any successor to the Servicer shall give notice to the related
Mortgagors of such change of servicer and shall, during the term of its service
as Servicer maintain in force the policy or policies that such Servicer is
required to maintain pursuant to this Agreement.
(i) No successor servicer will be responsible for delays attributable to
the Servicer's failure to deliver information, defects in the information
supplied by the Servicer or other circumstances beyond the control of the
successor servicer. The successor servicer will make arrangements with the
Servicer for the prompt and safe transfer of, and the Servicer shall provide to
the successor servicer, all necessary servicing files and records, including (as
deemed necessary by the successor servicer at such time): (i) microfiche loan
documentation, (ii) servicing system tapes, (iii) mortgage loan payment history,
(iv) collections history and (v) the trial balances, as of the close of business
on the day immediately preceding conversion to the successor servicer,
reflecting all applicable mortgage loan information. The successor servicer
shall have no responsibility and shall not be in default hereunder nor incur any
liability for any failure, error, malfunction or any delay in carrying out any
of its duties under this Agreement if any such failure or delay results from the
successor servicer acting in accordance with information prepared or supplied by
a Person other than the successor servicer or the failure of any such Person to
prepare or provide such information. The successor servicer shall have no
responsibility, shall not be in default and shall incur no liability (i) for any
act or failure to act by any third party, including the servicer, or for any
inaccuracy or omission in a notice or communication received by the successor
servicer from any third party or (ii) which is due to or results from the
invalidity, unenforceability of any Mortgage Loan with applicable law or the
breach or the inaccuracy of any representation or warranty made with respect to
any Mortgage Loan.
SECTION 7.9 Master Servicer Events of Default; Appointment of Successor.
(a) The occurrence of any one or more of the following events shall
constitute a "MASTER SERVICER EVENT OF DEFAULT":
(i) any failure by the Master Servicer (other than in its capacity as
successor servicer) to remit to the Securities Administrator for payment to
the Certificateholders any funds required to be remitted by the Master
Servicer under the terms of this Agreement;
(ii) any failure on the part of the Master Servicer (other than in its
capacity as successor servicer) duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Master
Servicer contained in this Agreement that materially and adversely affects
the interest of the Certificateholders, which continues unremedied for a
period of 30 days after the earlier of (i) the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Depositor or the Trustee, or to the Master
Servicer, the Depositor and the Trustee by the Certificateholders
representing 66-2/3% of the total Voting Interests and (ii) actual
knowledge of such failure by a Responsible Officer of the Master Servicer;
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(iii) a petition with, or decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such petition decree or
order shall have remained in force undischarged or unstayed for a period of
90 days;
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to it or of or relating to all or substantially all of its
property;
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations;
(vi) the Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into
another entity or shall permit another entity to consolidate or merge into
it, such that the resulting entity does not meet the criteria for a
successor master servicer as specified in Section 7.5;
(vii) if a representation or warranty set forth in Section 3.4 shall
prove to be incorrect as of the time made in any respect that materially
and adversely affects the interests of the Certificateholders, and the
circumstance or condition in respect of which such representation or
warranty was incorrect shall not have been eliminated or cured within 30
days after the earlier of (a) the date on which written notice of such
incorrect representation or warranty shall have been given to the Master
Servicer by the Depositor or the Trustee, or to the Master Servicer, the
Depositor and the Trustee by the Certificateholders representing 66-2/3% of
the total Voting Interests and (b) actual knowledge of such failure by a
Responsible Officer of the Master Servicer;
(viii) a sale or pledge of any of the rights of the Master Servicer
hereunder or an assignment of this Agreement by the Master Servicer or a
delegation of the rights or duties of the Master Servicer hereunder shall
have occurred in any manner not otherwise permitted hereunder and without
the prior written consent of Certificateholders representing 66-2/3% Voting
Interests; or
(ix) any failure of the Master Servicer to make any Advances required
to be made by it hereunder within two days following notice of such default
by the Trustee.
(b) If the Trustee has knowledge of any Master Servicer Event of Default
described in clauses (i) through (viii) of this Section 7.9, then, in each and
every case, subject to applicable law, so long as any such Master Servicer Event
of Default shall not have been remedied within any period of time prescribed by
this Section 7.9, if any, the Trustee, by notice in writing to the Master
Servicer may, and shall, if so directed by the Certificateholders representing
66-2/3% of the Voting Interests, terminate all of the rights and obligations of
the Master Servicer hereunder.
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If a Master Servicer Event of Default described in clause (ix) of this Section
7.9 shall occur, then, in each and every case, subject to applicable law, so
long as such Master Servicer Event of Default shall not have been remedied
within the time period prescribed by clause (ix) of this Section 7.9, the
Trustee, by notice in writing to the Master Servicer, shall promptly terminate
all of the rights and obligations of the Master Servicer hereunder and in and to
the Mortgage Loans and the proceeds thereof.
(c) On or after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer, but only in its capacity as
Master Servicer under this Agreement, whether with respect to the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee (as successor Master
Servicer) or a successor designated by the Trustee pursuant to and under the
terms of this Agreement; and the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the defaulting Master Servicer as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination.
(d) The Trustee may, if it shall be unwilling to continue to so act, or
shall, if it is unable to so act, or does not satisfy the requirements of a
successor Master Servicer, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution
servicer, master servicer, servicing or mortgage servicing institution having a
net worth of not less than $25,000,000 and meeting such other standards for a
successor master servicer as are set forth in this Agreement, as the successor
to such Master Servicer in the assumption of all of the responsibilities, duties
or liabilities of a master servicer, like the Master Servicer. Such successor
master servicer may be an Affiliate of the Trustee; provided, however, that,
unless such Affiliate meets the net worth requirements and other standards set
forth herein for a successor master servicer, the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Issuing Entity and the Trustee for such Affiliate's actions and omissions
in performing its duties hereunder. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted to the Master Servicer hereunder.
(e) The defaulting Master Servicer agrees to cooperate with the successor
master servicer in effecting the termination of the defaulting Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying the Servicer of the assignment of the master servicing
function and providing the successor master servicer all documents and records
in electronic or other form reasonably requested by it to enable the successor
master servicer to assume the defaulting Master Servicer's functions hereunder
and the transfer to the successor master servicer for administration by it of
all amounts which shall at the time be or should have been deposited by the
defaulting Master Servicer in the Distribution Account maintained by the
Securities Administrator and any other account or fund maintained by the Master
Servicer with respect to the Certificates or thereafter received with respect to
the Mortgage Loans.
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(f) The Trustee or the successor master servicer shall be entitled to be
reimbursed by the Master Servicer (or by the Trust Fund, if the Master Servicer
is unable to fulfill its obligations hereunder) for all reasonable and properly
documented costs associated with the transfer of master servicing from the
predecessor Master Servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to master service the Mortgage Loans properly
and effectively. If the terminated Master Servicer does not pay such
reimbursement within 30 days of its receipt of an invoice therefor, such
reimbursement shall be an expense of the Trust Fund and the successor master
servicer shall be entitled to withdraw such reimbursement from amounts on
deposit in the Distribution Account pursuant to Section 10.1(e); provided, that,
the terminated Master Servicer shall reimburse the Trust Fund for any such
expense incurred by the Trust Fund; and provided, further, that the Trustee
shall decide whether and to what extent it is in the best interest of the
Certificateholders to pursue any remedy against any party obligated to make such
reimbursement.
(g) The successor master servicer shall have no responsibility for any act
or omission of the Master Servicer prior to the issuance of any notice of
termination and shall have no liability relating to the representations and
warranties of the Master Servicer set forth in Section 3.4.
(h) No successor master servicer shall be deemed to be in default hereunder
by reason of any failure to make, or any delay in making, any remittance or
payment hereunder or any portion thereof caused by (i) the failure of the Master
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, (ii) the failure of the Master Servicer to cooperate as required by this
Agreement, (iii) the failure of the Master Servicer to deliver the Mortgage Loan
data to the Trustee as required by this Agreement or (iv) restrictions imposed
by any regulatory authority having jurisdiction over the Master Servicer.
(i) Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
to the extent provided in Section 7.4 and Section 10.5 to the extent such
reimbursement relates to the period prior to such Master Servicer's termination.
SECTION 7.10 Waiver of Defaults.
The Certificateholders representing 66-2/3% of the Voting Interests may, on
behalf of all Certificateholders, waive any default or Master Servicer Event of
Default by the Master Servicer, except that a default in the making of any
required deposit to the Distribution Account that would result in a failure of
the Securities Administrator to make any required distribution of principal of
or interest on the Certificates may only be waived with the consent of 100% of
the affected Certificateholders. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
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SECTION 7.11 Notification of Master Servicer Default.
(a) If any Master Servicer Event of Default shall occur, of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
promptly notify each Rating Agency of the nature and extent of such Master
Servicer Event of Default. The Securities Administrator or the Master Servicer
shall immediately give written notice to the Trustee upon the Master Servicer's
failure to remit Advances on the date specified herein.
(b) The Trustee shall within 45 days after the occurrence of any Master
Servicer Event of Default known to the Trustee, give written notice thereof to
the Certificateholders, unless such Master Servicer Event of Default shall have
been cured or waived prior to the issuance of such notice and within such 45-day
period.
(c) Upon termination of the Master Servicer or appointment of a successor
to the Master Servicer, in each case as provided herein, the Trustee shall
promptly mail notice thereof by first class mail to the Certificateholders at
their respective addresses appearing on the applicable register.
SECTION 7.12 Limitation on Liability of the Master Servicer.
(a) No provision of this Agreement shall be construed to relieve the Master
Servicer from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that the duties and
obligations of the Master Servicer shall be determined solely by the express
provisions of this Agreement, and the Master Servicer 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 Master Servicer and, in absence of bad faith on the part
of the Master Servicer, the Master Servicer 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 Master Servicer and
conforming to the requirements of this Agreement.
(b) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
other parties hereto, 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 Master Servicer or any such Person against any liability
that would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement.
SECTION 7.13 Master Servicer Covenants.
(a) If so requested by the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Master Servicer shall (i) notify the Depositor in
writing of (A) any material litigation or governmental proceedings pending
against the Master Servicer and (B) any affiliations or relationships that
develop following the closing date of this transaction between the Master
Servicer and any of the transaction parties (and any other parties identified in
writing by the
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requesting party) with respect to this transaction, and (ii) provide to the
Depositor a description of such proceedings, affiliations or relationships.
(b) As a condition to the succession to the Master Servicer as master
servicer under this Agreement by any Person (i) into which the Master Servicer
may be merged or consolidated, or (ii) which may be appointed as a successor to
the Master Servicer, the Master Servicer shall provide to the Depositor, at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Depositor, all information reasonably requested by the Depositor in order
to comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to any class of asset-backed securities.
SECTION 7.14 Assignment or Delegation of Duties by Master Servicer.
Except as expressly provided herein, the Master Servicer shall not assign
or transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Master Servicer hereunder, unless the Depositor shall have consented to such
action (such consent of the Depositor not to be unreasonably withheld or
delayed); provided, however, that the Master Servicer shall have the right
without the prior written consent of the Depositor to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer to
perform and carry out any duties, covenants or obligations to be performed and
carried out by the Master Servicer hereunder. In no case, however, shall any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of such
permitted assignment shall be given promptly by the Master Servicer to the
Depositor and the Indenture Trustee. If, pursuant to any provision hereof, the
duties of the Master Servicer are transferred to a successor master servicer,
the entire amount of compensation payable to the Master Servicer pursuant
hereto, including amounts payable to or permitted to be retained or withdrawn by
the Master Servicer pursuant to Section 7.1, shall after such transfer be
payable to such successor master servicer.
SECTION 7.15 Indemnification.
The Master Servicer agrees to indemnify the Depositor, the Seller, the
Issuing Entity, the Trustee, the Securities Administrator and the Servicer and
hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses that the Depositor, the Seller, the Issuing Entity,
the Trustee, the Securities Administrator or the Servicer may sustain as a
result of the Master Servicer's willful malfeasance, bad faith or negligence in
the performance of its duties or by reason of reckless disregard of its
obligations and duties hereunder. The Depositor, the Issuing Entity, the
Trustee, the Seller, the Securities Administrator or the Servicer shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or with respect to the Mortgage Loans entitling the
Depositor, the Seller, the Issuing Entity, the Trustee, the Securities
Administrator or the Servicer to indemnification under this Section 7.15,
whereupon the Master Servicer shall assume the defense of any such claim and pay
all expenses
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in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim.
SECTION 7.16 Opinion.
On or before the Closing Date, the Master Servicer shall cause to be
delivered to other parties hereto and the Underwriter one or more Opinions of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the recipients thereof, as to the due authorization, execution and delivery
of this Agreement by the Master Servicer and the enforceability thereof.
ARTICLE VIII
THE SECURITIES ADMINISTRATOR
SECTION 8.1 Duties of the Securities Administrator.
(a) The Securities Administrator shall perform such duties and only such
duties that are specifically set forth in the this Agreement.
(b) The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that the Securities Administrator shall not be responsible for the accuracy or
content of any resolution, certificate statement, opinion, report, document,
order or other instrument furnished by the Servicer, the Seller, the Master
Servicer or the Depositor. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Securities
Administrator shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, the Securities Administrator will provide notice to the
Certificateholders. Notwithstanding the foregoing, the Securities Administrator
shall have no obligation to reconcile, recompute or recalculate any remittances
or reports of the Servicer or the Cap Provider, and the Securities Administrator
may fully rely upon and shall have no liability with respect to information
provided by the Servicer or the Cap Provider.
(c) The Securities Administrator is hereby appointed as Paying Agent. On
each Distribution Date, the Securities Administrator, as Paying Agent, shall
make monthly payments and the final payment to the Certificateholders as
provided in Section 10.5 of this Agreement. On each Distribution Date, the
Securities Administrator shall make Distribution Date Reports available as
provided in Section 5.5.
(d) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Securities Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuing Entity and shall be, in the Securities
Administrator's opinion, no less favorable to the Issuing Entity than would be
available from unaffiliated parties.
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(e) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Securities Administrator shall be subject to the same
standard of care and have the same rights, indemnifications and immunities as
the Trustee hereunder, including, without limitation, the right to reimbursement
and indemnification on behalf of the Issuing Entity from funds in the
Distribution Account for all losses, costs and expenses of any kind or nature
(including without limitation attorneys' fees and disbursements) incurred by the
Securities Administrator (including without limitation in its various capacities
as Paying Agent, Certificate Paying Agent and Certificate Registrar) in
connection with the performance of its duties hereunder.
SECTION 8.2 Records.
The Securities Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Issuing Entity and the
Depositor upon reasonable advance notice at any time during normal business
hours.
SECTION 8.3 Compensation.
The compensation of the Securities Administrator shall be paid by the
Master Servicer from its Master Servicing Fee.
SECTION 8.4 No Joint Venture.
Nothing contained in this Agreement (a) shall constitute the Securities
Administrator, the Master Servicer, the Servicer, the Seller or the Depositor,
respectively, and any of the Issuing Entity or the Trustee, as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, (b) shall be construed to impose any joint liability as
such on any of them or (c) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf of
the others.
SECTION 8.5 Other Activities of Securities Administrator and the Depositor.
Nothing herein shall prevent the Securities Administrator, the Depositor or
their respective Affiliates from engaging in other businesses or, in its sole
discretion, from acting in a similar capacity as an Securities Administrator for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuing Entity.
SECTION 8.6 Certain Matters Affecting the Securities Administrator.
(a) The Securities Administrator may request and conclusively rely upon,
and shall be fully 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 reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties.
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(b) The Securities Administrator may consult with counsel of its selection
and any advice of such counsel or 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.
(c) The Securities Administrator shall not be under any obligation to
exercise any of the 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
Securities Administrator reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be incurred therein or
thereby.
(d) The Securities Administrator shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Securities Administrator 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 to do so
by the Certificateholders entitled to at least 25% of the Voting Interests;
provided, however, that if the payment within a reasonable time to the
Securities Administrator of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Securities Administrator not reasonably assured to the Securities Administrator
by such Certificateholders, the Securities Administrator may require reasonable
indemnity satisfactory to it against such expense, or liability from such
Certificateholders as a condition to taking any such action.
(f) The Securities Administrator may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents, nominees,
attorneys or a custodian.
(g) The Securities Administrator shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of the
investment security).
(h) The Securities Administrator shall not be deemed to have notice of any
Indenture Event of Default, or Servicer Event of Default or Master Servicer
Event of Default unless a Responsible Officer of the Securities Administrator
has actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Securities Administrator at the Corporate
Trust Office of the Securities Administrator, and such notice references the
Issuing Entity and this Agreement. The Securities Administrator shall not have
any responsibility or liability for any action or failure to act by the Master
Servicer, the Servicer, or the Seller, nor shall the Securities Administrator be
obligated to supervise or monitor the performance of the Master Servicer,
Servicer or the Seller hereunder or otherwise;
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(i) The rights, privileges, protections, immunities and benefits given to
the Securities Administrator, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, each Paying Agent,
the Certificate Registrar, agent, custodian and other Person employed to act
hereunder;
(j) The right of the Securities Administrator to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Securities Administrator shall not be answerable for other than its negligence
or willful misconduct in the performance of such act.
(k) Notwithstanding anything in this Agreement to the contrary, in no event
shall the Securities Administrator be liable to any Person for any act or
omission of the Master Servicer, the Servicer, the Trustee, the Cap Provider,
the Seller or the Custodian.
SECTION 8.7 Securities Administrator Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
authentication and countersignature on the Certificates) shall be taken as the
statements of the Issuing Entity, and neither the Securities Administrator, the
Paying Agent nor the Certificate Registrar assumes any responsibility for the
correctness of the same. The Securities Administrator does not make any
representation or warranty as to the validity or sufficiency of this Agreement,
or of the Certificates (other than the countersignature on the Certificates) or
of any Mortgage Loan or related document or of MERS or the MERS System. The
Securities Administrator shall not be accountable for the use or application by
the Depositor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the Mortgage Loans or deposited in or withdrawn from the Custodial
Account by the Servicer. The Securities Administrator shall not have any duty
(a) to see to any recording, filing or depositing of this Agreement or any
financing statement or continuation statement evidencing a security interest, or
to see to the maintenance of any such recording, filing or depositing thereof,
(b) to see to any insurance or (c) to see to the payment or discharge of any
tax, assessment or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund.
SECTION 8.8 Securities Administrator May Own Certificates.
The Securities Administrator, in its individual capacity, or in any
capacity other than as Securities Administrator hereunder, may become the owner
or pledgee of any Certificates with the same rights as it would have if it were
not Securities Administrator, and may otherwise deal with the parties hereto.
SECTION 8.9 Eligibility Requirements for the Securities Administrator.
The Securities Administrator hereunder shall at all times be an entity duly
organized and validly existing under the laws of the United States of America or
any state thereof, authorized under such laws to exercise corporate trust
powers, and shall each have a combined capital and surplus of at least
$50,000,000, a minimum long-term debt rating in the third highest rating
category by each Rating Agency, a minimum short-term debt rating in the second
highest rating
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category by a Rating Agency, and shall each be subject to supervision or
examination by federal or state authority. If such entity 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 8.10, the combined capital and surplus of such entity 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 Securities Administrator shall
cease to be eligible in accordance with the provisions of this Section 8.10, the
Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 8.11.
SECTION 8.10 Resignation and Removal of the Securities Administrator.
(a) The Securities Administrator (including the Securities Administrator as
Paying Agent and as Certificate Registrar) may at any time resign and be
discharged from the trust hereby created by giving written notice thereof to the
Depositor, the Trustee, the Master Servicer, the Servicer and each Rating
Agency. Upon receiving such notice of resignation of the Securities
Administrator, the Depositor shall promptly appoint a successor Securities
Administrator that meets the requirements in Section 8.11, by written
instrument, in duplicate, one copy of which instrument shall be delivered to
each of the resigning Securities Administrator and one copy to the successor
Securities Administrator. If no successor Securities Administrator shall have
been so appointed and having accepted appointment within 60 days after the
giving of such notice of resignation, the resigning Securities Administrator may
petition any court of competent jurisdiction for the appointment of a successor
Securities Administrator.
(b) If at any time the Securities Administrator shall cease to be eligible
in accordance with the provisions of Section 8.11 or if at any time the
Securities Administrator shall be legally unable to act, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Securities Administrator or of its
property shall be appointed, or any public officer shall take charge or control
of the Securities Administrator or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor may remove the
Securities Administrator (including the Securities Administrator as Paying Agent
and as Certificate Registrar). If the Depositor removes the Securities
Administrator under the authority of the immediately preceding sentence, the
Depositor shall promptly appoint a successor Securities Administrator that meets
the requirements of Section 8.11, by written instrument, in duplicate, one copy
of which instrument shall be delivered to the successor Securities Administrator
and one copy to each of the Master Servicer and the Servicer.
(c) The Certificateholders entitled to at least 51% of the Voting Interests
may at any time remove the Securities Administrator (including the Securities
Administrator as Paying Agent and as Certificate Registrar) and appoint a
successor Securities Administrator by written instrument or instruments signed
by such Certificateholders or their attorneys-in-fact duly authorized, one
complete set of which instruments shall be delivered to the Depositor, one
complete set to the Securities Administrator so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Certificateholders, the Securities Administrator and the Master Servicer and the
Servicer by the Depositor.
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SECTION 8.11 Successor Securities Administrator.
(a) Any successor Securities Administrator appointed as provided in Section
8.11 shall execute, acknowledge and deliver to the Depositor, the Issuing
Entity, the Trustee, the Servicer, the Master Servicer and to its predecessor
Securities Administrator an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Securities Administrator
shall become effective, and such successor Securities Administrator without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Securities Administrator. The Depositor, the Issuing
Entity, the Trustee, the Servicer, the Master Servicer and the predecessor
Securities Administrator shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Securities Administrator, all such rights, powers,
duties and obligations.
(b) No successor Securities Administrator shall accept appointment as
provided in this Section 8.12 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 8.10, and the appointment of such successor Securities Administrator
shall not result in a downgrading of the Classes of Certificates rated by any
Rating Agency, as evidenced by a letter from each Rating Agency.
(c) Upon acceptance of appointment by a successor Securities Administrator
as provided in this Section 8.12, the successor Securities Administrator shall
mail notice of such appointment hereunder to all Holders of Certificates at
their addresses as shown in the Certificate Register and to the Rating Agencies.
SECTION 8.12 Merger or Consolidation of Securities Administrator.
Any corporation or association into which the Securities Administrator may
be merged or converted or with which it may be consolidated or any corporation
or association resulting from any merger, conversion or consolidation to which
the Securities Administrator shall be a party, or any corporation or association
succeeding to the business of the Securities Administrator shall be the
successor of the Securities Administrator hereunder, provided such corporation
or association shall be eligible under the provisions of Section 8.10, 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 8.13 Limitation of Liability.
(a) No provision of this Agreement shall be construed to relieve the
Securities Administrator 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 Securities Administrator shall
be determined solely by the express provisions of this Agreement; the
Securities Administrator 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 Securities Administrator and, in
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the absence of bad faith on the part of the Securities Administrator, the
Securities Administrator 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 Securities Administrator that
conform to the requirements of this Agreement;
(ii) The Securities Administrator shall not be liable for an error of
judgment made in good faith by a Responsible Officer of the Securities
Administrator unless it shall be proved that the Securities Administrator
was negligent in ascertaining or investigating the facts related thereto;
(iii) The Securities Administrator shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the consent or at the direction of
Certificateholder as provided herein relating to the time, method and place
of conducting any remedy pursuant to this Agreement, or exercising or
omitting to exercise any trust or power conferred upon the Securities
Administrator under this Agreement; and
(iv) The Securities Administrator shall not be required to expend or
risk its own funds or otherwise incur financial or other liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or indemnity satisfactory to it against such risk
or liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement.
SECTION 8.14 Opinion.
On or before the Closing Date, the Securities Administrator shall cause to
be delivered to other parties hereto and the Underwriters one or more Opinions
of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the recipients thereof, as to the due authorization, execution
and delivery of this Agreement by the Securities Administrator and the
enforceability thereof.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.1 Duties of Trustee.
(a) The Trustee undertakes to perform only such duties as are specifically
set forth in this Indenture and shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this Agreement
and no implied covenants or obligations shall be read into this Agreement
against the Trustee.
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(b) In the absence of bad faith on its part, the Trustee may conclusively
rely upon certificates or opinions furnished to the Trustee as to the truth of
the statements and the correctness of the opinions expressed therein; however,
the Trustee shall examine the certificates and opinions to determine whether or
not they conform on their face to the requirements of this Agreement.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, its own willful misconduct or its own
bad faith, except that:
(i) this paragraph does not limit the effect of paragraphs (a) and (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers; provided, that the Trustee's conduct does not constitute
willful misconduct, negligence or bad faith; and
(iv) the Trustee shall not be required to take notice or be deemed to
have notice or knowledge of (A) any failure by the Servicer or the Master
Servicer to comply with their obligations hereunder or (B) any Servicer
Event of Default or a Master Servicer Event of Default, unless a
Responsible Officer of the Trustee assigned to and working in its corporate
trust department obtains actual knowledge of such Servicer Event of Default
or Master Servicer Event of Default or shall have received written notice
thereof. In the absence of such actual knowledge or notice, the Trustee may
conclusively assume that there is no Servicer Event of Default or Master
Servicer Event of Default.
(d) Money held in trust by the Trustee, if any, need not be segregated from
other funds except to the extent required by law or the terms of this Agreement.
(e) No provision of this Agreement shall require the Trustee to expend,
advance or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
(f) Every provision of this Agreement relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 9.1 and Section 9.2.
(g) The Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Trust Fund, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Trustee is a party, except as expressly provided (i) in accordance with the
powers granted to and the authority conferred upon the Trustee pursuant to
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this Agreement and (ii) in accordance with any document or instruction delivered
to the Trustee pursuant to the terms of this Agreement. No implied duties or
obligations shall be read into this Agreement against the Trustee. The Trustee
agrees that it will promptly take all action as may be necessary to discharge
any liens on any part of the Trust Fund that result from actions by, or claims
against itself (in its individual capacity, and not in the capacity of Trustee)
that are not related to the administration of the Trust Fund.
SECTION 9.2 Rights of Trustee.
(a) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel, which shall not be at the
expense of the Trustee. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on an Officer's Certificate or
Opinion of Counsel. The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act.
(b) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, provided that the Trustee shall not be
responsible for any misconduct or negligence on the part if any agent or
attorney appointed with due care by it hereunder.
(c) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, that the Trustee's conduct does not constitute willful
misconduct, negligence or bad faith.
(d) The Trustee may consult with counsel, and any Opinion of Counsel with
respect to legal matters relating to this Agreement and the Certificates shall
be full and complete authorization and protection from liability in respect to
any action taken, omitted or suffered by it hereunder in good faith and in
accordance with any Opinion of Counsel of such counsel.
(e) In the event that the Trustee is also acting as Master Servicer
hereunder, the rights and protections afforded to the Trustee pursuant to this
Article IX shall be afforded to such Master Servicer.
(f) The permissive rights of the Trustee enumerated herein shall not be
construed as duties.
(g) In order to comply with its duties under the USA Patriot Act of 2001,
the Trustee shall obtain and verify certain documentation from the other parties
to this Agreement, including, but not limited to, each party's name, address,
and other identifying information.
SECTION 9.3 Trustee Not Liable for Certificates.
The Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates or of any Mortgage Loan, or related
document save that the Trustee represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its valid and binding
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obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (a) applicable bankruptcy and insolvency laws
and other laws affecting the enforcement of the rights of creditors generally,
and (b) general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Trustee shall not be
accountable for the use or application by the Depositor of funds paid to the
Depositor in consideration of the assignment of the Mortgage Loans to the Trust
Fund by the Depositor or for the use or application of any funds deposited into
the Custodial Account, Distribution Account or any other fund or account
maintained with respect to the Certificates. The Trustee shall not be
responsible for the legality or validity of this Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates issued
or intended to be issued hereunder. The Trustee shall not have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement.
SECTION 9.4 Trustee May Own Certificates.
The Trustee and any Affiliate or agent of the Trustee, in its individual or
any other capacity may become the owner or pledgee of Certificates and may
transact banking and trust business with the other parties hereto and their
Affiliates with the same rights it would have if it were not the Trustee or such
Affiliate or agent.
SECTION 9.5 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) an institution insured by
the FDIC, (ii) a corporation or national banking association, organized and
doing business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority and (iii) not an Affiliate of the
Servicer, the Master Servicer or the Securities Administrator. If such
corporation or national banking 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, the
combined capital and surplus of such corporation or national banking 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 provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.5.
SECTION 9.6 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice thereof to the Depositor, the Servicer,
the Master Servicer and the Securities Administrator. Upon receiving such notice
of resignation, the Depositor will promptly appoint a successor trustee by
written instrument, one copy of which instrument shall be delivered to the
resigning Trustee, one copy to the successor trustee and one copy each to the
Servicer, the Master Servicer and the Securities Administrator. If no successor
trustee shall have been so appointed and shall have accepted appointment within
30 days after the giving of such
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notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.5 and shall fail to resign after written
request therefor by the Depositor, (ii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee 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, (iii) the Trustee shall fail to
observe or perform in any material respect any of the covenants or agreements of
the Trustee contained in this Agreement or (iv) the continued use of the Trustee
would result in a downgrading, withdrawal or qualification of the rating by any
Rating Agency of any Class of Offered Certificates with a rating, then the
Depositor shall remove the Trustee and the Depositor shall appoint a successor
trustee by written instrument, one copy of which instrument shall be delivered
to the Trustee, one copy to the successor trustee and one copy each to the
Servicer, the Master Servicer and the Securities Administrator.
(c) The Holders of a Majority in Interest of the Certificates may at any
time upon 30 days written notice to the Trustee and to the Depositor remove the
Trustee by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee and one copy each to the
Servicer, the Master Servicer and the Securities Administrator. The Depositor
shall thereupon appoint a successor trustee in accordance with this Section
mutually acceptable to the Depositor, the Servicer, the Master Servicer and the
Securities Administrator.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 9.7.
SECTION 9.7 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 9.6 shall
execute, acknowledge and deliver to the Depositor, the Servicer, the Master
Servicer, the Securities Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee herein. A
predecessor trustee shall deliver to the successor trustee, all Mortgage Files
and documents and statements related to each Mortgage File held by it hereunder,
if any, and shall duly assign, transfer, deliver and pay over to the successor
trustee the entire Trust Fund, together with all necessary instruments of
transfer and assignment or other documents properly executed necessary to effect
such transfer and such of the records or copies thereof maintained by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the successor Trustee and
the predecessor trustee shall execute and deliver such other instruments and do
such other things as may
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reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 9.5.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section, the predecessor trustee shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to any Rating Agency. The expenses of such
mailing shall be borne by the predecessor trustee.
SECTION 9.8 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the business of the Trustee, shall be the successor to the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided that such Person shall be eligible under the provisions of Section 9.5.
SECTION 9.9 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time the Trustee,
the Depositor or a Holder of a Majority in Interest of each Class of
Certificates shall have the power from time to time to appoint one or more
Persons, approved by the Trustee, to act either as co-trustees jointly with the
Trustee, or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee has been advised by the Trustee that such separate trustee or co-trustee
is necessary or advisable) under the laws of any state in which a property
securing a Mortgage Loan is located or for the purpose of otherwise conforming
to any legal requirement, restriction or condition in any state in which a
property securing a Mortgage Loan is located or in any state in which any
portion of the Trust Fund is located. The separate Trustees, co-trustees, or
custodians so appointed shall be trustees or custodians for the benefit of all
the Certificateholders and shall have such powers, rights and remedies as shall
be specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
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(ii) all other 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, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations, including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee or the Certificateholders evidencing a Majority in
Interest of the Voting Interests may at any time accept the resignation of
or remove any separate trustee, co-trustee or custodian, so appointed by it
or them, if such resignation or removal does not violate the other terms of
this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article IX. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy given
to the Trustee.
(d) Any separate trustee, co-trustee or custodian 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, co-trustee or custodian 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.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
9.5 and no notice to Certificateholders of the appointment shall be required
under Section 9.7.
(f) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the co-trustees
requested by the Trustee to be so appointed (which compensation shall not reduce
any compensation payable to the Trustee) and, if paid by the Trustee, shall be a
reimbursable expense pursuant to Section 9.11.
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SECTION 9.10 Indemnification of Trustee.
The Trustee and its directors, officers, employees and agents shall be
entitled to indemnification from the Trust Fund for any loss, liability or
expense incurred in connection with any legal proceeding or incurred without
negligence or willful misconduct on their part, arising out of, or in connection
with, the acceptance or administration of the trusts created hereunder or in
connection with the performance of their duties hereunder, including any
applicable fees and expenses payable pursuant to Section 9.11 and the costs and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder.
Such compensation and reimbursement shall not be limited by any provision
of law in regard to compensation of a trustee of an express trust. The
provisions of this Section 9.10 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
SECTION 9.11 Fees and Expenses of Trustee.
The Trustee shall be entitled to a fee payable by the Master Servicer from
the Master Servicing Fee. The Trustee shall be entitled to reimbursement of all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with this Agreement (including fees and expenses of its counsel
and all persons not regularly in its employment), except for expenses,
disbursements and advances incurred by the Trustee in the routine administration
of its duties hereunder and any such expenses arising from its negligence, bad
faith or willful misconduct.
ARTICLE X
TRUST ADMINISTRATION
SECTION 10.1 Distribution Account.
(a) The Securities Administrator shall establish and maintain accounts (the
"DISTRIBUTION ACCOUNT"), designated "Distribution Account of [ - ], as
Securities Administrator, f/b/o Luminent Mortgage Trust 200_-_." The
Distribution Account shall be established as an Eligible Account. All funds
required to be deposited in the Distribution Account shall be held in trust for
the Trustee until withdrawn in accordance with Section 5.2. The Securities
Administrator shall segregate and hold all funds collected and received pursuant
to Section 4.24 separate and apart from any of its own funds and general assets.
Within five Business Days following any request of the Trustee, the Securities
Administrator shall provide the Trustee with written confirmation of the
existence of such Distribution Account.
(b) Funds on deposit in the Distribution Account may be invested at the
direction of the Master Servicer, but only in Eligible Investments selected by
the Master Servicer, which Eligible Investments shall mature not later than the
Distribution Date next following the date of such investment. All income and
gain realized from any such investment shall be for the benefit of the Master
Servicer. The amount of any losses incurred in respect of any such investments
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shall be deposited in the Distribution Account by the Master Servicer out of its
own funds immediately as such losses are realized.
(c) The Distribution Account shall initially be maintained at [Name of
Securities Administrator]. If an existing Distribution Account ceases to be an
Eligible Account, the Securities Administrator shall establish a new
Distribution Account that is an Eligible Account within ten days and transfer
all funds and investment property on deposit in such existing Distribution
Account into such new Distribution Account. The Securities Administrator shall
give to the Master Servicer and the Trustee prior written notice of the name and
address of any other depository institution at which the Distribution Account is
maintained and the account number of such Distribution Account.
(d) The Securities Administrator promptly shall deposit or cause to be
deposited into the Distribution Account all amounts remitted to it by the
Servicer pursuant to Section 4.24. On each Distribution Date, the entire amount
on deposit in the Distribution Account (subject to permitted withdrawals) shall
be applied to make the required distributions of principal and/or interest on
each class of Certificates.
(e) The Securities Administrator shall make withdrawals from the
Distribution Account only for the purposes set forth in Section 10.5 and for the
following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error;
(ii) to reimburse the Master Servicer or the Servicer, as applicable,
for Monthly Advances or Servicing Advances made by any such party, such
right to reimbursement pursuant to this subclause (iii) being limited to
amounts received on or in respect of a particular Mortgage Loan (including,
for this purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related Mortgage)
which represent late recoveries (net of the applicable portion of the
Servicing Fee) of payments of principal or interest respecting which any
such Advance was made, it being understood, in the case of any such
reimbursement, that the Master Servicer's or Servicer's right thereto shall
be prior to the rights of the Certificateholders;
(iii) to reimburse the Master Servicer or the Servicer following a
final liquidation of a Mortgage Loan for any previously unreimbursed
Monthly Advances made by any such party (A) that such party determines in
good faith will not be recoverable from amounts representing late
recoveries of payments of principal or interest respecting the particular
Mortgage Loan as to which such Advance was made or from Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage Loan and/or
(B) to the extent that such unreimbursed Monthly Advances exceed the
related Liquidation Proceeds or Insurance Proceeds, it being understood, in
the case of each such reimbursement, that the Master Servicer's or
Servicer's right thereto shall be prior to the rights of the
Certificateholders;
(iv) to reimburse the Master Servicer or the Servicer from Liquidation
Proceeds for amounts expended by it in good faith in connection with the
restoration of damaged property and, to the extent that Liquidation
Proceeds after such reimbursement
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exceed the unpaid principal balance of the related Mortgage Loan, together
with accrued and unpaid interest thereon at the applicable Mortgage Rate
less the applicable Servicing Fee Rate for such Mortgage Loan to the Due
Date next succeeding the date of its receipt of such Liquidation Proceeds,
to pay to itself or the Servicer out of such excess the amount of any
unpaid assumption fees, late payment charges or other Mortgagor charges on
the related Mortgage Loan and to retain any excess remaining thereafter as
additional servicing compensation, it being understood, in the case of any
such reimbursement or payment, that such Master Servicer's or Servicer's
right thereto shall be prior to the rights of the Certificateholders;
(v) to pay to the Seller or Servicer, as applicable, with respect to
each Mortgage Loan or REO Property acquired in respect thereof that has
been purchased pursuant to this Agreement, all amounts received thereon and
not remitted on the date on which the related purchase was effected, and to
pay to the applicable party any Monthly Advances and Servicing Advances to
the extent specified in the definition of Repurchase Price;
(vi) to the extent not paid by the Servicer, to pay any insurance
premium with respect to a Mortgage Loan;
(vii) to pay to the Master Servicer income earned on the investment of
funds on deposit in the Distribution Account;
(viii) on or immediately prior to each Distribution Date, to pay to
the Master Servicer the Master Servicing Fee;
(ix) to make payment of expenses and indemnities to itself, the Master
Servicer, the Trustee, the Custodian and the Servicer pursuant to any
provision of this Agreement;
(x) to reimburse a successor master servicer (solely in its capacity
as successor master servicer), for any fee or advance occasioned by a
termination of the Master Servicer, and the assumption of such duties by
the Trustee or a successor master servicer appointed by the Trustee
pursuant to Section 7.9, in each case to the extent not reimbursed by the
terminated Master Servicer, it being understood, in the case of any such
reimbursement or payment, that the right of the Master Servicer or the
Trustee thereto shall be prior to the rights of the Certificateholders; and
(xi) to clear and terminate the Distribution Account pursuant to
Article XIII.
In connection with withdrawals pursuant to subclauses (ii), (iii) and (v)
above, the Master Servicer's or the Servicer's or such other Person's
entitlement thereto is limited to collections or other recoveries on the related
Mortgage Loan. The Securities Administrator shall therefore keep and maintain a
separate accounting for each Mortgage Loan for the purpose of justifying any
withdrawal from the Distribution Account it maintains pursuant to such
subclauses.
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SECTION 10.2 Reserve Account
(a) The Securities Administrator shall establish and maintain a time,
demand or deposit account ("RESERVE ACCOUNT") designated "Reserve Account of -[
- ], as trustee f/b/o Luminent Mortgage Trust 200_ - _." The Reserve Account
shall be established as an Eligible Account. All funds required to be deposited
in the Reserve Account shall be held for the benefit of the Certificateholders
until withdrawn in accordance with Section 10.2(b). The Trustee shall deposit in
the Reserve Account on the date received by it, any Cap Payment received for the
related Distribution Date, which amounts shall be maintained separate and apart
from any of the Trustee's own fund and general assets. Funds in the Reserve
Account shall not be invested.
(b) On each Distribution Date, the Trustee shall withdraw from the Reserve
Account any Cap Payment and any amounts deposited in the Reserve Account
pursuant to Section 10.5(a)(iii)(D), and apply it in the following order of
priority:
(i) first, to the Class A Certificates, pro rata, any Interest
Distribution Amount to the extent remaining unpaid, to be distributed
pursuant to Section 10.5(a)(iii)(A);
(ii) second, to the Class M Certificates in numeric order, any
Interest Distribution Amount to the extent remaining unpaid, to be
distributed pursuant to Section 10.5(a)(iii)(C);
(iii) third, as principal to each class of Certificates, any
Overcollateralization Deficiency Amount to the extent remaining unpaid and
to the extent of Realized Losses, to be distributed pursuant to Section
10.5(a)(iii)(B);
(iv) fourth, to each class of Certificates, pro rata, any unpaid Net
WAC Cap Carryover Amount to the extent remaining unpaid, to be distributed
pursuant to Section 10.5(a)(iii)(D);
(v) fifth, sequentially to each class of Class M Certificates in
numeric order, to pay any unpaid Applied Loss Amounts to such class to the
extent remaining unpaid, to be distributed pursuant to Section
10.5(a)(iii)(C); and
(vi) sixth, to the Class C Certificates, any remaining amount on
deposit in the Reserve Account.
(c) The Reserve Account shall not be an asset of any REMIC created pursuant
to this Agreement. The Reserve Account will constitute an "outside reserve fund"
for purposes of the REMIC Provisions. The beneficial owner of the Reserve
Account is the Class C Certificateholder. For all federal tax purposes, amounts
transferred or reimbursed to the Reserve Account in respect of the Class C
Distribution Amount shall be treated as a distribution by the Securities
Administrator from REMIC II to the Class C Interest and from the Class C
Interest to the Class C Certificateholder.
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(d) Any Net WAC Cap Carryover Amounts (exclusive of payments from the Cap
Agreement) paid by the Securities Administrator pursuant to this Section 10.2 to
the Class C Certificates, shall be accounted for by the Securities Administrator
as amounts paid first as a distribution from REMIC II to the holder of Class C
Interest and from the holder of the Class C Interest to the Class C Certificates
and then to the relevant Certificates from the Reserve Account. In addition, the
Securities Administrator shall account for the rights of Holders of the Class A
and Class M Certificates to receive payments of Net WAC Cap Carryover Amounts as
rights in limited recourse interest rate cap contracts written by the Class C
Certificates in favor of the Holders of the Class A and Class M Certificates.
(e) For federal tax return and information reporting, the right of the
Holders of the Class A and Class M Certificates to receive payments under the
Cap Agreement shall be assigned a value of zero.
SECTION 10.3 Calculation of LIBOR.
LIBOR shall be calculated in accordance with Schedule C.
SECTION 10.4 Cap Agreement.
(a) The Trustee is hereby directed to execute, deliver and perform its
obligations under the Cap Agreement on the Closing Date and thereafter on behalf
of the Holders of the Certificates. The Seller, the Servicer, the Depositor and
the Certificateholders by acceptance of their Certificates acknowledge and agree
that the Trustee shall execute, deliver and perform its obligations under the
Cap Agreement and shall do so solely in its capacity as Trustee of the Trust
Fund and not in its individual capacity.
(b) The Trustee is hereby directed to represent and warrant to the Cap
Provider under the Cap Agreement that the beneficial owner for United States
federal income tax purposes of payments made under the Cap Agreement is either:
(i) a "U.S. person" (as that term is used in section
1.1441-4(a)(3)(ii) of United States Treasury Regulations (the
"Regulations")) for United States federal income tax purposes, or
(ii) a "non-U.S. branch of a foreign person" as that term is used in
section 1.1441-4(a)(3)(ii) of the Regulations for United States federal
income tax purposes, and a "foreign person" as that term is used in section
1.6041-4(a)(4) of the Regulations for United States federal income tax
purposes.
SECTION 10.5 Priorities of Distribution.
(a) On each Distribution Date, the Securities Administrator shall withdraw
Available Funds from funds then on deposit in the Distribution Account and apply
such funds in the following order of priority:
(i) Interest Proceeds will be distributed in the following order of
priority:
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(A) first, to pay to pay the Servicing Fee, the Master Servicing
Fee and any indemnities and expenses due and payable to the Servicer,
the Master Servicer, the Securities Administrator, the Trustee and the
Custodian, if any;
(B) second, the Class A Certificates, its Interest Distribution
Amount; and
(C) third, sequentially to the Holders of each Class of Class M
Certificates in numeric order, their respective Interest Distribution
Amounts.
(ii) Principal Proceeds will be paid in the following order of
priority:
(A) On any Distribution Date prior to the Stepdown Date or if a
Trigger Event is in effect, the Principal Distribution Amount will be
distributed in the following order of priority:
(1) first, to the Class A Certificates, in reduction of
its Certificate Principal Balance, until reduced to zero;
(2) second, to each Class of Class M Certificates
sequentially in
numeric order in reduction of their respective Certificate
Principal Balances, each until reduced to zero; and
(B) On any other Distribution Date on or after the Stepdown Date
and if a Trigger Event is not in effect, the Principal Distribution
Amount will be distributed in the following order of priority:
(1) first, to the Class A Certificates, the Senior
Principal Distribution Amount, in reduction of its
Certificate Principal Balance until reduced to zero;
(2) second, to each Class of Class M Certificates,
sequentially in numeric order, its respective Class
Principal Distribution Amount, in reduction of the
Certificate Principal Balance of such class, until the
Certificate Principal Balance of such class has been reduced
to zero;
(iii) Excess Cash flow, if any, will be distributed in the following
order of priority:
(A) first, to the Class A Certificates, any unpaid amounts due
pursuant to clause (i)(B) above;
(B) second, to each Class of Class A and Class M Certificates, to
pay the Overcollateralization Deficiency Amount as principal, to be
distributed pursuant to clause (ii)(A)(1) and (2) or clause (ii)(B)(1)
and (2), as applicable, above;
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(C) third, to each Class of the Class M Certificates sequentially
in numeric order, (1) first, to pay any unpaid Interest Distribution
Amounts, and (2) second, to pay any unpaid Applied Loss Amount for
such Distribution Date and unpaid Applied Loss Amounts from a prior
Distribution Date for such Class of Class M Certificates;
(D) fourth, from amounts otherwise payable to the Class C
Certificates, to the Reserve Account, an amount equal to any unpaid
Net WAC Cap Carryover Amount, and from the Reserve Account, to the
Holders of each Class of Class A and Class M Certificates, pro rata
based upon the entitlement of each class, any unpaid Net WAC Cap
Carryover Amount;
(E) fifth, to the Class C Certificates, the Class C Distributable
Amount (in respect of the Class C Interest); and
(F) to the Class R and RX Certificates (from their respective
REMICs), any remaining amount.
(b) Amounts distributed to the Residual Certificates pursuant to Section
10.5(a)(iii)(F) above on any Distribution Date shall be allocated among the
Residual Interests represented thereby such that each such interest is allocated
the excess of funds available to the related REMIC over required distributions
to the REMIC Regular Interests and/or Regular Certificates of such REMIC on such
Distribution Date.
(c) Amounts in the Reserve Account will be applied on each Distribution
Date as set forth in Section 10.2.
(d) On each Distribution Date, all amounts representing (i) Prepayment
Premiums in respect of the Mortgage Loans received during the related Prepayment
Period and (ii) any Non-Mortgagor Prepayment Premium Payment Amount received
during the related Prepayment Period shall be distributed to the Class P
Certificate. The payment of the foregoing amounts shall not reduce the
Certificate Principal Balance of the Class P Certificates. On the Distribution
Date immediately following the expiration of the latest Prepayment Premium term
as identified on the Mortgage Loan Schedule, or on any Distribution Date
thereafter, the Class P Certificates (in respect of the Class P Interest) shall
be entitled to receive $100.00 in retirement of the principal balance of the
REMIC regular interest represented by the Class P Certificates, which
distribution shall be made immediately before any distributions pursuant to
Section 10.5(a)(iii) on such Distribution Date.
SECTION 10.6 Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Securities Administrator
shall determine the total amount of Realized Losses, with respect to the
Prepayment Period related to the Distribution Date based upon information from
the Servicer. If on any Distribution Date, after giving effect to all
distributions on the Certificates on such Distribution Date and the increase of
Certificate Principal Balance as a result of Subsequent Recoveries, the
aggregate Certificate Principal Balance of the Certificates exceeds the
aggregate Scheduled Principal Balance of the Mortgage Loans for such
Distribution Date (such excess, an "APPLIED LOSS
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AMOUNT"), the Certificate Principal Balance of the Class M Certificates will be
reduced in inverse order of priority of distribution. Applied Loss Amounts will
be allocated in reduction of the Certificate Principal Balance to the Class M
Certificates in reverse order of their respective numerical Class designations
until the respective Certificate Principal Balance of each such Class is reduced
to zero.
(b) Any Applied Loss Amount allocated to a Class of Certificates or any
reduction in the Certificate Principal Balance of a Class of Certificates
pursuant to Section 10.6(a) above shall be allocated among the Certificates of
such Class in proportion to their respective Certificate Principal Balance.
(c) Any allocation of the Applied Loss Amount to a Certificate or any
reduction in the Certificate Principal Balance of a Certificate pursuant to
Section 10.6(a) above shall be accomplished by reducing the Certificate
Principal Balance thereof immediately following the distributions made on the
related Distribution Date in accordance with the definition of Certificate
Principal Balance.
SECTION 10.7 REMIC Distributions.
(a) On each Distribution Date, the following amounts, in the following
order of priority, shall be distributed by REMIC I to REMIC II on account of the
Uncertificated REMIC I Regular Interests and distributed to the holders of the
Class R Certificates (in respect of the Class R-I Interest), as the case may be:
(i) first, to the extent of the Available Funds to each Uncertificated
REMIC I Regular Interest (other than Uncertificated REMIC I Regular
Interest LTP), pro rata, in an amount equal to (A) the Uncertificated
Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates. Amounts payable
as Uncertificated Interest in respect of Uncertificated REMIC I Regular
Interest LTZZ shall be reduced and deferred when the REMIC I
Overcollateralized Amount is less than the REMIC I Overcollateralization
Target Amount, by the lesser of (x) the amount of such difference and (y)
the Maximum LTZZ Uncertificated Interest Deferral Amount, and such amount
shall be payable to each Uncertificated REMIC I Regular Interest (other
than Uncertificated REMIC I Regular Interest LTAA, Uncertificated REMIC I
Regular Interest LTZZ and Uncertificated REMIC I Regular Interest LTP) in
the same proportion as the Overcollateralization Deficiency Amount is
allocated to the Corresponding Certificates and the Uncertificated
Principal Balance of Uncertificated REMIC I Regular Interest LTZZ shall be
increased by such amount;
(ii) to the Uncertificated REMIC I Regular Interests, in an amount
equal to the remainder of the Available Funds for such Distribution Date
after the distributions made pursuant to clause (i) above, allocated as
follows:
(1) 98.00% of such remainder (other than amounts payable under
clause (3) below), to Uncertificated REMIC I Regular Interest LTAA and
Uncertificated REMIC I Regular Interest LTP, until the Uncertificated
Balance of such Uncertificated REMIC I Regular Interest is reduced to
zero, provided,
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however, that REMIC I Regular Interest LTP shall not be reduced until
the Distribution Date immediately following the expiration of the
latest Prepayment Premium or any Distribution Date thereafter, at
which point such amount shall be distributed to Uncertificated REMIC I
Regular Interest LTP, until $100 has been distributed pursuant to this
clause;
(2) 2.00% of such remainder (other than amounts payable under
clause (3) below) first, to each Uncertificated REMIC I Regular
Interest (other than Uncertificated REMIC I Regular Interest LTAA,
Uncertificated REMIC I Regular Interest LTZZ and Uncertificated REMIC
I Regular Interest LTP), 1.00% and in the same proportion as principal
payments are allocated to the Corresponding Certificates, until the
Uncertificated Principal Balance of such Uncertificated REMIC I
Regular Interests are reduced to zero and second, to Uncertificated
REMIC I Regular Interest LTZZ, until the Uncertificated Principal
Balance of such Uncertificated REMIC I Regular Interest is reduced to
zero; and
(3) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-I Interest);
provided, however, that (i) 98.00% and (ii) 2.00% of any principal payments
that are attributable to an Overcollateralization Release Amount shall be
allocated to (i) Uncertificated REMIC I Regular Interest LTAA and REMIC I
Regular Interest LTP and (ii) Uncertificated REMIC I Regular Interest LTZZ,
respectively; and
(iii) on each Distribution Date, all amounts representing Prepayment
Premiums received in respect of the Mortgage Loans shall be distributed by
REMIC I to Uncertificated REMIC I Regular Interest LTP. The payments of the
foregoing amounts shall not reduce the Uncertificated Principal Balance of
Uncertificated REMIC I Regular Interest LTP.
(b) Amounts distributed to the Class P Certificates pursuant to Section
10.5(d) and any distributions to the Class C Certificates shall be deemed
distributed to the Corresponding Class of Uncertificated REMIC II Regular
Interests and then to the respective Corresponding Class of Certificates.
(c) The following losses shall be deemed to be allocated as follows:
(i) The aggregate amount of any Net Prepayment Interest Shortfalls and
the aggregate amount of any Relief Act Reductions incurred in respect of
the Mortgage Loans for any Distribution Date shall be deemed to be
allocated to Uncertificated Interest payable to each Uncertificated REMIC I
Regular Interest (other than Uncertificated REMIC I Regular Interest LTAA)
pro rata based on, and to the extent of, one month's interest at the then
applicable respective Uncertificated REMIC I Pass-Through Rate on the
respective Uncertificated Principal Balance of each such Uncertificated
REMIC I Regular Interest; and
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(ii) All Realized Losses on the Mortgage Loans shall be deemed to be
allocated on each Distribution Date to the following Uncertificated REMIC I
Regular Interests in the specified percentages, as follows: first, to
Uncertificated Interest payable to (i) Uncertificated REMIC I Regular
Interest LTAA and Uncertificated REMIC I Regular Interest LTP and (ii)
Uncertificated REMIC I Regular Interest LTZZ up to an aggregate amount
equal to the REMIC I Interest Loss Allocation Amount, 98.00% and 2.00%,
respectively; second, to the Uncertificated Principal Balances of
Uncertificated REMIC I Regular Interest LTAA and Uncertificated REMIC I
Regular Interest LTZZ up to an aggregate amount equal to the REMIC I
Principal Loss Allocation Amount, 98.00% and 2.00%, respectively; third, to
the Uncertificated Principal Balances of Uncertificated REMIC I Regular
Interest LTAA, Uncertificated REMIC I Regular Interest LTM2 and
Uncertificated REMIC I Regular Interest LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Principal Balance of Uncertificated
REMIC I Regular Interest LTM2 has been reduced to zero; and fourth, to the
Uncertificated Principal Balances of Uncertificated REMIC I Regular
Interest LTAA, Uncertificated REMIC I Regular Interest LTM1 and
Uncertificated REMIC I Regular Interest LTZZ, 98.00%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of Uncertificated
REMIC I Regular Interest LTM1 has been reduced to zero;
(d) Notwithstanding anything to the contrary contained herein, the above
distributions in this Section 10.7 (other than with respect to the Certificates
that are deemed distributions, and distributions of funds to the Certificates)
shall be made only in accordance with Sections 10.5 and 10.6 hereof.
(e) It is the intention of all of the parties hereto that the Class C
Certificates receive all principal and interest received by the Trust on the
Mortgage Loans that is not otherwise distributable to any other Class of Regular
Certificates or REMIC Regular Interests. If the Securities Administrator
determines that the Residual Certificates are entitled to any distributions, the
Securities Administrator, prior to any such distribution to any Residual
Certificate, shall notify the Depositor of such impending distribution. Upon
such notification, the Depositor will request an amendment to the Agreement to
revise such mistake in the distribution provisions. The Residual Certificate
Holders, by their acceptance of their Certificates, and the Master Servicer
hereby agree and no further consent shall be necessary, notwithstanding anything
to the contrary in this Agreement.
SECTION 10.8 Indemnification.
(a) The Depositor, the Servicer, the Master Servicer, the Securities
Administrator and the Trustee, and any director, officer, employee or agent of
the Depositor, the Servicer, the Master Servicer, the Securities Administrator
or the Trustee, 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 or any other
unanticipated or extraordinary expense, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence (or
gross negligence in the case of the Depositor) in the performance of such
Person's duties hereunder or by reason of reckless disregard of such Person's
obligations and duties hereunder. None of the Depositor, the Servicer, the
Master Servicer or the Securities
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Administrator shall be under any 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 each of the Depositor, the Servicer, the Master Servicer and the
Securities Administrator may in its respective sole discretion undertake any
such claim 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, the Servicer, the Master
Servicer and the Securities Administrator shall be entitled to be reimbursed
therefor out of the Distribution Account.
(b) The Securities Administrator and its officers, directors, employees and
agents will be entitled to recover from the Trust Fund from amounts held in the
Payment Account, and shall be indemnified from the Trust Fund for, all
reasonable out-of-pocket expenses, disbursements, and advances, including costs
of collection, upon any Indenture Event of Default, any breach of this Agreement
or any loss, liability, expense, claim or legal action (including any pending or
threatened claim or legal action) incurred or made by any of them in the
performance of their duties under this Agreement (including the reasonable
compensation, expenses and disbursements of its counsel), except any such
expense, loss, liability, disbursement or advance as may arise from its
negligence or intentional misconduct. If funds in the Distribution Account are
insufficient therefor, the Securities Administrator shall recover such expenses
from future funds deposited in the Distribution Account. Such compensation and
reimbursement obligation shall not be limited by any provision of law in regard
to the compensation of a Securities Administrator of an express trust. Such
obligations shall survive the termination of this Agreement and the removal or
resignation of the Securities Administrator.
ARTICLE XI
THE CERTIFICATES
SECTION 11.1 The Certificates.
(a) The Certificates shall be substantially in the forms attached hereto as
Exhibit G-1, Exhibit G-2, Exhibit G-3, Exhibit G-4, Exhibit G-5 and Exhibit G-6.
The Certificates shall be issuable in registered form, in the minimum
denominations and percentage interests and aggregate denominations per Class set
forth in the Preliminary Statement.
(b) Subject to Section 13.2 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (i) by wire transfer in immediately available funds to the account of
such holder at a bank or other entity having appropriate facilities therefor, if
such Holder has so notified the Securities Administrator at least five Business
Days prior to the related Record Date or (ii) by check mailed by first class
mail to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
(c) The Certificates shall be executed by manual or facsimile signature on
behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed,
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authorized to sign on behalf of the Securities Administrator shall bind the
Securities Administrator, 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 Securities Administrator 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 Securities Administrator shall
authenticate the Certificates to be issued at the written direction of the
Depositor or any Affiliate thereof.
SECTION 11.2 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Securities Administrator, as Certificate Registrar, shall maintain,
or cause to be maintained in accordance with the provisions of Section 11.6
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 Securities Administrator 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 Securities Administrator 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 Securities Administrator. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator 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 Securities
Administrator 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 canceled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator's customary procedures.
(b) No transfer of a Certificate other than an Offered Certificate shall be
made unless such transfer is (a) made between affiliates of the Depositor
(inclusive of the Depositor), (b) by the Depositor to a trust for which it is
the sponsor, (c) made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under such Act and such state securities laws or (d)
to the indenture
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trustee under the Indenture. In the event that a transfer other than a transfer
to the indenture trustee under an Indenture is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
the transfer of a Private Certificate shall (i) certify to the Securities
Administrator in writing the facts surrounding the transfer in substantially the
forms set forth in Exhibit H (the "TRANSFEROR CERTIFICATE") and (ii) deliver to
the Securities Administrator at the expense of the transferor an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities Act. Such Certificateholder's prospective transferee shall execute
and deliver to the Securities Administrator a letter substantially in the form
of either Exhibit I-1 (the "INVESTMENT LETTER") or Exhibit I-2 (the "RULE 144A
Letter"). The Depositor shall provide to any Holder of a Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Securities Administrator shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request in the Securities Administrator's
possession to meet its obligation under the preceding sentence. Each Holder of a
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor and the Securities Administrator against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(c) No transfer of an ERISA Restricted Certificate (other than a transfer
to the indenture trustee under an Indenture) shall be made unless the Securities
Administrator shall have received a Benefit Plan Affidavit substantially in the
form of Exhibit J including (i) a representation from the transferee of such
Certificate to the effect that such transferee is not an employee benefit plan
or arrangement, including a collective investment fund (or insurance company
general account) or an individual retirement account that is subject to title I
of ERISA, the Code or a governmental plan (as defined in section 3(32) of
ERISA), or a church plan (as defined in section 3(33) of ERISA) or other
employee benefit plan or retirement arrangement that is subject to any federal,
state or local law which is substantially similar to the foregoing provisions of
ERISA or the Code ("SIMILAR Law") (each, a "PLAN") nor any person acting
directly or indirectly on behalf of a Plan or using the assets of a Plan, (ii)
in the case of an ERISA Restricted Certificate (other than a Residual
Certificate, a Class C Certificate or a Class P Certificate) that has been the
subject of an underwriting that meets the requirements of V(h) of PTCE 95-60
(defined below), 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 (other than a Residual Certificate) presented for
registration in the name of a Plan or a trustee of any such plan or any other
person acting for or on behalf of any such plan or arrangement, or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Securities Administrator, which Opinion of Counsel shall not be an expense of
either the Securities Administrator or the Trust Fund, addressed to the
Securities Administrator
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to the effect that the purchase and holding of such ERISA Restricted Certificate
will not (a) result in the assets of the Trust Fund being deemed to be assets of
a Plan, (b) give rise to a fiduciary duty under ERISA on the part of the
transferee, the Sponsor, the Depositor, the Servicer, the Master Servicer or the
Securities Administrator or (c) be treated as, or result in, a prohibited
transaction under ERISA or Section 4975 of the Code or any violation of Similar
Law. For purposes of clauses (i) and (ii) above, with respect to an ERISA
Restricted Certificate that is a Book-Entry Certificate, in the event the
Benefit Plan Affidavit is not so furnished, the representations referred to in
the preceding sentence shall be deemed to have been made to the Securities
Administrator by the transferee's (including an initial acquirer's) acceptance
of the ERISA Restricted Certificates. Neither a Benefit Plan Affidavit nor an
Opinion of Counsel shall be required in connection with (i) the initial transfer
of any Certificate by the Depositor to an affiliate of the Depositor, (ii) the
transfer of any such Certificate to the issuer under the Indenture or the
indenture trustee under the Indenture or (iii) a transfer of any such
Certificate from the issuer under the Indenture or the indenture trustee under
the Indenture to the Depositor or an Affiliate of the Depositor (in which case
such transferee shall be deemed to have represented that it is not purchasing
with Plan Assets) and the Securities Administrator shall be entitled to
conclusively rely upon a representation (which, upon the request of the Trustee,
shall be a written representation) from the Depositor of the status of such
transferee as an affiliate of the Depositor. Notwithstanding anything else to
the contrary herein, any purported transfer of an ERISA Restricted Certificate
to or on behalf of a plan or any Person acting directly or indirectly on behalf
of a Plan or using assets of a Plan without compliance with the conditions
described above shall be void and of no effect.
To the extent permitted under applicable law (including ERISA), the
Securities Administrator 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 11.2(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 Securities Administrator in accordance with the foregoing
requirements.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 11.2 in connection with transfer shall be at the
expense of the parties to such transfers, and not an expense of the Securities
Administrator or the Trust Fund.
(e) 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
Securities Administrator 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;
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(iv) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(v) the Securities Administrator 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 Securities Administrator 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 (i) (A) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (B) the Securities
Administrator or the Depositor is unable to locate a qualified successor or (ii)
the Depositor at its option advises the Securities Administrator in writing that
it elects to terminate the book-entry system, or at the direction of Certificate
Owners representing at least 51% of the Certificate Principal Balance advises
the Securities Administrator and the Depository through the Depository
Participants in writing that the continuation of a book-entry system through the
Depository is no longer in the best interests of the Certificate Owners, the
Securities Administrator shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Securities Administrator of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Securities Administrator shall issue
the Definitive Certificates. Neither the Depositor nor the Securities
Administrator 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 Securities Administrator 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 Securities
Administrator , to the extent applicable with respect to such Definitive
Certificates and the Securities Administrator shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided that the
Securities Administrator 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.
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(f) 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 this Section 11.2(f). Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Securities Administrator with an effective Internal Revenue Service Form W-8ECI
or successor form at the time and in the manner required by the Code (any such
person who is not covered by clause (A) or (B) above is referred to herein as a
"NON-PERMITTED FOREIGN HOLDER").
No Person shall acquire an Ownership Interest in a Residual Certificate
unless such Ownership Interest is a pro rata undivided interest. Prior to and as
a condition of the registration of any transfer, sale or other disposition of a
Residual Certificate, the proposed transferee shall deliver to the Securities
Administrator an affidavit in substantially the form attached hereto as Exhibit
K and the proposed transferor shall deliver to the Securities Administrator a
certificate substantially in the form attached hereto as Exhibit H.
Notwithstanding the delivery of an affidavit substantially in the form of
Exhibit K by a proposed transferee, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in a Residual
Certificate to such proposed transferee shall be effected. In addition, the
Securities Administrator may (but shall have no obligation to) require, prior to
and as a condition of any such transfer, the delivery by the proposed transferee
of an Opinion of Counsel, addressed to the Securities Administrator, that such
proposed transferee or, if the proposed transferee is an agent or nominee, the
proposed beneficial owner, is a Permitted Transferee. Notwithstanding the
registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-permitted Foreign Holder, such registration shall be
deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
Neither the Depositor nor the Securities Administrator shall be under any
liability to any Person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof or
Non-permitted Foreign Holder or for the Securities Administrator making any
payments due on such Residual Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the provisions of the
Agreement, so long as the transfer was effected in accordance with this Section
11.2(f), unless the Securities Administrator shall have actual knowledge at the
time of such transfer or the time of such payment or other action that the
transferee is a Disqualified Organization, or an agent or nominee thereof, or
Non-permitted Foreign Holder. The Securities Administrator shall be entitled to
recover from any Holder of a Residual Certificate that was a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder at the
time it became a Holder or any subsequent time it became a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder, all
payments made on such Residual Certificate at and after either such times and
all costs and expenses, including but not limited to attorneys' fees, incurred
in connection therewith. Any payment (not including any such costs
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and expenses) so recovered by the Securities Administrator shall be paid and
delivered to the last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a Residual
Certificate in violation of the provisions of this Section 11.2(f), then upon
receipt of written notice to the Securities Administrator that the registration
of transfer of such Residual Certificate was not in fact permitted by this
Section 11.2(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Depositor and the Securities
Administrator shall be under no liability to any Person for any registration of
transfer of a Residual Certificate that is in fact not permitted by this Section
11.2(f), or for the Securities Administrator making any payment due on such
Certificate to the registered Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered upon receipt of the affidavit described in the preceding
paragraph of this Section 11.2(f).
(g) Each Holder of an ERISA Restricted Certificate or Residual Certificate,
or an interest therein, by such Holder's acceptance thereof, shall be deemed for
all purposes to have consented to the provisions of this section.
SECTION 11.3 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Securities
Administrator, or the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b) there
is delivered to the Depositor and the Securities Administrator such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator 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 11.3, the Securities Administrator 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 Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 11.3 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 11.4 Persons Deemed Owners.
The Securities Administrator and any agent of the Securities Administrator
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 Securities
Administrator nor any agent of the Securities Administrator shall be affected by
any notice to the contrary.
SECTION 11.5 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in writing
from the Securities Administrator, (b) state that such Certificateholders desire
to communicate with other
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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 Securities Administrator, then the Securities
Administrator 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
Securities Administrator, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Securities Administrator
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 11.6 Maintenance of Office or Agency.
The Securities Administrator shall maintain or cause to be maintained at
its expense an office or offices or agency or agencies where Certificates may be
surrendered for registration of transfer or exchange. The Securities
Administrator initially designates its office at _________________________ for
such purposes. The Securities Administrator shall give prompt written notice to
the Certificateholders of any change in such location of any such office or
agency.
SECTION 11.7 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Securities
Administrator, the Master Servicer or the Servicer or 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 person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of a Servicer
Event of Default or a Master Servicer Event of Default and of the continuance
thereof, and unless also the Holders of Certificates evidencing not less than
51% of the Voting Interests of Certificates of each Class affected thereby shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee indemnity reasonably satisfactory to it as it may require against the
cost, 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 and no direction inconsistent with such written request has been
given such Trustee
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during such 60-day period by such Certificateholders; 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 of any provision of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of such 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
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.7, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.8 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders or
Certificate Owners, if the Holder is a Depository, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where expressly
required herein, to the Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agents shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee and the Trustee, if made in the manner provided in this Section 11.8.
Each of the Trustee and the Trustee shall promptly notify the others of receipt
of any such instrument by it, and shall promptly forward a copy of such
instrument to the others.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments or deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Whenever such execution is
by an officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and none of the Trustee, the Trustee, or the Depositor
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
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ARTICLE XII
THE DEPOSITOR
SECTION 12.1 Liabilities 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 12.2 Merger or Consolidation of the Depositor.
(a) The Depositor shall 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 shall obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
(b) 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 12.3 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 negligence in the performance of
duties or by reason of reckless disregard of its 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 related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its 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
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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 on any
Distribution Date.
ARTICLE XIII
TERMINATION
SECTION 13.1 Termination upon Liquidation or Purchase of all Mortgage
Loans.
Subject to Section 13.3, the obligations and responsibilities of the
Depositor, the Seller, the Servicer, the Master Servicer, the Securities
Administrator and the Trustee created hereby with respect to the Trust Fund
shall terminate upon the earlier of:
(a) on any Distribution Date on which the sum of the aggregate Scheduled
Principal Balance of the Mortgage Loans on such Distribution Date is 10% or less
than the Cut-off Date Balance, the purchase by the Sponsor of all Mortgage Loans
and REO Properties remaining in the Trust Fund (any such event, a "CLEAN-UP
CALL") at the price equal to the sum of (i) 100% of the Scheduled Principal
Balance of each Mortgage Loan plus one month's accrued interest thereon at the
applicable Adjusted Net Mortgage Rate and any unpaid interest shortfall due on
the outstanding Certificates up to and including the first day of the month in
which the Termination Price is paid plus (ii) the fair market value of the REO
Property as determined in good faith by the Servicer, plus (iii) unreimbursed
Advances and any unpaid Servicing Fees allocable to such Mortgage Loans and REO
Properties, plus (iv) all amounts, if any, then due and owing to the Master
Servicer and the Servicer under this Agreement (the "TERMINATION PRICE"), and
(b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them 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 survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St. James's, living on the date hereof and (ii) the Final Scheduled Distribution
Date.
The Sponsor, in the order described below, may elect to terminate the Trust
Fund pursuant to clause (a) above. The Servicer shall first have the right to
exercise the purchase option described in the foregoing sentence upon written
notice to the Depositor, the Securities Administrator and the Trustee where the
sum of the aggregate Scheduled Principal Balance of the Mortgage Loans on such
Distribution Date is 5% or less than the Cut-off Date Balance. If the Servicer
does not exercise its right within 30 days of first becoming eligible to do so,
the Master Servicer shall then have the right to exercise such purchase option
for the next 30-day period upon written notice to the Depositor, the Securities
Administrator and the Trustee.
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SECTION 13.2 Final Distribution on the Certificates.
If on any Determination Date, the Servicer determines that there are no
outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Distribution Account, the Servicer shall notify the
Securities Administrator, which shall promptly send a final distribution notice
to each Certificateholder.
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
Securities Administrator by letter to Certificateholders mailed not earlier than
the 15th day of the month immediately preceding the month of such final
distribution and no later than the tenth day of the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates shall 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 Securities Administrator shall give such notice to each Rating
Agency at the time such notice is given to Certificateholders. The Sponsor
shall, no later than the Business Day prior to the Distribution Date on which
the final distribution is to be made, remit the Termination Price to the
Securities Administrator for deposit in the Distribution Account.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class, in each case on the final Distribution Date and in the order set forth in
Section 10.5, in proportion to their respective Percentage Interests, with
respect to Certificateholders of the same Class, an amount equal to the
Certificate Principal Balance thereof plus accrued interest thereon.
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 Securities Administrator 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 Securities
Administrator 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 Class C, P, R and RX Certificateholders, upon written request
to the Securities Administrator at the applicable Corporate Trust Office, shall
be entitled to all unclaimed funds and other assets of the Trust Fund which
remain subject hereto.
SECTION 13.3 Additional Termination Requirements.
(a) In the event the Sponsor exercises the Clean-up Call as provided in
Section 13.1, the Trust Fund shall be terminated in accordance with the
following additional requirements,
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unless the Securities Administrator has been supplied with an Opinion of
Counsel, at the expense of the Sponsor, to the effect that the failure to comply
with the requirements of this Section 13.3 shall not (i) result in the
imposition of taxes on "prohibited transactions" on any REMIC as defined in
section 860F of the Code, or (ii) cause any REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date set forth in
the notice given by the Servicer or the Master Servicer under Section 13.2,
at the expense of the Servicer or the Master Servicer, as applicable, the
Securities Administrator shall adopt a plan of complete liquidation within
the meaning of section 860F(a)(4) of the Code which meets the requirements
of a qualified liquidation;
(ii) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Securities Administrator shall sell all of the
assets of the Trust Fund to the Servicer or the Master Servicer for cash in
accordance with Section 13.1;
(iii) On the date specified for final payment of the Certificates, the
Securities Administrator shall cause to be made final distributions of
principal and interest on the Certificates in accordance with Section 13.2
and, after payment of, or provision for any outstanding expenses,
distribute or credit, or cause to be distributed or credited, to the
Holders of the Residual Certificates all cash on hand after such final
payment (other than cash retained to meet claims), and the Trust Fund (and
each REMIC) shall terminate at that time; and
(iv) In no event may the final payment on the Certificates or the
final distribution or credit to the Holders of the Residual Certificates be
made after the 89th day from the date on which the plan of complete
liquidation is adopted.
(b) The Securities Administrator as agent for any REMIC hereby agrees to
adopt and sign such a plan of complete liquidation upon the written request of
the Sponsor and to take such other action in connection therewith as may be
reasonably requested by the Securities Administrator .
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Securities Administrator to prepare and the Securities
Administrator to adopt and sign a plan of complete liquidation.
ARTICLE XIV
REMIC ADMINISTRATION
SECTION 14.1 REMIC Administration.
(a) The REMIC elections as set forth in the Preliminary Statement shall be
made on Forms 1066 or other appropriate federal tax or information return
prepared by the Securities Administrator and signed by the Trustee for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement. Following the Closing
Date, the Securities Administrator shall apply to the Internal Revenue Service
for an employer
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identification number for each REMIC created hereunder by means of a Form SS-4
or other acceptable method and shall file a Form 8811 with the Internal Revenue
Service. The Securities Administrator shall also apply for an employer
identification number by means of a Form SS-4 for the Issuing Entity separate
and apart from any Trust REMIC.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the
Final Scheduled Distribution Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax-related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer).
(d) The Securities Administrator shall prepare, and the Trustee shall sign
and file, each REMIC's federal and state tax and information returns as such
REMIC's direct representative. The expenses of preparing and filing such returns
shall be borne by the Securities Administrator.
(e) The Securities Administrator or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Securities Administrator shall provide,
upon receipt of additional reasonable compensation, (i) to the Treasury or other
governmental authority such information as is necessary for the application of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization pursuant to Treasury Regulation 1.860E-2(a)(5) and any
person designated in Section 860E(e)(3) of the Code and (ii) to the Securities
Administrator such information as is necessary for the Securities Administrator
to provide to the Certificateholders such information or reports as are required
by the Code or REMIC Provisions.
(f) To the extent within their control, the Securities Administrator and
the Holders of Certificates shall take any action or cause any REMIC to take any
action reasonably necessary to maintain the status of any REMIC as a REMIC under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status. None of the Securities Administrator or the Holder of any
Residual Certificate shall knowingly take any action, cause any REMIC to take
any action or fail to take (or fail to cause to be taken) any action that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of any REMIC as a REMIC or (ii) result in the imposition of
a tax upon any REMIC (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on
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prohibited contributions set forth on Section 860G(d) of the Code) (either such
event, an "ADVERSE REMIC EVENT") unless the Securities Administrator shall have
received an Opinion of Counsel (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such a tax. In addition, prior to taking any
action with respect to any REMIC or the assets therein, or causing any REMIC to
take any action, which is not expressly permitted under the terms of this
Agreement, any Holder of a Residual Certificate will consult with the Securities
Administrator or their respective designees, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
REMIC, and no such Person shall take any such action or cause any REMIC to take
any such action as to which the Securities Administrator has advised it in
writing that an Adverse REMIC Event could occur; provided, however, that if no
Adverse REMIC Event would occur but such action could result in the imposition
of additional taxes on the Residual Certificateholders, no such Person shall
take any such action, or cause any REMIC to take any such action without the
written consent of the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental authorities.
To the extent that such taxes are not paid by a Residual Certificateholder, the
Securities Administrator shall pay any remaining REMIC taxes out of current or
future amounts otherwise distributable to the Holder of the Residual Certificate
in any such REMIC or, if no such amounts are available, out of other amounts
held in the Distribution Account, and shall reduce amounts otherwise payable to
holders of regular interests in any such REMIC, as the case may be.
(h) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(j) The Securities Administrator shall not enter into any arrangement by
which any REMIC will receive a fee or other compensation for services.
(k) The largest percentage holder of the Class R and Class RX Certificates
shall be the "tax matters person" as defined in the REMIC Provisions (the "TAX
MATTERS PERSON") with respect to their respective REMICs. The Trustee shall act
as agent for the Holder of the Class R and Class RX Certificates in such roles,
unless and until another party is so designated by the Holder of the Class R or
the Class RX Certificate.
(l) The Securities Administrator shall treat (i) the rights of the Class A
and Class M Certificates to receive Net WAC Cap Carryover Amounts (other than
amounts paid under the Cap Agreement) as a right in interest rate cap contracts
written by the Class C Certificateholders in favor of the Holders of the Class A
and Class M Certificates and (ii) the rights of the Class C Certificates under
the Cap Agreement in accordance with the respective terms thereof and shall
assign such rights for federal tax return and information reporting a value of
zero. The Securities Administrator shall account for such as property held
separate and apart from the regular interests it holds in each of the REMICs
created hereunder. The provisions of this paragraph and
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Section 13.1(l) are intended to satisfy the requirements of Treasury Regulations
Section 1.860G-2(i) for the treatment of property rights coupled with regular
interests to be separately respected and shall be interpreted consistent with
such regulation. On each Distribution Date, to the extent the Class A and Class
M Certificates receive interest in excess of their Pass-Through Rate, such
interest will be treated as distributed to the Class C Interest and then to the
Class C Certificates, together with any amounts deposited in the Reserve Account
in respect of the Cap Agreement and then paid to the Class A and Class M
Certificates pursuant to the related Cap Agreement.
SECTION 14.2 Prohibited Transactions and Activities.
None of the Depositor, the Trustee or the Securities Administrator shall
(a) sell, dispose of, or substitute for any of the Mortgage Loans, except in a
disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of each REMIC pursuant to
Article XII, or (iv) a substitution or a repurchase of Mortgage Loans pursuant
to Article II or (b) acquire any assets for any REMIC, or (c) sell or dispose of
any investments in the Distribution Account for gain, or accept any
contributions to any REMIC after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale, disposition,
or substitution) that such disposition, acquisition, substitution, or acceptance
will not (i) affect adversely the status of any such REMIC as a REMIC or of the
interests therein other than the Residual Certificate as the regular interests
therein, (ii) affect the distribution of interest or principal on the
Certificates, (iii) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (iv) cause any such REMIC to be subject to any tax including a tax on
prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
SECTION 14.3 Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status.
In the event that a REMIC fails to qualify as a REMIC, loses its status as
a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to a
violation of this Pooling and Servicing Agreement or due to the negligent
performance by the Securities Administrator, the Trustee, the Master Servicer or
a Servicer of its duties and obligations set forth herein, the Trustee, the
Securities Administrator, the Master Servicer or a Servicer, as applicable,
shall indemnify the Certificateholders of the related Residual Certificate
against any and all losses, claims, damages, liabilities or expenses ("LOSSES")
resulting from such negligence; provided, however, that such party shall not be
liable for any such Losses attributable to the action or another party to this
Agreement or the Holder of the Residual Certificate, nor for any such Losses
resulting from misinformation provided by any of the foregoing parties on which
such party has relied. Notwithstanding the foregoing, however, in no event shall
the Trustee, the Securities Administrator, the Master Servicer or a Servicer
have any liability (a) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement and (b) for any special or
consequential damages to Certificateholders of the related Residual Certificate
(in addition to payment of principal and interest on the Certificates).
137
ARTICLE XV
AMENDMENT
SECTION 15.1 Without Consent of the Certificateholders.
(a) This Agreement may be amended from time to time by the Depositor, the
Seller, the Master Servicer, the Securities Administrator, the Servicer 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 or (iii) to add to the duties of the Depositor, the Seller, the
Securities Administrator, the Master Servicer, the Servicer or the Trustee, but
only if such duties would not constitute a significant change to the permitted
activities of the Issuing Entity; provided that any such amendment shall not, as
evidenced by an Opinion of Counsel, which Opinion of Counsel shall be expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, adversely affect in any material respect the
interests of any Certificateholder; and provided further, 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, withdrawal or qualification of the respective ratings then assigned
to the Certificate.
(b) The Trustee, the Depositor, the Securities Administrator, the Master
Servicer and the Servicer 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 any Trust REMIC as a REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on any Trust REMIC
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, maintain such
qualification, avoid or minimize the risk of the imposition of such a tax or
comply with any such requirements of the Code.
SECTION 15.2 With Consent.
This Agreement also may be amended from time to time by the Depositor, the
Seller, the Securities Administrator, the Master Servicer, the Servicer 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
138
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then Outstanding.
SECTION 15.3 Procedure and Notice.
(a) 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.
(b) It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(c) 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 shall not cause the
imposition of any tax on any Trust REMIC or the Certificateholders or cause any
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates are
Outstanding.
(d) 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 such
amendment is permitted by this Agreement and that all requirements for amending
this Agreement have been complied with.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.1 Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
SECTION 16.2 Entire Agreement.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
SECTION 16.3 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which together shall constitute
one and the same instrument.
139
SECTION 16.4 Provision of Information.
For so long as any of the Certificates of any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Securities Administrator and the Trustee agree to cooperate with
each other to provide to any Certificateholders and to any prospective purchaser
of Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee or
the Securities Administrator in providing such information shall be reimbursed
by the Depositor.
SECTION 16.5 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
RULES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, WHICH THE
PARTIES HERETO EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING
LAW HEREUNDER) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 16.6 Notices.
(a) The Securities Administrator shall promptly provide notice to each
Rating Agency of its resignation.
(b) The Securities Administrator shall make available to each Rating Agency
copies of each report to Certificateholders described in Section 5.5.
(c) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered by first class mail, by
courier or by facsimile transmission to the following addresses or such other
address as may hereafter be furnished to the Trustee:
(i) in the case of the Depositor:
Xxxxx Asset Securitization, Inc.
Attention:
Telephone: () -
Facsimile: () -
with a copy to:
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
140
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) in the case of the Trustee, the Corporate Trust Office or such
other address as the Trustee may hereafter furnish to the other
parties hereto;
(iii) in the case of if to the Seller:
Maia Mortgage Finance Statutory Trust
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: _____________
with a copy to:
Attention:
Telephone: () -
Facsimile: () -;
(iv) in the case of the Servicer:
________________________________
________________________________
________________________________
(v) in the case of the Master Servicer or the Securities
Administrator:
________________________________
________________________________
________________________________
(vi) in the case of the Rating Agencies, addressed to:
(A) Standard & Poor's, a division of the XxXxxx-Xxxx Companies
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
141
Attention: Structured Finance Ratings, Mortgage-Backed
Securities
and
(B) Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
telecopy no. (000) 000-0000
Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
SECTION 16.7 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 16.8 No Waivers.
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
SECTION 16.9 Headings Not to Affect Interpretation.
The headings contained in this Agreement are for convenience of reference
only, and they shall not be used in the interpretation hereof.
SECTION 16.10 No Petitions.
The Trustee, the Master Servicer, the Securities Administrator and the
Servicer, by entering into this Agreement, hereby covenant and agree that they
shall not at any time institute against the Depositor, or join in any
institution against the Depositor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to this Agreement or any of the documents entered into
by the Depositor in connection with the transactions contemplated by this
Agreement.
142
SECTION 16.11 Certificates Fully Paid and Nonassessable.
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
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
SECTION 16.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the Trust Fund created
by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell assets;
or
(iii) engage in any business or activities.
(b) Each of the Trustee, the Securities Administrator and the Depositor
agrees that it shall not file an involuntary bankruptcy petition against the
Trust Fund or initiate any other form of insolvency proceeding until after the
Certificates have been paid in full.
[SIGNATURE PAGE FOLLOWS]
143
IN WITNESS WHEREOF, the Depositor, the Seller, the Servicer, the Master
Servicer, the Securities Administrator and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
XXXXX ASSET SECURITIZATION, INC., as
Depositor
By:
------------------------------------
Name:
Title:
, as Trustee
----------------------------
By:
------------------------------------
Name:
Title:
MAIA MORTGAGE FINANCE STATUTORY TRUST,
as Seller
By:
------------------------------------
Name:
Title:
, as Servicer
---------------------------
By:
------------------------------------
Name:
Title:
144
, as Master
-----------------------------
Servicer and as Securities Administrator
By:
------------------------------------
Name:
Title:
[POOLING AND SERVICING AGREEMENT]
145
POOLING AND SERVICING AGREEMENT
EXHIBITS
TABLE OF CONTENTS
EXHIBITS
Exhibit A - Information Fields for ML Schedule
Exhibit B - Contents of each Mortgage File
Exhibit C - Form of Request for Release
Exhibit D - Form of Realized Gains and Losses
Exhibit E - Standard Layout for Monthly Defaulted Loan Report
Exhibit F - Credit Reporting Procedure
Exhibit 1122 - Servicing Criteria
Exhibit Sox - Sarbanes Oxley Certificate
Exhibit G-1 - Form of Class A Certificate
Exhibit G-2 - Form of Class M Certificate
Exhibit G-3- Form of Class C Certificate
Exhibit G-4 - Form of Class P Certificate
Exhibit G-5 - Form of Class R Certificate
Exhibit G-6 - Form of Class RX Certificate
Exhibit H - Form of Transferor Certificate
Exhibit I-1 - Form of Investment Letter (Non- Rule 144A)
Exhibit I-2 - Form of Investment Letter (Rule 144A)
Exhibit J - Form of Benefit Plan Affidavit
Exhibit K - Form of Affidavit Regarding Transfer of Residual Certificate
SCHEDULES
Schedule A - Mortgage Loan Schedule
Schedule B - Representations and Warranties in respect of the Mortgage Loans
Schedule C - LIBOR Calculation
(i)
EXHIBIT A
INFORMATION FIELDS FOR MORTGAGE LOAN SCHEDULE
With respect to each Mortgage Loan:
1. the Loan identification number;
2. the applicable Cut-off Date;
3. the zip code of the Mortgaged Property;
4. a code indicating whether the Mortgaged Property is a single family
residence, two-family residence, three to four family residence, planned unit
development, condominium, townhouse, row home or manufactured home;
5. the current Mortgage Rate;
6. the current Scheduled Monthly Payment;
7. the original term to maturity;
8. the scheduled maturity date;
9. the scheduled principal balance of the Mortgage Loan as of the Cut-off
Date;
10. the original Loan-to-Value Ratio;
11. the FICO score of the Mortgagor at the time of origination;
12. a code indicating the credit grade of each Mortgage Loan as assigned by
the Originator;
13. the date on which the first Scheduled Monthly Payment was or will be
due;
14. the date on which the next payment is due;
15. xxx xxxxxxxxxxxxx xxxxx (xxxx, xxxxxx, XXX);
16. loan purpose (i.e., purchase, rate/term refinance, cash-out refinance);
17. a code indicating whether the Mortgaged Property is owner occupied or
non-owner occupied;
18. a code indicating the product type (e.g., 2/28, 3/27, 15 year fixed,
etc.);
19. a code indicating whether the Mortgage Loan is subject to a Prepayment
Premium;
A-1
20. the term of any Prepayment Premium;
21. the type and amount of any Prepayment Premium;
22. with respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
23. with respect to each Adjustable Rate Mortgage Loan, the next Adjustment
Date;
24. with respect to each Adjustable Rate Mortgage Loan, the lifetime
maximum Mortgage Interest Rate;
25. with respect to each Adjustable Rate Mortgage Loan, the lifetime
minimum Mortgage Interest Rate;
26. with respect to each Adjustable Rate Mortgage Loan, the periodic
Mortgage Interest Rate cap;
27. with respect to each Adjustable Rate Mortgage Loan, the Index;
28. a code indicating whether the Mortgage Loan is an adjustable rate or
fixed rate mortgage loan;
29. a code indicating whether the Mortgage Loan is a balloon loan; and
30. a code indicating whether the Mortgage Loan is a "high cost" (or
similarly classified) loan under applicable federal, state and local laws.
With respect to the Mortgage Loans in the aggregate in the related Mortgage
Loan Package, the respective Mortgage Loan Schedule shall set forth the
following information, as of the Cut-off Date:
1. the number of Mortgage Loans;
2. the current aggregate outstanding scheduled principal balance of the
Mortgage Loans;
3. the current weighted average Mortgage Interest Rate of the Mortgage
Loans; and
4. the weighted average months to maturity of the Mortgage Loans.
A-2
EXHIBIT B
CONTENTS OF MORTGAGE LOAN FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items delivered to the Trustee (or its designee), portions of
which may be held by the Servicer in the Servicing File:
(i) The original Mortgage Note (with all riders) endorsed either in
blank or in the following form: "Pay to the order of ________________, as
trustee (the "TRUSTEE") for the Luminent Mortgage Trust 200_-_
Mortgage-Backed Certificates, Series 200_-_, without recourse" and signed
in the name of the Seller by an Authorized Officer (provided, in the event
that the Mortgage Loan was acquired by the Seller in a merger, the
signature must be in the following form: "[Seller], successor by merger to
[name of predecessor]"; and in the event that the Mortgage Loan was
acquired or originated by the Seller while doing business under another
name, the signature must be in the following form: "[Seller], formerly
known as [previous name]"). The Mortgage Note must contain all necessary
intervening endorsements showing a complete chain of endorsement from the
Originator (each such endorsement being sufficient to transfer all right,
title and interest of the party so endorsing, as the holder of the Mortgage
Note or assignee thereof, in and to that Mortgage Note); or
With respect to no more than 1% of the Cut-off Date Balance, a
certified copy of the Mortgage Note (endorsed as provided above) together
with a lost note affidavit, providing indemnification to the holder thereof
for any losses incurred due to the fact that the original Mortgage Note is
missing.
(ii) The original of any guarantee executed in connection with the
Mortgage Note (if any).
(iii) The original Mortgage (with all riders), with evidence of
recording thereon, except as follows: If in connection with any Mortgage
Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the
Trustee, a photocopy of such Mortgage, together with, in the case of a
delay caused by the public recording office, an Officer's Certificate of
the Seller stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Trustee upon receipt thereof by
the Seller.
(iv) The originals or certified true copies of any document sent for
recordation of all assumption, modification, consolidation or extension
agreements, with evidence of recording
B-1
thereon, or, if the original of any such agreement with evidence of
recording thereon has not been returned by the public recording office
where such agreement has been delivered for recordation or such agreement
has been lost or such public recording office retains the original recorded
agreement, a photocopy of such agreement, certified by the Seller or its
agent to be a true and correct copy of the agreement delivered to the
appropriate public recording office for recordation. The original recorded
agreement or, in the case of a agreement where a public recording office
retains the original recorded agreement or in the case where an agreement
is lost after recordation in a public recording office, a copy of such
agreement certified by such public recording office to be a true and
complete copy of the original recorded agreement, will be promptly
delivered to the Trustee upon receipt thereof by the Seller.
(v) The original Assignment of Mortgage in blank for each Mortgage
Loan, in form and substance acceptable for recording. If the Mortgage Loan
was acquired by the Seller in a merger, the Assignment of Mortgage must be
made by "[Seller], successor by merger to [name of predecessor]." If the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment of Mortgage must be made by "[Seller],
formerly know as [previous name]." Subject to the foregoing and where
permitted under the applicable laws of the jurisdiction wherein the
Mortgaged property is located, such Assignments of Mortgage may be made by
blanket assignments for Mortgage Loans secured by the Mortgaged Properties
located in the same county. If the related Mortgage has been recorded in
the name of MERS or its designee, no Assignment of Mortgage will be
required to be prepared or delivered and instead, the Seller shall take all
actions as are necessary to cause the Trustee to be shown as the owner of
the related Mortgage Loan on the records of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by
MERS.
(vi) For any Mortgage Loan not recorded in the name of MERS, originals
or certified true copies of documents sent for recordation of all
Intervening Assignments of the Mortgage with evidence of recording thereon,
or if any such Intervening Assignment has not been returned from the
applicable recording office or has been lost or if such public recording
office retains the original recorded assignments of mortgage, the Seller
shall deliver or cause to be delivered to the Trustee, a photocopy of such
Intervening Assignment, together with (i) in the case of a delay caused by
the public recording office, an Officer's Certificate of the Seller stating
that such Intervening Assignment of Mortgage has been dispatched to the
appropriate public recording office for recordation and that such original
recorded Intervening Assignment of Mortgage or a copy of such Intervening
Assignment of Mortgage certified by the appropriate public recording office
or by the title insurance company that issued the title policy to be a true
and complete copy of the original recorded Intervening Assignment of
Mortgage will be promptly delivered to the Trustee upon receipt thereof by
the Seller; or (ii) in the case of an Intervening Assignment where a public
recording office retains the original recorded Intervening Assignment of
Mortgage or in the case where an Intervening Assignment of Mortgage is lost
after recordation in a public recording office, a copy of such Intervening
Assignment of Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Intervening Assignment of
Mortgage.
B-2
(vii) The original private mortgage insurance policy or certificate of
insurance, where required pursuant to the Agreement.
(viii) The original mortgagee policy of title insurance in the form
required by the Agreement or, if the original lender's title insurance
policy has not been issued, the preliminary report or irrevocable binder or
commitment to issue the same.
(ix) Any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage.
(x) For each Mortgage Loan which is secured by a residential long-term
lease, if any, a copy of the lease with evidence of recording indicated
thereon, or, if the lease is in the process of being recorded, a photocopy
of the lease, certified by an officer of the respective prior owner of such
Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to be a true
and correct copy of the lease transmitted for recordation.
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items to the extent required in the Underwriting Guidelines:
(i) The original hazard insurance policy and, if required by law,
flood insurance policy.
(ii) Fully executed residential loan application.
(iii) Fully executed Mortgage Loan closing statement (i.e., a Form
HUD-1) and any other truth-in-lending or real estate settlement procedure
forms required by law.
(iv) Verification of employment and income (if required pursuant to
the Underwriting Guidelines).
(v) Verification of acceptable evidence of source and amount of down
payment.
(vi) Credit report on the Mortgagor.
(vii) Residential appraisal report.
(viii) Photograph of the Mortgaged Property.
(ix) Survey of the Mortgaged Property, if required by the title
company or applicable law.
(x) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy
(i.e., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.).
B-3
(xi) All fully executed required disclosure statements required by
state and federal law.
(xii) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(xiii) Sales contract, if applicable.
(xiv) Evidence of payment of taxes and insurance premiums, insurance
claim files, correspondence, current and historical computerized data
files, and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage file and which are
required to document the Mortgage Loan or to service the Mortgage Loan.
(xv) Amortization schedule, if available.
(xvi) Payment history for any Mortgage Loan that has been closed for
more than 90 days.
(xvii) Fully executed power of attorney, if applicable.
In the event of a delay by the public recording office in returning any recorded
document, the Seller shall deliver to the Custodian, within 180 days of the
Closing Date, an Officer's Certificate which shall (i) identify the recorded
document, (ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay caused by the public recording office, (iii)
state the amount of time generally required by the applicable recording office
to record and return a document submitted for recordation, and (iv) specify the
date the applicable recorded document will be delivered to the Custodian. The
Seller shall be required to deliver to the Custodian the applicable recorded
document by the date specified in (iv) above. An extension of the date specified
in (iv) above may be requested form the Custodian, which consent shall not be
unreasonably withheld.
B-4
EXHIBIT C
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
[Name of Custodian]
[Address of Custodian]
In connection with the administration of the mortgages held by you as Custodian
under that certain Custodial Agreement, dated as of ________________ (the
"CUSTODIAL AGREEMENT"), among ________________, as custodian (the "CUSTODIAN"),
Xxxxx Asset Securitization, Inc., as Depositor (the "DEPOSITOR"), and
________________, as the trustee (the "TRUSTEE"), the [Master Servicer]
[Servicer] hereby requests a release of the Mortgage File held by you as
Custodian with respect to the following described Mortgage Loan for the reason
indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. The [Master Servicer] [Servicer] hereby certifies
that all amounts received in connection with the loan have been credited to the
[Custodial Account] [Payment Account] pursuant to the Pooling and Servicing
Agreement.
2. Mortgage Loan foreclosed. The [Master Servicer] [Servicer] hereby certifies
that the above reference Mortgage Loan is or will be subject to a foreclosure
proceeding in accordance with the Pooling and Servicing Agreement.
3. Mortgage Loan substituted. The [Master Servicer] [Servicer] hereby certifies
that a Qualified Substitute Mortgage Loan has been assigned and delivered to you
along with the related Mortgage File pursuant to the Pooling and Servicing
Agreement.
4. Mortgage Loan repurchased. The [Master Servicer] [Servicer] hereby certifies
that the Repurchase Amount has been credited to the Payment Account pursuant to
the Pooling and Servicing Agreement.
5. Other. [ - ]
The undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Pooling and Servicing
Agreement and will be returned to you within ten (10) days of our receipt of
such Mortgage File, except if the Mortgage Loan has been paid in full,
repurchased or substituted for a Qualified Substitute Mortgage Loan (in which
case the Mortgage File will be retained by us permanently) and except if the
Mortgage Loan is being foreclosed (in which case the Mortgage File will be
returned when no longer required by us for such purpose).
C-1
Capitalized terms used herein shall have the meanings ascribed to them in the
Custodial Agreement.
[-],
as [Master Servicer] [Servicer]
By:
------------------------------------
Name:
Title:
C-2
EXHIBIT D
FORM OF REALIZED LOSSES AND GAINS
The numbers on the form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation breaking out
the net interest and servicing fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee that would
have been earned if all delinquent payments had been made as agreed. For
documentation, an Amortization Schedule from date of default through liquidation
breaking out the net interest and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage Loan as calculated on a monthly basis. For documentation, an
Amortization Schedule from date of default through liquidation breaking out the
net interest and servicing fees advanced is required.
4-12. Complete as applicable. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, bills, canceled checks, etc., to
document the expense. Entries not properly documented will not be reimbursed to
the Servicer.
13. THE TOTAL OF LINES 1 THOUGH 12
Credits:
14-21. Complete as applicable. All line entries must be supported by copies of
the appropriate claims forms, EOBs, HUD-1 and/or other proceeds verification,
statements, payment checks, etc. to document the credit. If the Mortgage Loan is
subject to a Bankruptcy Deficiency, the difference between the Unpaid Principal
Balance of the Note prior to the Bankruptcy Deficiency and the Unpaid Principal
Balance as reduced by the Bankruptcy Deficiency should be input on line 20.
22. The total of lines 14 through 21.
Please note: For HUD/VA loans, use line (15) for Part A/Initial proceeds and
line (16) for Part B/Supplemental proceeds
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount represents
a realized gain, show the amount in parenthesis ( ).
--------------------------------------------------------------------------------
(C) Copyright Xxxxx Fargo Bank, Corporate Trust Services
D-1
CALCULATION OF REALIZED LOSS/GAIN
Prepared by: ___________________ Date: _______________
Phone: ________________________ Email Address: ____________________
Servicer Loan No. ______ Servicer Name ___________ Servicer Address ________
Loan No._____________________________
Borrower's Name:________________________________________________________
Property Address:_______________________________________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $_________________ (1)
(2) Interest accrued at Net Rate __________________ (2)
(3) Accrued Servicing Fees __________________ (3)
(4) Attorney's Fees __________________ (4)
(5) Taxes __________________ (5)
(6) Property Maintenance __________________ (6)
(7) MI/Hazard Insurance Premiums __________________ (7)
(8) Utility Expenses __________________ (8)
(9) Appraisal/BPO __________________ (9)
(10) Property Inspections __________________ (10)
(11) FC Costs/Other Legal Expenses __________________ (11)
(12) Other (itemize) $_________________ (12)
Cash for Keys__________________________ __________________
HOA/Condo Fees_______________________ __________________
_____________________________________ __________________
_____________________________________ __________________
TOTAL EXPENSES $_________________ (13)
CREDITS:
(14) Escrow Balance $_________________ (14)
(15) HIP Refund __________________ (15)
(16) Rental Receipts __________________ (16)
(17) Hazard Loss Proceeds __________________ (17)
(18) Primary Mortgage Insurance Proceeds __________________ (18)
(19) Pool Insurance Proceeds __________________ (19)
(20) Proceeds from Sale of Acquired Property __________________ (20)
(21) Other (itemize) __________________ (21)
_____________________________________ __________________
_____________________________________ __________________
TOTAL CREDITS $_________________ (22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $_________________ (23)
PLEASE BE ADVISED THAT FAILURE TO COMPLY WITH ANY OR ALL OF THE GUIDELINES
ENTAILED HEREIN MAY RESULT IN ISSUANCE OF LATE REPORTING FEES.
(C) Copyright Xxxxx Fargo Bank, Corporate Trust Services
Contact us with Reporting Questions: XXXXxxxxxxXXX@XxxxxXxxxx.xxx
D-2
EXHIBIT E
STANDARD LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
EXHIBIT: STANDARD FILE LAYOUT - DELINQUENCY REPORTING
FORMAT
COLUMN/HEADER NAME DESCRIPTION DECIMAL COMMENT
--------------------------- ------------------------------------------------------------ ------- ------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may
be different than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an external servicer
to identify a group of loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the MM/DD/YYYY
servicer at the end of processing cycle, as reported by
Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the bankruptcy
filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been approved MM/DD/YYYY
by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
Dismissal, Discharged and/or a Motion For Relief Was
Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To End/Close MM/DD/YYYY
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with MM/DD/YYYY
instructions to begin foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a Foreclosure MM/DD/YYYY
Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,)
or dollar
signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the property MM/DD/YYYY
from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,)
or dollar
signs ($)
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,)
or dollar
signs ($)
E-1
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on brokers 2
price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop paying on
a loan. Code indicates the reason why the loan is in default
for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage MM/DD/YYYY
Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool MM/DD/YYYY
Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,)
or dollar
2 signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
E-2
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
E-3
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
E-4
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
STATUS CODE STATUS DESCRIPTION
----------- ------------------------------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
E-5
EXHIBIT F
CREDIT REPORTING PROCEDURE
"Full-file" reporting requires that the Servicer submit a monthly report to each
of the credit repositories to describe the exact status for each Mortgage
Loan.(1) The status reported generally should be the one in effect as of the
last business day of each month.
The Servicer may, however, use a slightly later cut-off date -- for example, at
the and of the first week of a month -- to assure that payment corrections,
returned checks, and other adjustments related to the previous month's activity
can be appropriately reflected in their report for that month. Statuses that
must be reported for any given mortgage include the following: current,
delinquent (30-, 60-, 90-days, etc.), foreclosed, and charged-off. (The credit
repositories will provide the applicable codes for reporting these statuses to
them.) A listing of each of the major repositories to which "full-file" status
reports must be sent is attached.
The Servicer is responsible for the complete and accurate reporting of mortgage
status information to the repositories and for resolving any disputes that arise
about the information they report. The Servicer must respond promptly to any
inquiries from mortgagors regarding specific mortgage status information about
them that was reported to the credit repositories.
----------
(1) Based upon Xxxxxx Xxx Guide Announcement 95-19.
F-1
Major Credit Repositories
A "full-file" status report for each Mortgage Loan serviced for Xxxxxx Mae must
be sent to the following repositories each month:
Company Telephone Number
----------------------- ------------------------------------------------------
Equifax Members that have an account number may call their
local sales representative for all inquiries; lenders
that need to set up an account should call (800)
685-5000 and select the customer assistance option.
Experian Call (000) 000-0000 for all inquiries, current members
should select option 3; lenders that need to set up an
account should select Option 4.
Trans Union Corporation Call (000) 000-0000 to get the name of the local
555 West Xxxxx bureau to contact about setting up an account or
Xxxxxxx, Xxxxxxxx 00000 obtaining other information.
F-2
EXHIBIT 1122
ASSESSMENTS OF COMPLIANCE AND ATTESTATION REPORTS SERVICING CRITERIA*
Paying Master Securities
Reg. AB Item 1122(d) Servicing Criteria Depositor Seller Servicer Trustee Custodian Agent Servicer Administrator
--------------------------------------- --------- ------ -------- ------- --------- ------ -------- --------------
(1) General Servicing Considerations
(i) monitoring performance or X [X] [X]
other triggers and events
of default
(ii) monitoring performance of X
vendors of activities
outsourced
(iii) maintenance of back-up [X] [X] [X]
servicer for pool assets
(iv) fidelity bond and E&O X [X] [X] [X]
policies in effect
(2) Cash Collection and Administration
(i) timing of deposits to X [X] [X] [X]
custodial account
(ii) wire transfers to investors X [X] [X]
by authorized personnel
----------
* The descriptions of the Item 1122(d) servicing criteria use key words and
phrases and are not verbatim recitations of the servicing criteria. Refer
to Regulation AB, Item 1122 for a full description of servicing criteria.
1122-1
Paying Master Securities
Reg. AB Item 1122(d) Servicing Criteria Depositor Seller Servicer Trustee Custodian Agent Servicer Administrator
--------------------------------------- --------- ------ -------- ------- --------- ------ -------- --------------
(iii) advances or guarantees made, X [X]
reviewed and approved as
required
(iv) accounts maintained as X [X] [X] [X]
required
(v) accounts at federally X [X] [X] [X]
insured depository
institutions
(vi) unissued checks safeguarded [X] [X] [X]
(vii) monthly reconciliations of X [X] [X] [X]
accounts
(3) Investor Remittances and Reporting
(i) investor reports [X] [X] [X]
(ii) remittances [X] [X] [X]
(iii) proper posting of [X] [X] [X]
distributions
(iv) reconciliation of [X] [X] [X]
remittances and payment
statements
(4) Pool Asset Administration
(i) maintenance of pool collateral [X] [X]
1122-2
Paying Master Securities
Reg. AB Item 1122(d) Servicing Criteria Depositor Seller Servicer Trustee Custodian Agent Servicer Administrator
--------------------------------------- --------- ------ -------- ------- --------- ------ -------- --------------
(ii) safeguarding of pool X X X
assets/documents
(iii) additions, removals and X X [X] [X] [X] [X]
substitutions of pool
assets
(iv) posting and allocation of X
pool asset payments to pool
assets
(v) reconciliation of servicer
records X
(vi) modifications or other X [X]
changes to terms of pool
assets
(vii) loss mitigation and X
recovery actions
(viii) records regarding X
collection efforts
(ix) adjustments to variable X
interest rates on pool
assets
(x) matters relating to funds X
held in trust for obligors
1122-3
Paying Master Securities
Reg. AB Item 1122(d) Servicing Criteria Depositor Seller Servicer Trustee Custodian Agent Servicer Administrator
--------------------------------------- --------- ------ -------- ------- --------- ------ -------- --------------
(xi) payments made on behalf of X
obligors (such as for taxes
or insurance)
(xii) late payment penalties with X
respect to payments made on
behalf of obligors
(xiii) records with respect to X
payments made on behalf of
obligors
(xiv) recognition and recording X
of delinquencies,
charge-offs and
uncollectible accounts
(xv) maintenance of external [X] [X] [X] [X]
credit enhancement or
other support
1122-4
EXHIBIT SOX
CERTIFICATE
This Certificate is given pursuant to that certain pooling and servicing
agreement dated as of ______, with respect to Luminent Mortgage Trust 200__-_,
Mortgage-Backed Certificates, Series 200__-_ (the "Pooling and Servicing
Agreement").
I am the [title/office] of [Responsible Party] (the ["Company" or
"Servicer"]) and, in such capacity, the officer in charge of the
[Company's/Servicer's] performance of the Servicing Criteria identified as the
[Company's/Servicer's] responsibility on Exhibit 1122 to the Pooling and
Servicing Agreement (the "Agreement"). I hereby certify as follows (capitalized
terms used and not otherwise defined herein have the meanings assigned in the
Agreement):
1. I have reviewed the (a) Compliance Statement of the [Company/Servicer],
(b) the Assessment of Compliance of the [Company/Servicer], (c) the related
Attestation Report, and (d) all other reports, data or information provided by
the [Company/Servicer] to the Securities Administrator during the preceding
calendar year relating to the performance of the [Company/Servicer] under the
terms of the Agreement (collectively, the "[Company/ Servicer] Information");
2. Based on my knowledge, the [Company/Servicer] Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
period covered by the [Company/Servicer] Information;
3. Based on my knowledge, all of the [Company/Servicer] Information
required to be provided by the [Company/Servicer] under the Agreement has been
provided to the Securities Administrator;
4. I am responsible for reviewing the activities performed by the
[Company/Servicer] under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement, and except as
disclosed in the Compliance Statement, the Assessment of Compliance or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
5. The Compliance Statement, the Assessment of Compliance and the
Attestation Report required to be provided by the [Company/Servicer] pursuant to
the Agreement have been provided to the Securities Administrator. Any material
instances of noncompliance described in such reports have been disclosed to the
Securities Administrator. Any material instances of noncompliance with the
Servicing Criteria have been disclosed in such reports.
Date:
---------------------------
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SOX-1
EXHIBIT G - 1
FORM OF CLASS A CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE SECURITIES
ADMINISTRATOR 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 11.2 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN 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") AND
CERTAIN OTHER PROPERTY.
G-1-1
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS A-[ - ]
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
PASS-THROUGH RATE: [ - ] CERTIFICATE PRINCIPAL BALANCE OF THE
CLASS A-[ - ] CERTIFICATES AS OF THE
DATE OF POOLING AND CLOSING DATE: $[ - ]
SERVICING AGREEMENT:
AS OF ___________________ MORTGAGE LOAN CUT-OFF
DATE BALANCE: $[ - ]
CLOSING DATE: ___________________
SERVICER: ___________________
FIRST DISTRIBUTION DATE:
TRUSTEE: ___________________
_____________________________________
CUSIP NO.: [ - ]
PERCENTAGE INTEREST: [ - ]%
NO. 1
G-1-2
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS A-[ - ]
evidencing a beneficial ownership interest in a Trust that consists primarily of
a pool of Mortgage Loans (the "Mortgage Loans") formed and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
UNDERWRITERS, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER,
THE DEPOSITOR, THE SELLER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. UNLESS
EXPRESSLY PROVIDED IN THE PROSPECTUS SUPPLEMENT, THIS CERTIFICATE IS NOT INSURED
OR GUARANTEED BY ANY PERSON.
THIS CERTIFIES THAT:
Cede & Co.
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class A-[ - ] Certificates issued by Luminent Mortgage Trust 200_-_ (the
"Trust"), which was created pursuant to a Pooling and Servicing Agreement, dated
as of _______, ___ (the "Pooling and Servicing Agreement") by and among Xxxxx
Asset Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage
Finance Statutory Trust, as seller (the "Seller"), _________, as trustee (the
"Trustee"), __________, as servicer (the "Servicer"), and ______________, as
master servicer (the "Master Servicer") and securities administrator (the
"Securities Administrator"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned to them in the Pooling
and Servicing Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Holder of this Certificate, by virtue
of the acceptance hereof, assents and by which such Holder is bound.
Distributions of principal of and interest on this Certificate (including
the final distribution on this Certificate) will be made out of the Available
Funds, to the extent and subject to the limitations set forth in the Pooling and
Servicing Agreement, on the __ day of each month commencing in ________ or, if
such __ day is not a Business Day, the Business Day immediately following (a
"Distribution Date"), to the Person in whose name this Certificate is registered
at the close of business on the Business Day preceding such Distribution Date
(the related "Record Date"). All sums distributed on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Pass-Through Rate on the Class A-[ - ] Certificates for any
Distribution Date will be equal to [ - ]. Principal and interest will be
distributed on this Certificate on any Distribution Date in the manner specified
in the Pooling and Servicing Agreement. Distributions allocated to
G-1-3
the Class A-[ - ] Certificates will be allocated among the Certificates of such
Class pro rata based upon their respective Percentage Interests, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 200_-_ Mortgage-Backed Certificates,
Series 200_-_ (herein called the "Certificates") and representing a Percentage
Interest specified on the face hereof in the Class A-[ ] Certificates. The
Certificates are issued in six classes as set forth in the Pooling and Servicing
Agreement. The Certificates evidence in the aggregate 100% of the beneficial
ownership of the Trust.
Certain Realized Losses on and certain other shortfalls in respect of the
Mortgage Loans will be allocated on any Distribution Date to Holders of Class M
Certificates by allocation to the related Certificates of an Applied Loss Amount
in the manner set forth in the Pooling and Servicing Agreement. Applied Loss
Amounts will be allocated on each Distribution Date to the Class M Certificates
in reverse order of their respective numerical Class designations until the
respective Certificate Principal Balance of each such Class is reduced to zero.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Distribution Account, the Custodial Account and
related accounts shall be made from time to time for purposes other than
distributions to Holders, such purposes including reimbursement of fees and
expenses, including Advances made by the Servicer, and certain expenses and
indemnities amounts incurred with respect to the Mortgage Loans and
administration of the Trust.
So long as this Certificate is registered in the name of a Depository or
its nominee, the Securities Administrator shall make distributions on each
Distribution Date to the Holder of such Certificate as of the related Record
Date either (i) by wire transfer of immediately available funds to the account
of such Holder at a bank or other entity having appropriate facilities therefor,
if such Holder has so notified the Securities Administrator at least five
Business Days prior to the related Record Date or (ii) by check mailed by first
class mail to such Holder at the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Securities Administrator
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Securities Administrator
specified in the final distribution notice to Certificateholders.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Trustee, the Seller, the Master Servicer, the
Securities Administrator and the Servicer and the rights of the Holders under
the Pooling and Servicing Agreement at any time by the Depositor, the Trustee,
the Seller, the Master Servicer, the Securities Administrator and the Servicer,
with the consent of the Holders of a Majority of Interest of each Class of
Certificates (and in certain circumstances a higher percentage of such Voting
Interests as specified in the Pooling and Servicing Agreement). Any such consent
by the Holder of this Certificate shall be conclusive
G-1-4
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer or exchange hereof or in lieu
herefor, regardless of whether notation of such consent is made upon this
Certificate. The Pooling and Servicing 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 Pooling and Servicing Agreement and subject to any
limitations on transfer of this Certificate by the Depository or its nominee and
certain limitations set forth in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the applicable
Corporate Trust Office of the Securities Administrator or such other offices or
agencies appointed by the Securities Administrator for that purpose or such
other locations, if any, provided in the Pooling and Servicing Agreement, duly
endorsed by, or accompanied by an assignment in the form attached hereto or
other written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates of this Class will be registered as one or more certificates held
by the Depository or its nominee and beneficial interests will be held by
Beneficial Owners through the book-entry facilities of the Depository or its
nominee in minimum denominations of $100,000 and integral multiples of $1 in
excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, at the option of the Certificateholder,
Certificates may be exchanged for other Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
upon the surrender of the Certificates to be exchanged at the office or agency
of the Securities Administrator. No service charge will be made for any such
registration of transfer or exchange, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Depositor, the Servicer, the Trustee, the Seller, the Master Servicer
and the Securities Administrator and any agent of the Depositor, the Servicer,
the Master Servicer, the Securities Administrator 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 Servicer, the Trustee, the Master
Servicer, the Securities Administrator, nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Pooling and Servicing Agreement and the
Trust created thereby shall terminate upon the earlier of (a) the purchase by
the Servicer of all Mortgage Loans (and REO Properties) remaining in the Trust
Fund pursuant to the terms and conditions of the Pooling and Servicing Agreement
and (b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts to be distributed to
them. In no event shall the Trust continue beyond the earlier of (i) the
expiration of 21 years from the death of the
G-1-5
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of the St. James's, living on the date hereof and
(ii) the Latest Possible Maturity Date. Pursuant to the terms of the Pooling and
Servicing Agreement, the Sponsor may make an Clean-up Call or cause an Clean-up
Call to be made pursuant to Section 13.1 of the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust not in its individual capacity but solely as Securities Administrator
under the Pooling and Servicing Agreement.
G-1-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ____________________________ ________________, NOT IN ITS INDIVIDUAL
CAPACITY, BUT SOLELY AS SECURITIES
ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-[ - ] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
________________, AS SECURITIES
ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
G-1-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties -------------------
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as under Uniform Gifts
tenants in common to Minors Act
___________________
(State)
Additional abbreviations may also be used though not in the above list.
G-1-8
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint ______
(Attorney) to transfer the said Certificate in the Certificate Register of the
within-named Trust, with full power of substitution in the premises.
Dated:
------------------------------ ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
------------------------------------
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial
bank or trust company or by a member
firm of the New York Stock Exchange
or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
G-1-9
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 reports and
statements should be mailed to ____________________________. This information is
provided by ______________________________________________, the assignee named
above, or __________________________________, as its agent.
G-1-10
EXHIBIT G-2
FORM OF CLASS M CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE SECURITIES
ADMINISTRATOR 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.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 11.2 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN 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") AND
CERTAIN OTHER PROPERTY.
IF THE RATING OF THIS CERTIFICATE IS BELOW "BBB-" OR ITS EQUIVALENT WHEN IT IS
TRANSFERRED, TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE
DELIVERS TO THE TRUSTEE EITHER (I) A REPRESENTATION LETTER STATING THAT (A) IT
IS NOT, AND IS NOT ACTING ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
INCLUDING A COLLECTIVE INVESTMENT FUND (OR INSURANCE COMPANY GENERAL ACCOUNT) OR
INDIVIDUAL RETIREMENT ACCOUNT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE CODE OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) OR OTHER EMPLOYEE BENEFIT PLAN OR RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN") OR USING THE
ASSETS OF A PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY,
THAT THE
G-2-1
SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12,
1995)) AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER
SECTIONS I AND III OF PTCE 95-60 OR (II) AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE SECURITIES ADMINISTRATOR TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF SUCH OFFERED CERTIFICATE BY OR ON BEHALF
OF SUCH PLAN (A) WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO
BE ASSETS OF A PLAN, (B) WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW AND (C) WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR, THE SERVICER,
THE MASTER SERVICER OR THE SPONSOR TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE SPONSOR OR THE SERVICER. EACH PERSON
WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN
THE PRECEDING SENTENCE, UNLESS SUCH PERSON HAS PROVIDED SUCH REPRESENTATION
LETTER OR OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE
TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY ATTEMPTED OR
PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND
VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
THE CLASS [M- ] CERTIFICATES ARE SUBORDINATED TO THE CLASS A, [AND] CLASS [M- ]
CERTIFICATES ISSUED BY THE TRUST DESCRIBED HEREIN TO THE EXTENT DESCRIBED HEREIN
AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS M-[1, 2]
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
PASS-THROUGH RATE: [ - ]
CERTIFICATE PRINCIPAL BALANCE OF THE
CLASS [M- ] CERTIFICATES AS OF THE
CLOSING DATE: $[ - ]
DATE OF POOLING AND
G-2-2
SERVICING AGREEMENT:
AS OF ____________
CLOSING DATE: ____________
FIRST DISTRIBUTION DATE:
_________________
PERCENTAGE INTEREST: [ - ]%
NO. 1
MORTGAGE LOAN CUT-OFF
DATE BALANCE: $[ - ]
SERVICER: ____________
TRUSTEE: ____________
CUSIP NO.: [ - ]
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS M-[1, 2]
evidencing a beneficial ownership interest in a Trust, which Trust consists
primarily of a pool of Mortgage Loans (the "Mortgage Loans") formed and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
UNDERWRITERS, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER,
THE DEPOSITOR, THE SELLER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. UNLESS
EXPRESSLY PROVIDED IN THE PROSPECTUS SUPPLEMENT, THIS CERTIFICATE IS NOT INSURED
OR GUARANTEED BY ANY PERSON.
THIS CERTIFIES THAT:
Cede & Co.
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class [ - ] Certificates issued by Luminent Mortgage Trust 200_-_(the
"Trust"), which was created pursuant to a Pooling and Servicing Agreement, dated
as of ____________ (the "Pooling and Servicing Agreement") by and among Xxxxx
Asset Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage
Finance Statutory Trust, as seller (the "Seller"), ____________. as trustee (the
"Trustee"), ____________, as servicer (the "Servicer") and ____________, as
master servicer (the "Master Servicer") and as securities administrator (the
"Securities Administrator"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned to them in the Pooling
and Servicing Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Holder of this Certificate, by virtue
of the acceptance hereof, assents and by which such Holder is bound.
G-2-3
Distributions of principal of and interest on this Certificate (including
the final distribution on this Certificate) will be made out of the Available
Distribution Amount, to the extent and subject to the limitations set forth in
the Pooling and Servicing Agreement, on the __ day of each month commencing in
____________ or, if such __ day is not a Business Day, the Business Day
immediately following (a "Distribution Date"), to the Person in whose name this
Certificate is registered at the close of business on the Business Day preceding
such Distribution Date (the related "Record Date"). All sums distributed on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Pass-Through Rate on the Class [M- ] Certificates for any Distribution
Date will be equal to [ - ]. Principal and interest will be distributed on this
Certificate on any Distribution Date in the manner specified in the Pooling and
Servicing Agreement. Distributions allocated to the Class [M- ] Certificates
will be allocated among the Certificates of such Class pro rata based upon their
respective Percentage Interests, with a final distribution to be made upon
retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 200_-_Mortgage-Backed Certificates,
Series 200_-_ (herein called the "Certificates") and representing a Percentage
Interest specified on the face hereof in the Class M- [ ] Certificates. The
Certificates are issued in six classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates evidence in the aggregate 100% of the
beneficial ownership of the Trust.
The Class [M- ] Certificates will be subordinated to the Class A [and]
Class [M- ] Certificates, and the Class [ - ], Class C, Class P, Class R and
Class RX Certificates will be subordinated to the Class M-1 and Class M-2
Certificates, in each case to the extent provided in the Pooling and Servicing
Agreement.
Certain Realized Losses on and certain other shortfalls in respect of the
Mortgage Loans will be allocated on any Distribution Date to Holders of Class M
Certificates by allocation to the related Certificates of an Applied Loss Amount
in the manner set forth in the Pooling and Servicing Agreement. Applied Loss
Amounts will be allocated on each Distribution Date to the Class M Certificates
in reverse order of their respective numerical Class designations until the
respective Certificate Principal Balance of each such Class is reduced to zero.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Distribution Account, the Custodial Account and
related accounts shall be made from time to time for purposes other than
distributions to Holders, such purposes including reimbursement of fees and
expenses, including Advances made by the Servicer, and certain expenses and
indemnities amounts incurred with respect to the Mortgage Loans and
administration of the Trust.
So long as this Certificate is registered in the name of a Depository or
its nominee, the Securities Administrator shall make distributions on each
Distribution Date to the Holder of such
G-2-4
Certificate as of the related Record Date either (i) by wire transfer of
immediately available funds to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such Holder has so notified
the Securities Administrator at least five Business Days prior to the related
Record Date or (ii) by check mailed by first class mail to such Holder at the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Securities Administrator of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency of the Securities Administrator specified in the final
distribution notice to Certificateholders.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer, the Trustee, the Master Servicer,
the Securities Administrator and the Seller, the Master Servicer, the Securities
Administrator and the rights of the Holders under the Pooling and Servicing
Agreement at any time by the Depositor, the Trustee, the Seller and the
Servicer, with the consent of the Holders of a Majority of Interest of each
Class of Certificates (and in certain circumstances a higher percentage of such
Voting Interests as specified in the Pooling and Servicing Agreement). 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 or exchange hereof or in lieu herefor,
regardless of whether notation of such consent is made upon this Certificate.
The Pooling and Servicing 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 Pooling and Servicing Agreement and subject to any
limitations on transfer of this Certificate by the Depository or its nominee and
certain limitations set forth in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the applicable
Corporate Trust Office of the Securities Administrator or such other offices or
agencies appointed by the Securities Administrator for that purpose or such
other locations, if any, provided in the Pooling and Servicing Agreement, duly
endorsed by, or accompanied by an assignment in the form attached hereto or
other written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates of this Class will be registered as one or more certificates held
by the Depository or its nominee and beneficial interests will be held by
Beneficial Owners through the book-entry facilities of the Depository or its
nominee in minimum denominations of $100,000 and integral multiples of $1 in
excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, at the option of the Certificateholder,
Certificates may be exchanged for other Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
upon the surrender of the Certificates to be exchanged at the office or agency
of the Securities Administrator. No service charge will be made for any such
registration of
G-2-5
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Master Servicer, the Securities
Administrator and the Trustee and any agent of the Depositor, the Servicer, the
Master Servicer, the Securities Administrator and 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 Servicer, the Master Servicer, the
Securities Administrator, the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Pooling and Servicing Agreement and the
Trust created thereby shall terminate upon the earlier of (a) the purchase by
the Servicer of all Mortgage Loans (and REO Properties) remaining in the Trust
Fund pursuant to the terms and conditions of the Pooling and Servicing Agreement
and (b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts to be distributed to
them. In no event shall the Trust continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of the
St. James's, living on the date hereof and (ii) the Latest Possible Maturity
Date. Pursuant to the terms of the Pooling and Servicing Agreement, the Servicer
may make an Clean-up Call or cause an Clean-up Call to be made pursuant to
Section 13.1 of the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not represent entitlement
to any benefit under the Pooling and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust not in its individual capacity but solely as Securities Administrator
under the Pooling and Servicing Agreement.
G-2-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: __________ _____________, NOT IN ITS INDIVIDUAL
CAPACITY, BUT SOLELY AS SECURITIES
ADMINISTRATOR
BY:
-----------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS [M- ] CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
__________, AS SECURITIES ADMINISTRATOR
BY:
-----------------------------------
AUTHORIZED OFFICER
G-2-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
G-2-8
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE___________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust, with full power of substitution in the
premises.
Dated:
---------------- ----------------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
____________________________________
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial bank
or trust company or by a member firm
of the New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not acceptable.
G-2-9
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 reports and statements should be mailed to
____________________________________________. This information is provided by
______________________________________________, the assignee named above, or
__________________________________, as its agent.
G-2-10
EXHIBIT G-3
FORM OF CLASS C CERTIFICATE
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT OR
INDIRECT BENEFICIAL INTEREST IN 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") AND
CERTAIN OTHER PROPERTY.
THIS CLASS C CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES OF THIS
SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CLASS C CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS C CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 11.2 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
INCLUDING AN, COLLECTIVE INVESTMENT FUND (OR INSURANCE COMPANY GENERAL ACCOUNT)
OR INDIVIDUAL RETIREMENT ACCOUNT THAT IS SUBJECT TO TITLE I OF ERISA, THE CODE
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA), OR A CHURCH PLAN
(AS DEFINED IN SECTION 3(33) OF ERISA) OR OTHER EMPLOYEE BENEFIT PLAN OR
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH
IS SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
("SIMILAR LAW") (EACH, A "PLAN") OR TO ANY PERSON ACTING DIRECTLY OR INDIRECTLY
ON BEHALF OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE REGISTERED EXCEPT AS
PROVIDED IN THE POOLING AND SERVICING AGREEMENT.
G-3-1
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS C
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
DATE OF POOLING AND CERTIFICATE PRINCIPAL BALANCE OF THE
SERVICING AGREEMENT: CLASS C CERTIFICATES AS OF THE CLOSING
AS OF ___________________ DATE: $[ - ]
MORTGAGE LOAN CUT-OFF
CLOSING DATE: ___________________ DATE BALANCE: $[ - ]
FIRST DISTRIBUTION DATE: SERVICER: ___________________
___________________
PERCENTAGE INTEREST: [ - ]% TRUSTEE: ___________________
NO. 1 CUSIP NO.: [ - ]
G-3-2
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS C
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of mortgage loans (the "Mortgage Loans") formed and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, THE DEPOSITOR, THE SELLER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR
GUARANTEED BY ANY PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of a Percentage Interest set forth above in that certain
beneficial ownership interest evidenced by all the Class C Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement") by and among Xxxxx Asset
Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage Finance
Statutory Trust, as Seller (the "Seller"), ________________, as trustee (the
"Trustee"), ________________, as servicer (the "Servicer") and ________________,
as master servicer (the "Master Servicer") and as securities administrator (the
"Securities Administrator"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Pooling and Servicing
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Distributions of principal of and interest (based on a notional amount) on
this Certificate (including the final distribution on this Certificate) will be
made out of the Available Funds, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the __ day of each month
commencing in ________ or, if such __ day is not a Business Day, the Business
Day immediately following (a "Distribution Date"), to the Person in whose name
this Certificate is registered at the close of business on the Business Day
preceding such Distribution Date (the related "Record Date"). All sums
distributed on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Certificate is one of a duly authorized issue of Certificates
designated as Luminent Mortgage Trust 200_-_ Mortgage-Backed Certificates, of
the Series specified on the face hereof (herein called the "Certificates") and
representing the Percentage Interest specified on the face hereof. Distributions
allocated to the Class C Certificates will be allocated among the
G-3-3
Certificates of such Class pro rata based upon their respective Percentage
Interests with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
The Class C Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, withdrawals from the
Distribution Account, the Custodial Account and related accounts shall be made
from time to time for purposes other than distributions to Holders, such
purposes including reimbursement of fees and expenses, including Advances made
by the Servicer, and certain expenses and indemnities amounts incurred with
respect to the Mortgage Loans and administration of the Trust.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Trustee, the Seller, the Master Servicer, the
Securities Administrator and the Servicer and the rights of the Holders under
the Pooling and Servicing Agreement at any time by the Depositor, the Trustee,
the Seller, the Master Servicer, the Securities Administrator and the Servicer,
with the consent of the Holders of a Majority of Interest of each Class of
Certificates (and in certain circumstances a higher percentage of such Voting
Interests as specified in the Pooling and Servicing Agreement). 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 or exchange hereof or in lieu herefor, regardless of whether
notation of such consent is made upon this Certificate. The Pooling and
Servicing 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 Pooling and Servicing Agreement and subject to any
limitations on transfer of this Certificate by the Depository or its nominee and
certain limitations set forth in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the applicable
Corporate Trust Office of the Securities Administrator or such other offices or
agencies appointed by the Securities Administrator for that purpose or such
other locations, if any, provided in the Pooling and Servicing Agreement, duly
endorsed by, or accompanied by an assignment in the form attached hereto or
other written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests specified in the
Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, at the option of the Certificateholder,
Certificates may be exchanged for other Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
upon the surrender of the Certificates to be exchanged at the office or agency
G-3-4
of the Securities Administrator. No service charge will be made for any such
registration of transfer or exchange, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
No transfer of any Class C Certificates shall be made unless that transfer
is made pursuant to an effective registration statement under the Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification and in each case, in accordance with Section 11.2 of the Pooling
and Servicing Agreement. In the event that a transfer is to be made without
registration or qualification under the Act and applicable state securities
laws, the Securities Administrator shall not register such transfer unless and
until the prospective transferee provides the Securities Administrator with the
certifications and opinions required by Section 11.2 of the Pooling and
Servicing Agreement. Any such Holder desiring to effect such transfer shall, and
does hereby agree to, indemnify the Depositor, the Trustee, the Seller, the
Master Servicer, the Securities Administrator and the Servicer against any
liability that may result if the transfer is not exempt from registration under
the Act and all applicable state securities laws or is not made in accordance
with such federal and state laws.
Further, except for certain transfers identified in Section 11.2 of the
Pooling and Servicing Agreement, no transfer of a Class C Certificate shall be
made unless and until the prospective transferee provides the Securities
Administrator with a properly executed and completed Benefit Plan Affidavit (or
a Benefit Plan Opinion, if required pursuant to the Benefit Plan Affidavit),
which Affidavit (or Opinion, if required) shall not be obtained at the expense
of the Trustee, the Depositor, the Master Servicer, the Securities Administrator
or the Servicer. Notwithstanding anything herein to the contrary, any purported
transfer of a Class C Certificate to or on behalf of a Plan (as defined in the
Benefit Plan Affidavit) or any person acting, directly or indirectly, on behalf
of a Plan or investing assets of a Plan without delivery of a Benefit Plan
Opinion shall be null and void.
The Depositor, the Servicer, the Trustee, the Seller, the Master Servicer,
the Securities Administrator and the Originator and any agent of the Depositor,
the Servicer 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 Servicer, the Master Servicer, the Securities Administrator, the Trustee,
nor any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling and Servicing Agreement and the
Trust created thereby shall terminate upon the earlier of (a) the purchase by
the Servicer of all Mortgage Loans (and REO Properties) remaining in the Trust
Fund pursuant to the terms and conditions of the Pooling and Servicing Agreement
and (b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts to be distributed to
them. In no event shall the Trust continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of the
St. James's, living on the date hereof and (ii) the Latest Possible Maturity
Date. Pursuant to the terms of the Pooling and Servicing Agreement, the Servicer
may make a Clean-
G-3-5
up Call or cause a Clean-up Call to be made pursuant to Section 13.1 of the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual or facsimile signature, this Certificate
shall not represent entitlement to any benefit under the Pooling and Servicing
Agreement or be valid for any purpose.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust not in its individual capacity but solely as Securities Administrator
under the Pooling and Servicing Agreement.
G-3-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: __________ _______________________, NOT IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY AS
SECURITIES ADMINISTRATOR
BY:
----------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
_______________________, AS SECURITIES
ADMINISTRATOR
BY:
----------------------------------
AUTHORIZED OFFICER
G-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right ________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
G-3-8
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE___________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust, with full power of substitution in the
premises.
Dated:
----------------- --------------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------------
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial bank
or trust company or by a member firm of
the New York Stock Exchange or another
national securities exchange. Notarized or
witnessed signatures are not acceptable.
G-3-9
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 reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
G-3-10
EXHIBIT G-4
FORM OF CLASS P CERTIFICATE
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF 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") AND CERTAIN OTHER
PROPERTY.
THIS CLASS P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 11.2 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
INCLUDING AN, COLLECTIVE INVESTMENT FUND (OR INSURANCE COMPANY GENERAL ACCOUNT)
OR INDIVIDUAL RETIREMENT ACCOUNT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE CODE OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA), OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) OR OTHER EMPLOYEE BENEFIT PLAN OR RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS
SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR
LAW") (EACH, A "PLAN") OR TO ANY PERSON ACTING, DIRECTLY OR INDIRECTLY ON BEHALF
OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE REGISTERED EXCEPT AS PROVIDED IN
THE POOLING AND SERVICING AGREEMENT.
G-4-1
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_, CLASS P
THE PRINCIPAL OF THIS CERTIFICATE IS SUBJECT TO PREPAYMENT FROM TIME TO
TIME WITHOUT SURRENDER OF OR NOTATION ON THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW, AND MAY BE ZERO. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF ___________________
CLOSING DATE: ___________________
FIRST DISTRIBUTION DATE: ____________
PERCENTAGE INTEREST: [ - ]%
NO. 1
CERTIFICATE PRINCIPAL BALANCE OF THE
CLASS P CERTIFICATES AS OF THE CLOSING
DATE: $[ - ]
MORTGAGE LOAN CUT-OFF
DATE BALANCE: $[ - ]
SERVICER: ___________________
TRUSTEE: ____________________
CUSIP NO.: [ - ]
G-4-2
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_, CLASS P
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate one- to four-family first lien mortgage
loans formed and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, THE DEPOSITOR, THE SELLER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR
GUARANTEED BY ANY PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of a Percentage Interest set forth above in
that certain beneficial ownership interest evidenced by all the Class P
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement") by
and among Xxxxx Asset Securitization, Inc., as depositor (the "Depositor"), Maia
Mortgage Finance Statutory Trust, as Seller (the "Seller"), ________________, as
trustee (the "Trustee"), ________________, as servicer (the "Servicer"), and
________________ and as master servicer (the "Master Servicer") and as
securities administrator (the "Securities Administrator") a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
Distributions of principal of this Certificate (including the final
distribution on this Certificate) and any other amounts required to be
distributed to the Holders of Class P Certificates on such Distribution Date
pursuant to the Pooling and Servicing Agreement will be made out of the
Available Funds, to the extent and subject to the limitations set forth in the
Pooling and Servicing Agreement, on the __ day of each month commencing in
________ or, if such __ day is not a Business Day, the Business Day immediately
following (a "Distribution Date"), to the Person in whose name this Certificate
is registered at the close of business on the Business Day preceding such
Distribution Date (the related "Record Date"). All sums distributed on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
This Certificate is one of a duly authorized issue of Certificates
designated as Luminent Mortgage Trust 200_-_ Mortgage-Backed Certificates, of
the Series specified on the face hereof (herein called the "Certificates") and
representing the Percentage Interest specified on the face hereof. Distributions
allocated to the Class P Certificates will be allocated among the Certificates
of such Class pro rata based upon their respective Percentage Interests with a
final
G-4-3
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Pooling and Servicing Agreement. As provided in the Pooling
and Servicing Agreement, withdrawals from the Distribution Account, the
Custodial Account and related accounts shall be made from time to time for
purposes other than distributions to Holders, such purposes including
reimbursement of fees and expenses, including Advances made by the Servicer, and
certain expenses and indemnities amounts incurred with respect to the Mortgage
Loans and administration of the Trust.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Trustee, the Seller, the Master Servicer, the
Securities Administrator and the Servicer and the rights of the Holders under
the Pooling and Servicing Agreement at any time by the Depositor, the Trustee,
the Seller, the Master Servicer, the Securities Administrator and the Servicer,
with the consent of the Holders of a Majority of Interest of each Class of
Certificates (and in certain circumstances a higher percentage of such Voting
Interests as specified in the Pooling and Servicing Agreement). 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 or exchange hereof or in lieu herefor, regardless of whether
notation of such consent is made upon this Certificate. The Pooling and
Servicing 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 Pooling and Servicing Agreement and subject to any
limitations on transfer of this Certificate by the Depository or its nominee and
certain limitations set forth in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the applicable
Corporate Trust Office of the Securities Administrator or such other offices or
agencies appointed by the Securities Administrator for that purpose or such
other locations, if any, provided in the Pooling and Servicing Agreement, duly
endorsed by, or accompanied by an assignment in the form attached hereto or
other written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only without coupons
in Classes and denominations representing Percentage Interests specified in the
Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, at the option of the Certificateholder,
Certificates may be exchanged for other Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
upon the surrender of the Certificates to be exchanged at the office or agency
of the Securities Administrator. No service charge will be made for any such
registration of
G-4-4
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
No transfer of any Class P Certificates shall be made unless that transfer
is made pursuant to an effective registration statement under the Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification and in each case, in accordance with Section 11.2 of the Pooling
and Servicing Agreement. In the event that a transfer is to be made without
registration or qualification under the Act and applicable state securities
laws, the Securities Administrator shall not register such transfer unless and
until the prospective transferee provides the Securities Administrator with the
certifications and opinions required by Section 11.2 of the Pooling and
Servicing Agreement. Any such Holder desiring to effect such transfer shall, and
does hereby agree to, indemnify the Depositor, the Trustee, the Seller, the
Master Servicer, the Securities Administrator and the Servicer against any
liability that may result if the transfer is not exempt from registration under
the Act and all applicable state securities laws or is not made in accordance
with such federal and state laws.
Further, except for certain transfers identified in Section 11.2 of the
Pooling and Servicing Agreement, no transfer of a Class P Certificate shall be
made unless and until the prospective transferee provides the Securities
Administrator with a properly executed and completed Benefit Plan Affidavit (or
a Benefit Plan Opinion, if required pursuant to the Benefit Plan Affidavit),
which Affidavit (or Opinion, if required) shall not be obtained at the expense
of the Trustee, the Depositor, the Servicer, the Master Servicer or the
Securities Administrator. Notwithstanding anything herein to the contrary, any
purported transfer of a Class P Certificate to or on behalf of a Plan (as
defined in the Benefit Plan Affidavit) or any person acting, directly or
indirectly, on behalf of a Plan or investing assets of a Plan without delivery
of a Benefit Plan Opinion shall be null and void.
The Depositor, the Servicer, the Trustee, the Seller, the Master Servicer,
the Securities Administrator and the Originator and any agent of the Depositor,
the Servicer 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 Servicer, the Trustee, nor any such agent shall be affected by notice to the
contrary.
The obligations created by the Pooling and Servicing Agreement and the
Trust created thereby shall terminate upon the earlier of (a) the purchase by
the Servicer of all Mortgage Loans (and REO Properties) remaining in the Trust
Fund pursuant to the terms and conditions of the Pooling and Servicing Agreement
and (b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts to be distributed to
them. In no event shall the Trust continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of the
St. James's, living on the date hereof and (ii) the Latest Possible Maturity
Date. Pursuant to the terms of the Pooling and Servicing Agreement, the Servicer
may make an Clean-up Call or cause an Clean-up Call to be made pursuant to
Section 13.1 of the Pooling and Servicing Agreement.
G-4-5
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual or facsimile signature, this Certificate shall not represent
entitlement to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
The Securities Administrator has executed this Certificate on behalf of the
Trust not in its individual capacity but solely as Securities Administrator
under the Pooling and Servicing Agreement.
G-4-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: _____________, NOT IN ITS INDIVIDUAL
------------- CAPACITY, BUT SOLELY AS SECURITIES
ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
_____________, AS SECURITIES
ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
G-4-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform
of survivorship and not as Gifts to Minors
tenants in common Act
_______________
(State)
Additional abbreviations may also be used though not in the above list.
G-4-8
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust, with full power of substitution in the
premises.
Dated: -----------------------------------
----------------- NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------------
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial
bank or trust company or by a member
firm of the New York Stock Exchange
or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
G-4-9
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 reports and
statements should be mailed to ____________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or __________________________________, as its agent.
G-4-10
EXHIBIT G-5
FORM OF CLASS R CERTIFICATE
THE CLASS R CERTIFICATES ARE SUBORDINATED TO THE OTHER CLASSES OF THE
CERTIFICATES ISSUED BY THE TRUST DESCRIBED HEREIN TO THE EXTENT DESCRIBED HEREIN
AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS. THIS
CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER
SUCH LAWS OR QUALIFICATION FOR AN EXEMPTION FROM SUCH REGISTRATION. THE
SECURITIES ADMINISTRATOR SHALL REQUIRE A CERTIFICATE FROM ANY TRANSFEROR AND
TRANSFEREE HEREOF DEMONSTRATING COMPLIANCE WITH APPLICABLE SECURITIES LAWS AND,
UNDER CERTAIN CIRCUMSTANCES, THE SECURITIES ADMINISTRATOR MAY REQUIRE AN OPINION
OF COUNSEL WITH RESPECT TO SUCH REGISTRATION OR QUALIFICATION. ANY TRANSFEREE OF
THIS CERTIFICATE MUST DELIVER TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE
DEPOSITOR AND THE SERVICER A RESIDUAL TRANSFEREE AGREEMENT CONTAINING CERTAIN
REPRESENTATIONS AND COVENANTS. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CLASS R CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES THE
SECURITIES ADMINISTRATOR WITH A RESIDUAL TRANSFEREE AGREEMENT CONTAINING CERTAIN
REPRESENTATIONS AND COVENANTS, AN AFFIDAVIT RELATING TO VARIOUS TAX MATTERS, AND
AN AFFIDAVIT RELATING TO VARIOUS ERISA MATTERS (AND AN OPINION OF COUNSEL AS TO
ERISA MATTERS IF REQUIRED UNDER SUCH AFFIDAVIT), ALL AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF A CLASS R CERTIFICATE
SHALL BE PERMITTED TO BE MADE TO A DISQUALIFIED ORGANIZATION, WHICH GENERALLY
INCLUDES ANY ENTITY THAT WOULD BE EXEMPT FROM FEDERAL INCOME TAXATION (INCLUDING
THE TAX ON UNRELATED BUSINESS TAXABLE INCOME) ON INCOME DERIVED FROM THIS CLASS
R CERTIFICATE. RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE ARE DESCRIBED MORE
FULLY HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
INCLUDING AN, COLLECTIVE INVESTMENT FUND (OR INSURANCE COMPANY GENERAL ACCOUNT)
OR INDIVIDUAL RETIREMENT ACCOUNT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE CODE OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA), OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) OR OTHER EMPLOYEE BENEFIT PLAN OR RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS
G-5-1
SUBSTANTIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR
LAW") (EACH, A "PLAN") OR TO ANY PERSON ACTING, DIRECTLY OR INDIRECTLY ON BEHALF
OF A PLAN OR USING THE ASSETS OF A PLAN WILL BE REGISTERED.
THE HOLDER OF THIS RESIDUAL CERTIFICATE IS NOT ENTITLED TO SCHEDULED
DISTRIBUTIONS OF PRINCIPAL OR INTEREST.
G-5-2
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS R CERTIFICATE
THIS CLASS R CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP OF A REMIC
RESIDUAL INTEREST IN EACH OF TWO REMICS UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED.
DATE OF POOLING AND SERVICING
AGREEMENT:
AS OF ___________________
CLOSING DATE: ___________________
PERCENTAGE INTEREST: [ - ]%
NO. 1
MORTGAGE LOAN CUT-OFF
DATE BALANCE: $[ - ]
SERVICER: ___________________
TRUSTEE: ____________________
G-5-3
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS R
evidencing a beneficial ownership interest in a Trust that consists primarily of
a pool of Mortgage Loans (the "Mortgage Loans") formed and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, THE DEPOSITOR, THE SELLER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR
GUARANTEED BY ANY PERSON.
THIS CERTIFIES THAT:
[ - ]
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class R Certificates issued by Luminent Mortgage Trust 200_-_ (the
"Trust"), which was created pursuant to a Pooling and Servicing Agreement, dated
as of ________________ (the "Pooling and Servicing Agreement") by and among
Xxxxx Asset Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage
Finance Statutory Trust, as seller (the "Seller"), ________________, as trustee
(the "Trustee"), ________________, as servicer (the "Servicer") and
________________, as master servicer (the "Master Servicer") and as securities
administrator (the "Securities Administrator"), a summary of certain of the
pertinent provisions of which is set forth hereinafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Pooling and Servicing Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement the Holder of this
Certificate, by virtue of the acceptance hereof, assents and by which such
Holder is bound.
The Holder of this Certificate will not be entitled to any scheduled
distributions of principal or interest. Distributions on this Certificate, if
any (including the final distribution on this Certificate), will be made on the
__ day of each month commencing in ________________ or, if such __ day is not a
Business Day, the Business Day immediately following (a "Distribution Date"), to
the Person in whose name this Certificate is registered at the close of business
on the Business Day preceding such Distribution Date (the related "Record
Date"). All sums distributed on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Distributions, if any, will be made to the Holders of the Class R
Certificates as described in the Pooling and Servicing Agreement. Distributions
allocated to the Class R Certificates will be allocated among the Certificates
of such Class pro rata based upon their respective Percentage Interests, with a
final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
G-5-4
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 200_-_ Mortgage-Backed Certificates,
Series 200_-_ (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof. The
Certificates are issued in nineteen classes as specifically set forth in the
Pooling and Servicing Agreement. The Class R Certificates are sometimes referred
to as the "Residual Certificates." The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
The Class R Certificates will be subordinated to the Certificates of all
other Classes (other than the Class RX Certificates) to the extent provided in
the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Distribution Account, the Custodial Account and
related accounts shall be made from time to time for purposes other than
distributions to Holders, such purposes including reimbursement of fees and
expenses, including Advances made by the Servicer, and certain expenses and
indemnities amounts incurred with respect to the Mortgage Loans and
administration of the Trust.
An election will be made to treat certain of the assets assigned to the
Trust as two separate real estate mortgage investment conduits ("REMICs") under
the Internal Revenue Code of 1986, as amended (the "Code"). Assuming that the
elections are made properly and that certain qualification requirements
concerning the Mortgage Loans and the Certificates are met, the Holder of this
Certificate will be treated for federal income tax purposes as the beneficial
owner of a "residual interest" in each of the two REMICs, as described in the
Pooling and Servicing Agreement. Accordingly, the Holder of this Class R
Certificate will be taxed on its pro rata share of each such REMIC's taxable
income or net loss. The requirement that the Holder of this Class R Certificate
report its pro rata share of such income or loss will continue until there are
no Certificates of any Class outstanding.
By accepting this Certificate, the Holder of this Certificate agrees to be
bound by all of the provisions of the Pooling and Servicing Agreement, and, in
particular, agrees that it shall (i) take any action required by the Code or
Treasury regulations thereunder in order to create or maintain the REMIC status
of each REMIC and (ii) refrain from taking any action that could endanger such
status.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Trustee, the Seller, the Master Servicer, the
Securities Administrator and the Servicer and the rights of the Holders under
the Pooling and Servicing Agreement at any time by the Depositor, the Trustee,
the Seller, the Master Servicer, the Securities Administrator and the Servicer,
with the consent of the Holders of Certificates evidencing at least a majority
of the Voting Interests of each Class affected by the proposed amendment (and in
certain circumstances a higher percentage of such Voting Interests as specified
in the Pooling and Servicing Agreement). Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder
G-5-5
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer or exchange hereof or in lieu herefor, regardless of whether
notation of such consent is made upon this Certificate. The Pooling and
Servicing 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 Pooling and Servicing Agreement and subject to any
limitations on transfer of this Certificate by the Depository or its nominee and
certain limitations set forth in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the applicable
Corporate Trust Office of the Securities Administrator or such other offices or
agencies appointed by the Securities Administrator for that purpose or such
other locations, if any, provided in the Pooling and Servicing Agreement, duly
endorsed by, or accompanied by an assignment in the form attached hereto or
other written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Certificates of this Class are issuable in fully-registered,
certificated form without coupons in minimum Percentage Interests of 10% and
integral multiples thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
No transfer of any Class R Certificates shall be made unless that transfer
is made pursuant to an effective registration statement under the Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification and in each case, in accordance with Section 11.2 of the Pooling
and Servicing Agreement. In the event that a transfer is to be made without
registration or qualification under the Act and applicable state securities
laws, the Securities Administrator shall not register such transfer unless and
until the prospective transferee provides the Securities Administrator with the
certifications and opinions required by Section 11.2 of the Pooling and
Servicing Agreement. Any such Holder desiring to effect such transfer shall, and
does hereby agree to, indemnify the Depositor, the Trustee, the Seller, the
Master Servicer, the Securities Administrator and the Servicer against any
liability that may result if the transfer is not exempt from registration under
the Act and all applicable state securities laws or is not made in accordance
with such federal and state laws.
Further, no transfer of a Class R Certificate shall be made unless and
until the prospective transferee provides the Securities Administrator with a
properly executed and completed Benefit Plan Affidavit in accordance with
Section 11.2(c) of the Pooling and Servicing Agreement.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
for all purposes to have consented to the provisions of Section 11.2(f) of the
Pooling and Servicing Agreement,
G-5-6
including the requirement that any transferee of this Certificate provide a
properly executed affidavit substantially in the form of Exhibit K to the
Pooling and Servicing Agreement.
If a tax or a reporting cost is borne by any REMIC as a result of the
transfer of a Class R Certificate (or any beneficial interest therein) in
violation of the restrictions set forth herein and in the Pooling and Servicing
Agreement, the Securities Administrator shall pay such tax or reporting cost
with amounts that otherwise would have been paid to the transferee of the Class
R Certificate (or beneficial interest therein). In that event, neither the
transferee nor the transferor shall have any right to seek repayment of such
amounts from the Depositor, the Trustee, the Master Servicer, the Securities
Administrator, the Servicer, any REMIC or any other Holders, and none of such
parties shall have any liability for payment of any such tax or reporting cost.
The Depositor, the Servicer, the Master Servicer, the Securities
Administrator and the Trustee and any agent of the Depositor, the Servicer, the
Master Servicer, the Securities Administrator and the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Servicer, the Master Servicer, the
Securities Administrator and the Trustee nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Pooling and Servicing Agreement and the
Trust created thereby shall terminate upon the earlier of (a) the purchase by
the Servicer of all Mortgage Loans (and REO Properties) remaining in the Trust
Fund pursuant to the terms and conditions of the Pooling and Servicing Agreement
and (b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts to be distributed to
them. In no event shall the Trust continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of the
St. James's, living on the date hereof and (ii) the Latest Possible Maturity
Date. Pursuant to the terms of the Pooling and Servicing Agreement, the Servicer
may make an Clean-up Call or cause an Clean-up Call to be made pursuant to
Section 13.1 of the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual signature, this Certificate shall not
represent entitlement to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
This Class R Certificate is a security governed by Article 8 of the Uniform
Commercial Code.
The Securities Administrator has executed this Certificate on behalf of the
Trust not in its individual capacity but solely as Securities Administrator
under the Pooling and Servicing Agreement.
G-5-7
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ____________, NOT IN ITS INDIVIDUAL
------------ CAPACITY, BUT SOLELY AS SECURITIES
ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
____________, AS SECURITIES
ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
G-5-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian (Cust)
(Minor) under
Uniform Gifts
to Minors Act
__________________
(State)
Additional abbreviations may also be used though not in the above list.
G-5-9
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE __________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust, with full power of substitution in the
premises.
Dated: ----------------------------------------
----------------- NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
----------------------------------------
SIGNATURE GUARANTEED: The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of the
New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not
acceptable.
G-5-10
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 reports and statements should be mailed to ________________________
________________________________________. This information is provided by
__________________________________________, the assignee named above, or
___________________________________________________, as its agent.
G-5-11
EXHIBIT G-6
FORM OF CLASS RX CERTIFICATE
THE CLASS RX CERTIFICATES ARE SUBORDINATED TO THE OTHER CLASSES OF THE
CERTIFICATES ISSUED BY THE TRUST DESCRIBED HEREIN TO THE EXTENT DESCRIBED HEREIN
AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS. THIS
CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER
SUCH LAWS OR QUALIFICATION FOR AN EXEMPTION FROM SUCH REGISTRATION. THE
SECURITIES ADMINISTRATOR SHALL REQUIRE A CERTIFICATE FROM ANY TRANSFEROR AND
TRANSFEREE HEREOF DEMONSTRATING COMPLIANCE WITH APPLICABLE SECURITIES LAWS AND,
UNDER CERTAIN CIRCUMSTANCES, THE SECURITIES ADMINISTRATOR MAY REQUIRE AN OPINION
OF COUNSEL WITH RESPECT TO SUCH REGISTRATION OR QUALIFICATION. ANY TRANSFEREE OF
THIS CERTIFICATE MUST DELIVER TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE
DEPOSITOR AND THE SERVICER A RESIDUAL TRANSFEREE AGREEMENT CONTAINING CERTAIN
REPRESENTATIONS AND COVENANTS. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CLASS RX CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES THE
SECURITIES ADMINISTRATOR WITH A RESIDUAL TRANSFEREE AGREEMENT CONTAINING CERTAIN
REPRESENTATIONS AND COVENANTS, AN AFFIDAVIT RELATING TO VARIOUS TAX MATTERS, AND
AN AFFIDAVIT RELATING TO VARIOUS ERISA MATTERS (AND AN OPINION OF COUNSEL AS TO
ERISA MATTERS IF REQUIRED UNDER SUCH AFFIDAVIT), ALL AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF A CLASS RX
CERTIFICATE SHALL BE PERMITTED TO BE MADE TO A DISQUALIFIED ORGANIZATION, WHICH
GENERALLY INCLUDES ANY ENTITY THAT WOULD BE EXEMPT FROM FEDERAL INCOME TAXATION
(INCLUDING THE TAX ON UNRELATED BUSINESS TAXABLE INCOME) ON INCOME DERIVED FROM
THIS CLASS RX CERTIFICATE. RESTRICTIONS ON TRANSFER OF THIS CERTIFICATE ARE
DESCRIBED MORE FULLY HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
INCLUDING AN, COLLECTIVE INVESTMENT FUND (OR INSURANCE COMPANY GENERAL ACCOUNT)
OR INDIVIDUAL RETIREMENT ACCOUNT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE CODE OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA), OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) OR OTHER EMPLOYEE BENEFIT PLAN OR RETIREMENT
ARRANGEMENT THAT IS
G-6-1
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SUBSTANTIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (EACH, A "PLAN") OR TO
ANY PERSON ACTING, DIRECTLY OR INDIRECTLY ON BEHALF OF A PLAN OR USING THE
ASSETS OF A PLAN WILL BE REGISTERED.
THE HOLDER OF THIS RESIDUAL CERTIFICATE IS NOT ENTITLED TO SCHEDULED
DISTRIBUTIONS OF PRINCIPAL OR INTEREST.
G-6-2
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS RX CERTIFICATE
THIS CLASS RX CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP OF A REMIC
RESIDUAL INTEREST IN EACH OF TWO REMICS UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF ___________________
CLOSING DATE: ___________________
PERCENTAGE INTEREST: [-]%
NO. 1
MORTGAGE LOAN CUT-OFF
DATE BALANCE: $[-]
SERVICER: ___________________
TRUSTEE: ____________________
G-6-3
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS RX
evidencing a beneficial ownership interest in a Trust that consists primarily of
a pool of Mortgage Loans (the "Mortgage Loans") formed and sold by
XXXXX ASSET SECURITIZATION, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, THE DEPOSITOR, THE SELLER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT INSURED OR
GUARANTEED BY ANY PERSON.
THIS CERTIFIES THAT:
[-]
is the registered owner of the Percentage Interest evidenced by this Certificate
in the Class RX Certificates issued by Luminent Mortgage Trust 200_-_ (the
"Trust"), which was created pursuant to a Pooling and Servicing Agreement, dated
as of ____________ (the "Pooling and Servicing Agreement") by and among Xxxxx
Asset Securitization, Inc., as depositor (the "Depositor"), Maia Mortgage
Finance Statutory Trust, as seller (the "Seller"), ________________, as trustee
(the "Trustee"), ____________, as servicer (the "Servicer") and ____________, as
master servicer (the "Master Servicer") and as securities administrator (the
"Securities Administrator"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned to them in the Pooling
and Servicing Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Holder of this Certificate, by virtue
of the acceptance hereof, assents and by which such Holder is bound.
The Holder of this Certificate will not be entitled to any scheduled
distributions of principal or interest. Distributions on this Certificate, if
any (including the final distribution on this Certificate), will be made on the
__ day of each month commencing in ____________ or, if such __ day is not a
Business Day, the Business Day immediately following (a "Distribution Date"), to
the Person in whose name this Certificate is registered at the close of business
on the Business Day preceding such Distribution Date (the related "Record
Date"). All sums distributed on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Distributions, if any, will be made to the Holders of the Class RX
Certificates as described in the Pooling and Servicing Agreement. Distributions
allocated to the Class RX Certificates will be allocated among the Certificates
of such Class pro rata based upon their
G-6-4
respective Percentage Interests, with a final distribution to be made upon
retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as the Luminent Mortgage Trust 200_-_ Mortgage-Backed Certificates,
Series 200_-_ (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof. The
Certificates are issued in nineteen classes as specifically set forth in the
Pooling and Servicing Agreement. The Class RX Certificates are sometimes
referred to as the "Residual Certificates." The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
The Class RX Certificates will be subordinated to the Certificates of all
other Classes (other than the Class R Certificates) to the extent provided in
the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Distribution Account, the Custodial Account and
related accounts shall be made from time to time for purposes other than
distributions to Holders, such purposes including reimbursement of fees and
expenses, including Advances made by the Servicer, and certain expenses and
indemnities amounts incurred with respect to the Mortgage Loans and
administration of the Trust.
An election will be made to treat certain of the assets assigned to the
Trust as two separate real estate mortgage investment conduits ("REMICs") under
the Internal Revenue Code of 1986, as amended (the "Code"). Assuming that the
elections are made properly and that certain qualification requirements
concerning the Mortgage Loans and the Certificates are met, the Holder of this
Certificate will be treated for federal income tax purposes as the beneficial
owner of a "residual interest" in each of the two REMICs, as described in the
Pooling and Servicing Agreement. Accordingly, the Holder of this Class RX
Certificate will be taxed on its pro rata share of each such REMIC's taxable
income or net loss. The requirement that the Holder of this Class RX Certificate
report its pro rata share of such income or loss will continue until there are
no Certificates of any Class outstanding.
By accepting this Certificate, the Holder of this Certificate agrees to be
bound by all of the provisions of the Pooling and Servicing Agreement, and, in
particular, agrees that it shall (i) take any action required by the Code or
Treasury regulations thereunder in order to create or maintain the REMIC status
of each REMIC and (ii) refrain from taking any action that could endanger such
status.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Trustee, the Seller, the Master Servicer, the
Securities Administrator and the Servicer and the rights of the Holders under
the Pooling and Servicing Agreement at any time by the Depositor, the Trustee,
the Seller, the Master Servicer, the Securities Administrator and the Servicer,
with the consent of the Holders of Certificates evidencing at least a majority
of the Voting Interests of
G-6-5
each Class affected by the proposed amendment (and in certain circumstances a
higher percentage of such Voting Interests as specified in the Pooling and
Servicing Agreement). 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 or exchange hereof
or in lieu herefor, regardless of whether notation of such consent is made upon
this Certificate. The Pooling and Servicing 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 Pooling and Servicing Agreement and subject to any
limitations on transfer of this Certificate by the Depository or its nominee and
certain limitations set forth in the Pooling and Servicing Agreement, the
transfer of this Certificate is registrable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the applicable
Corporate Trust Office of the Securities Administrator or such other offices or
agencies appointed by the Securities Administrator for that purpose or such
other locations, if any, provided in the Pooling and Servicing Agreement, duly
endorsed by, or accompanied by an assignment in the form attached hereto or
other written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Certificates of this Class are issuable in fully-registered,
certificated form without coupons in minimum Percentage Interests of 10% and
integral multiples thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Securities Administrator may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
No transfer of any Class RX Certificates shall be made unless that transfer
is made pursuant to an effective registration statement under the Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification and in each case, in accordance with Section 11.2 of the Pooling
and Servicing Agreement. In the event that a transfer is to be made without
registration or qualification under the Act and applicable state securities
laws, the Securities Administrator shall not register such transfer unless and
until the prospective transferee provides the Securities Administrator with the
certifications and opinions required by Section 11.2 of the Pooling and
Servicing Agreement. Any such Holder desiring to effect such transfer shall, and
does hereby agree to, indemnify the Depositor, the Trustee, the Seller, the
Master Servicer, the Securities Administrator and the Servicer against any
liability that may result if the transfer is not exempt from registration under
the Act and all applicable state securities laws or is not made in accordance
with such federal and state laws.
Further, no transfer of a Class RX Certificate shall be made unless and
until the prospective transferee provides the Securities Administrator with a
properly executed and
G-6-6
completed Benefit Plan Affidavit in accordance with Section 11.2(c) of the
Pooling and Servicing Agreement.
The Holder of this Certificate, by its acceptance hereof, shall be deemed
for all purposes to have consented to the provisions of Section 11.2(f) of the
Pooling and Servicing Agreement, including the requirement that any transferee
of this Certificate provide a properly executed affidavit substantially in the
form of Exhibit K to the Pooling and Servicing Agreement.
If a tax or a reporting cost is borne by any REMIC as a result of the
transfer of a Class RX Certificate (or any beneficial interest therein) in
violation of the restrictions set forth herein and in the Pooling and Servicing
Agreement, the Securities Administrator shall pay such tax or reporting cost
with amounts that otherwise would have been paid to the transferee of the Class
RX Certificate (or beneficial interest therein). In that event, neither the
transferee nor the transferor shall have any right to seek repayment of such
amounts from the Depositor, the Trustee, the Servicer, the Master Servicer, the
Securities Administrator, the Trust, any REMIC or any other Holders, and none of
such parties shall have any liability for payment of any such tax or reporting
cost.
The Depositor, the Servicer, the Master Servicer, the Securities
Administrator and the Trustee and any agent of the Depositor, the Servicer and
the Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Depositor, the Servicer and
the Trustee nor any such agent shall be affected by notice to the contrary.
The obligations created by the Pooling and Servicing Agreement and the
Trust created thereby shall terminate upon the earlier of (a) the purchase by
the Servicer of all Mortgage Loans (and REO Properties) remaining in the Trust
Fund pursuant to the terms and conditions of the Pooling and Servicing Agreement
and (b) the later of (i) the maturity or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts to be distributed to
them. In no event shall the Trust continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of the
St. James's, living on the date hereof and (ii) the Latest Possible Maturity
Date. Pursuant to the terms of the Pooling and Servicing Agreement, the Servicer
may make an Clean-up Call or cause an Clean-up Call to be made pursuant to
Section 13.1 of the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Securities Administrator, by manual signature, this Certificate shall not
represent entitlement to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
This Class RX Certificate is a security governed by Article 8 of the
Uniform Commercial Code.
G-6-7
The Securities Administrator has executed this Certificate on behalf of the
Trust not in its individual capacity but solely as Securities Administrator
under the Pooling and Servicing Agreement.
G-6-8
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed under its official seal.
Dated: ________________, NOT IN ITS INDIVIDUAL
---------------- CAPACITY, BUT SOLELY AS SECURITIES
ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS RX CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
________________, AS SECURITIES
ADMINISTRATOR
BY:
------------------------------------
AUTHORIZED OFFICER
G-6-9
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
under Uniform Gifts
to Minors Act
___________________
(State)
Additional abbreviations may also be used though not in the above
list.
G-6-10
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby irrevocably constitute and appoint
____________ (Attorney) to transfer the said Certificate in the Certificate
Register of the within-named Trust, with full power of substitution in the
premises.
Dated: ---------------------------------------
---------- NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
--------------------------------------
SIGNATURE GUARANTEED: The signature
must be guaranteed by a commercial
bank or trust company or by a member
firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are
not acceptable.
G-6-11
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 reports and
statements should be mailed to ____________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or
___________________________________________________, as its agent.
G-12
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
____________________________
Date
Re: LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES, SERIES 200_-_
CLASS [-] CERTIFICATES
Ladies and Gentlemen:
In connection with our disposition of the Luminent Mortgage Trust 200_-_
Mortgage-Backed Certificates, Series 200_-_ (the "Certificates"), we certify
that (a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being disposed by us in
a transaction that is exempt from the registration requirements of the Act, (b)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act, (c) to
the extent we are disposing of the Class [R][RX] Certificate, we have no
knowledge the Transferee is not a Permitted Transferee and (d) no purpose of the
proposed disposition of the Class [R][RX] Certificate is to impede the
assessment or collection of tax.
Very truly yours,
[-]
By:
-----------------------------------
Name:
Title:
X-0
XXXXXXX X-0
FORM OF NON-RULE 144A INVESTMENT LETTER
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS [_]
_________
(DATE)
Xxxxx Asset Securitization, Inc., as Depositor
________________, as Servicer
________________
________________
Attention: ________________
________________, as Trustee
________________
________________
Attention: ________________
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the captioned
securities (the "Purchased Securities"), the undersigned (the "Transferee")
hereby certifies and covenants to the transferor, the Depositor, the Servicer,
the Master Servicer, the Securities Administrator, the Trustee and the Trust as
follows:
(a) Representations and Warranties. The Transferee represents and warrants:
(1) The Transferee is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which the Transferee is organized, is
authorized to invest in the Purchased Securities and to enter into this
Agreement, and has duly executed and delivered this Agreement.
(2) The Transferee is acquiring the Purchased Securities for its own
account as principal and not with a view to the distribution of the Purchased
Securities, in whole or in part, in violation of Section 5 of the Securities Act
of 1933, as amended (the "Act").
(3) The Transferee is an "Accredited Investor" as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Act.
I-1
(4) The Transferee has knowledge in financial and business matters and is
capable of evaluating the merits and risks of an investment in the Purchased
Securities; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risk of an investment in the Purchased
Securities and can afford a complete loss of such investment;
(5) The Transferee confirms that the Depositor has made available to the
Transferee the opportunity to ask questions of, and receive answers from, the
Depositor concerning the Depositor, the Trust, the purchase by the Transferee of
the Purchased Securities and all matters relating thereto, and to obtain
additional information relating thereto that the Depositor possesses or can
acquire without unreasonable effort or expense.
(b) Covenants. The Transferee covenants:
(1) The Transferee will not make a public offering of the Purchased
Securities, and will not reoffer or resell the Purchased Securities in a manner
that would render the issuance and sale of the Purchased Securities, whether
considered together with the resale or otherwise, a violation of the Act, or any
state securities or "Blue Sky" laws or require registration pursuant thereto;
(2) The Transferee agrees that, in its capacity as holder of the Purchased
Securities, it will assert no claim or interest in the Mortgage Loans by reason
of owning the Purchased Securities other than with respect to amounts that may
be properly and actually payable to the Transferee pursuant to the terms of the
Pooling and Servicing Agreement and the securities; and
(3) If applicable, the Transferee will comply in all material respects with
respect to the Purchased Securities with applicable regulatory guidelines
relating to the ownership of mortgage derivative products.
(c) Transfer Restrictions.
(1) The Transferee understands that the Purchased Securities have not been
registered under the Act or registered or qualified under any state securities
laws and that no transfer may be made unless the Purchased Securities are
registered under the Act and under applicable state law or unless an exemption
from such registration is available. If so requested by the Servicer or the
Trustee, the Transferee and the transferor shall certify to the Depositor, the
Servicer and the Trustee as to the factual basis for the registration or
qualification exemption relied upon. The Transferee further understands that
neither the Depositor, the Servicer, the Trustee nor the Trust is under any
obligation to register the Purchased Securities or make an exemption from such
registration available.
I-2
(2) Any Securityholder desiring to effect a transfer shall, and does hereby
agree to, indemnify the Depositor, the Servicer and the Trustee against any
liability that may result if the transfer is not exempt under federal or
applicable state securities laws.
(3) The transfer of the Securities may be subject to additional
restrictions, as set forth in Section 11.2 of the Pooling and Servicing
Agreement.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of [ - ], by and among Xxxxx Asset Securitization, Inc., as Depositor,
Maia Mortgage Finance Statutory Trust, as Seller, ________________, as Trustee,
________________, as Servicer, and ________________, as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator"), pursuant to which the Purchased Securities were issued.
IN WITNESS WHEREOF, the undersigned has caused this Investment Letter to be
executed by its duly authorized representative as of the day and year first
above written.
[TRANSFEREE]
By:
--------------------------------------
Name:
Title:
I-3
EXHIBIT I-2
FORM OF RULE 144A INVESTMENT LETTER
LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
CLASS [_]
_________
(DATE)
Xxxxx Asset Securitization, Inc., as Depositor
________________, as Servicer
________________
________________
Attention: ________________
________________, as Trustee
________________
________________
Attention: ________________
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the captioned
securities (the "Purchased Certificates"), the undersigned (the "Transferee")
hereby certifies and covenants to the transferor, Xxxxx Asset Securitization,
Inc., the Servicer, the Master Servicer, the Securities Administrator, the
Trustee and the Trust as follows:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act") and has completed the form of certification to that
effect attached hereto as Annex A1 (if the Transferee is not a registered
investment company) or Annex A2 (if the Transferee is a registered investment
company). The Transferee is aware that the sale to it is being made in reliance
on Rule 144A.
2. The Transferee understands that the Purchased Certificates have not been
registered under the 1933 Act or registered or qualified under any state
securities laws and that no transfer may be made unless the Purchased
Certificates are registered under the 1933 Act and under applicable state law or
unless an exemption from such registration is available. The Transferee further
understands that neither Xxxxx Asset Securitization, Inc., the Servicer, the
Master Servicer, the Securities Administrator, the Trustee nor the Trust is
under any obligation to register the Purchased Certificates or make an exemption
from such registration available.
I-2-1
3. The Transferee is acquiring the Purchased Certificates for its own
account or for the account of a "qualified institutional buyer" (as defined in
Rule 144A, a "QIB"), and understands that such Purchased Certificates may be
resold, pledged or transferred only (a) to a person reasonably believed to be
such a QIB that purchases for its own account or for the account of a QIB to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from registration
under the 1933 Act and under applicable state securities laws. In addition, such
transfer may be subject to additional restrictions, as set forth in Section 11.2
of the Pooling and Servicing Agreement. By its execution of this agreement, the
Transferee agrees that it will not resell, pledge or transfer any of the
Purchased Certificates to anyone otherwise than in strict compliance with Rule
144A, or pursuant to another exemption from registration under the 1933 Act and
all applicable state securities laws, and in strict compliance with the transfer
restrictions set forth in Section 11.2 of the Pooling and Servicing Agreement.
The Transferee will not attempt to transfer any or all of the Purchased
Certificates pursuant to Rule 144A unless the Transferee offers and sells such
Certificates only to QIBs or to offerees or purchasers that the Transferee and
any person acting on behalf of the Transferee reasonably believe (as described
in paragraph (d)(l) of Rule 144A) is a QIB.
4. The Transferee has been furnished with all information that it requested
regarding (a) the Purchased Certificates and distributions thereon and (b) the
Pooling and Servicing Agreement referred to below.
5. If applicable, the Transferee has complied, will comply in all material
respects with applicable regulatory guidelines relating to the ownership of
mortgage derivative products.
All capitalized terms used but not otherwise defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of [ - ], by and among Xxxxx Asset Securitization, Inc., as Depositor,
Maia Mortgage Finance Statutory Trust, as Seller, _________, as Trustee,
________, as Servicer, and _______________, as master servicer (the "Master
Servicer") and as securities administrator (the "Securities Administrator")
pursuant to which the Purchased Certificates were issued.
IN WITNESS WHEREOF, the undersigned has caused this Rule 144A Letter to be
executed by its duly authorized representative as of the day and year first
above written.
[TRANSFEREE]
By:
--------------------------------------
Name:
Title:
I-2-2
ANNEX A1 TO EXHIBIT I-2
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Transferee.
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because (a) the Transferee owned and/or invested on
a discretionary basis at least $____________ in securities [Note to reviewer -
the amount in the previous blank must be at least $100,000,000 unless the
Transferee is a dealer, in which case the amount filled in the previous blank
must be at least $10,000,000.] (except for the excluded securities referred to
in paragraph 3 below) as of _______________ [specify a date on or since the end
of the Transferee's most recently ended fiscal year] (such amount being
calculated in accordance with Rule 144A) and (b) the Transferee meets the
criteria listed in the category marked below.
_____ Corporation, etc. The Transferee is an organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended,
a corporation (other than a bank as defined in Section 3(a)(2) of
the 1933 Act or a savings and loan association or other similar
institution referenced in Section 3(a)(5)(A) of the Act), a
partnership, or a Massachusetts or similar business trust.
_____ Bank. The Transferee (a) is a national bank or banking institution
as defined in Section 3(a)(2) of the 1933 Act and is organized under
the laws of a state, territory or the District of Columbia. The
business of the Transferee is substantially confined to banking and
is supervised by the appropriate state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements as of a date not more than 16 months preceding the date
of this certification in the case of a U.S. bank, and not more than
eighteen months preceding the date of this certification in the case
of a foreign bank or equivalent institution, a copy of which
financial statements is attached hereto.
_____ Savings and Loan. The Transferee is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution referenced in Section 3(a)(5)(A)
of the 1933 Act. The Transferee is supervised and examined by a
state or federal authority having supervisory authority over any
such institutions or is a foreign savings and loan association or
equivalent institution and has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements as of a date not more than 16 months preceding the date
of this certification in the case of a U.S. savings and loan
association or similar institution, and not more than eighteen
months preceding the date of this certification in the case of a
foreign savings and loan association or equivalent institution, a
copy of which financial statements is attached hereto.
I-2-3
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Certificates Exchange Act of 1934, as amended (the
"1934 Act").
_____ Insurance Company. The Transferee is an insurance company as defined
in Section 2(13) of the 1933 Act, whose primary and predominant
business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or
agency of a state, territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Certificate Act
of 1974, as amended.
_____ Investment Adviser. The Transferee is an investment adviser
registered under the Investment Advisers Act of 1940, as amended.
_____ Other. The Transferee qualifies as a "qualified institutional buyer"
as defined in Rule 144A on the basis of facts other than those
listed in any of the entries above. If this response is marked, the
Transferee must certify on additional pages, to be attached to this
certification, to facts that satisfy the Servicer that the
Transferee is a "qualified institutional buyer" as defined in Rule
144A.
3. The term "securities" as used herein does not include (a) securities of
issuers that are affiliated with the Transferee, (b) securities constituting the
whole or part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (c) bank deposit notes and certificates of deposit,
(d) loan participations, (e) repurchase agreements, (f) securities owned but
subject to a repurchase agreement and (g) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee and did not include any of the
securities referred to in the preceding paragraph. Further, in determining such
aggregate amount, the Transferee may have included securities owned by
subsidiaries of the Transferee, but only if such subsidiaries are consolidated
with the Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a reporting
company under the 1934 Act.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Purchased
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be made in reliance on Rule
144A.
I-2-4
6. Will the Transferee be purchasing _____ _____
the Purchased Certificates only YES NO
for the Transferee's own account?
If the answer to the foregoing question is "NO", the Transferee agrees
that, in connection with any purchase of securities sold to the Transferee for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Transferee will only purchase for the account of a third party
that at the time is a "qualified institutional buyer" within the meaning of Rule
144A. In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently meets
the definition of "qualified institutional buyer" set forth in Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Purchased
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized representative this ____ day of ___________,
______.
Print Name of Transferee
By:
-----------------------------------
I-2-5
ANNEX A2 TO EXHIBIT I-2
REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the entity purchasing the Purchased
Certificates (the "Transferee") or, if the Transferee is part of a Family of
Investment Companies (as defined in paragraph 3 below), is an officer of the
related investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"), because (a) the Transferee is an investment company
(a "Registered Investment Company") registered under the Investment Company Act
of 1940, as amended (the "1940 Act") and (b) as marked below, the Transferee
alone, or the Transferee's Family of Investment Companies, owned at least
$___________ [Note to reviewer - the amount in the previous blank must be at
least $100,000,000] in securities (other than the excluded securities referred
to in paragraph 4 below) as of ________________ [specify a date on or since the
end of the Transferee's most recently ended fiscal year]. For purposes of
determining the amount of securities owned by the Transferee or the Transferee's
Family of Investment Companies, the cost of such securities to the Transferee or
the Transferee's Family of Investment Companies was used.
____ The Transferee owned $____________ in securities (other than the
excluded securities referred to in paragraph 4 below) as of the end of
the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $____________ in securities (other than the excluded
securities referred to in paragraph 4 below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more Registered Investment Companies except for a unit investment trust whose
assets consist solely of shares of one or more Registered Investment Companies
(provided that each series of a "series company," as defined in Rule 18f-2 under
the 1940 Act, shall be deemed to be a separate investment company) that have the
same investment adviser (or, in the case of a unit investment trust, the same
depositor) or investment advisers (or depositors) that are affiliated (by virtue
of being majority-owned subsidiaries of the same parent or because one
investment adviser is a majority-owned subsidiary of the other).
4. The term "securities" as used herein does not include (a) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (b) bank deposit notes and certificates of
deposit, (c) loan participations, (d) repurchase agreements, (e) securities
owned but subject to a repurchase agreement and (f) currency, interest rate and
commodity swaps.
I-2-6
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Purchased Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed by its duly authorized representative this ____ of _________, ______.
[Print Name of Transferee or Adviser]
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
[Print Name of Transferee]
Date:
-------------------------------
I-2-7
EXHIBIT J
FORM OF BENEFIT PLAN AFFIDAVIT
Re: LUMINENT MORTGAGE TRUST 200_-_
MORTGAGE-BACKED CERTIFICATES,
SERIES 200_-_
ERISA-RESTRICTED CERTIFICATES
STATE OF [_________] )
)ss:
COUNTY/CITY OF [_______] )
Under penalties of perjury, I, the undersigned, declare that, to the best
of my knowledge and belief, the following representations are true, correct, and
complete.
1. That I am a duly authorized officer of [Organization], a [State]
corporation (the "Purchaser"), whose taxpayer identification number is
[____________], and on behalf of which I have the authority to make this
affidavit.
2. That the Purchaser is acquiring any of the ERISA-Restricted
Certificates, each representing an interest in the Trust Fund, for certain
assets of which one or more real estate mortgage investment conduit
("REMIC") elections are to be made under Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code").
3. The Purchaser either:
(i) is not an employee benefit plan or arrangement including an,
collective investment fund (or insurance company general account) or
individual retirement account that is subject to title I of ERISA, the
Code or a governmental plan (as defined in section 3(32) of ERISA)
church plan (as defined in section 3(33) of ERISA) or other employee
benefit plan or retirement arrangement that is subject to any federal,
state or local law which is substantially similar to the foregoing
provisions of ERISA or the Code ("Similar Law") (each, a "Plan") or to
any Person acting directly or indirectly on behalf of a Plan or using
the assets of a Plan, nor a person acting on behalf of any such Plan,
nor using the assets of any such Plan to effect such transfer;
(ii) in case of an ERISA-Restricted Certificate other than a
Class C, Class P or Residual Certificate, is an insurance company and
(A) the Purchaser is acquiring the Certificates with funds held in an
"insurance company general account" (as defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60"), as
published in 60 Fed. Reg. 35925 (July 12, 1995)) and (B) and all of
the requirements of PTCE 95-60 are met to exempt the acquisition and
holding of the Certificates and the transactions in connection with
the
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servicing, management and operation of the Trust Fund from the
prohibited transaction rules of ERISA and the Code; or
(iii) in the case of an ERISA-Restricted Certificate other than a
Residual Certificate, has provided an Opinion of Counsel obtained at
the Transferee's expense, satisfactory to the Securities
Administrator. An Opinion of Counsel with respect to this Benefit Plan
Affidavit is an opinion of counsel to the effect that the proposed
transfer will not (a) result in the assets of the Trust Fund being
deemed to be assets of a Plan, (b) give rise to a fiduciary duty under
ERISA, on the part of the transferee, the Depositor, the Servicer, the
Master Servicer, the Sponsor or the Securities Administrator, or (c)
be treated as, or result in, a prohibited transaction under ERISA or
Section 4975 of the Code or any violation of Similar Law.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Pooling and Servicing Agreement, dated as
of _______________, by and among Xxxxx Asset Securitization, Inc., as Depositor,
Maia Mortgage Finance Statutory Trust, as Seller, _______________, as Trustee,
_______________, as Servicer and _______________, as master servicer (the
"Master Servicer") and as securities administrator (the "Securities
Administrator").
[SIGNATURE PAGE FOLLOWS]
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[Purchaser]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT K
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 11.2
Luminent Mortgage Trust 200_-_ (the "Trust")
Mortgage-Backed Certificates, Series 200_-_
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 (the "Transferee") of the Class [R][RX] Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated _______, 200_ (the "Agreement"), among Xxxxx Asset Securitization, Inc.,
as Depositor, Maia Mortgage Finance Statutory Trust, as Seller, [__________], as
Servicer, [__________ ] as Securities Administrator and Master Servicer, and
[__________ ], as Trustee. Capitalized terms used but not defined herein 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 the Residual
Certificate either (i) for its own account or (ii) as nominee, trustee or agent
for another Person who is a Permitted Transferee 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 Residual 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, other than in the case of an "electing large partnership"
under Section 775 of the Code, 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
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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 11.2(f) of the
Agreement and understands the legal consequences of the acquisition of the
Residual 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 11.2(f) 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 in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual 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 the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due,
and it intends to do so in the future.
8. 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 Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is (i) a U.S. Person as defined in Code Section
7701(a)(30) or (ii) (A) the Transferee holds the Residual Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Trustee with an effective Internal Revenue
Service Form W-8ECI (or successor thereto) or (B) the Transferee has delivered
to both the transferor and the Trustee an Opinion of Counsel from a
nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of the Residual Certificate will not be
disregarded for federal income tax purposes.
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
K-2
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
15. The Transferee understands that it may incur tax liabilities with
respect to the Residual Certificate in excess of cash flows generated thereby.
16. The Transferee intends to pay taxes associated with holding the
Residual Certificate as such taxes become due.
* * *
K-3
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 this _____ day of ________________, ____.
________________________________________
Print Name of Transferee
By
-------------------------------------
Name:
Title:
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 ___________________, ____
________________________________________
NOTARY PUBLIC
My Commission expires the ____ day
of ________, _____.
K-4
SCHEDULE A
MORTGAGE LOAN SCHEDULE
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SCHEDULE B
With respect to each Assignment Agreement, the Seller hereby makes the
representation that with respect to each representation and warranty with
respect to any Mortgage Loan made by the related Originator that is made as of
[___] no event has occurred in respect of the Mortgage Loans since such date
that would render such representations and warranties to be untrue in any
material respect as of the Closing Date.
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SCHEDULE C
LIBOR CALCULATION
With respect to each Distribution Date, one-month LIBOR will equal the
interbank offered rate for one-month United States dollar deposits in the London
market as quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the
second LIBOR Business Day prior to the first day of the related Interest Accrual
Period. Telerate Page 3750 means the display designated as page 3750 on the
Bridge Telerate, or any other page as may replace page 3750 on that service for
the purpose of displaying London interbank offered rates of major banks. If the
rate does not appear on the page or any other page as may replace that page on
that service (or if that service is no longer offered, any other service for
displaying LIBOR or comparable rates as may be selected by the Securities
Administrator after consultation with the Depositor), the rate will be the
reference bank rate.
The reference bank rate will be determined on the basis of the rates at
which deposits in U.S. Dollars are offered by the reference banks, which shall
be three major banks that are engaged in transactions in the London interbank
market, selected by the Securities Administrator after consultation with the
Depositor, as of 11:00 A.M., London time, on the day that is two LIBOR Business
Days prior to the first day of the related Interest Accrual Period to prime
banks in the London interbank market for a period of one month in amounts
approximately equal to the aggregate Certificate Principal Balances of the
Certificates. The Securities Administrator will request the principal London
office of each of the reference banks to provide a quotation of its rate. If at
least two quotations are provided, the rate will be the arithmetic mean of the
quotations. If on the related date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean of the rates quoted by one or
more major banks in New York City, selected by the Securities Administrator
after consultation with the Depositor, as of 11:00 A.M., New York City time, on
the date for loans in U.S. Dollars to leading European banks for a period of one
month in amounts approximately equal to the aggregate Certificate Principal
Balances of the Certificates. If no quotations can be obtained, the rate will be
one-month LIBOR for the prior Distribution Date.
"LIBOR Business Day" means any day other than a Saturday or a Sunday or a
day on which banking institutions in the city of London, England are required or
authorized by law to be closed.
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