BNP PARIBAS MORTGAGE SECURITIES LLC Depositor, [NAME OF MASTER SERVICER] Master Servicer, and [NAME OF TRUSTEE], Trustee POOLING AND SERVICING AGREEMENT Dated as of_____________1, 200_ Mortgage Pass-Through Certificates Series 200_-__
EXHIBIT
4.1
Depositor,
[NAME
OF
MASTER SERVICER]
Master
Servicer,
and
[NAME
OF
TRUSTEE],
Trustee
Dated
as
of_____________1, 200_
Mortgage
Pass-Through Certificates
Series
200_-__
TABLE
OF
CONTENTS
|
ARTICLE
I
DEFINITIONS
|
||
|
SECTION
1.01.
|
Defined
Terms.
|
2
|
|
ARTICLE
II
|
||
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
||
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans.
|
24
|
|
SECTION
2.02.
|
Acceptance
of the Trust Fund by the Trustee.
|
26
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Master Servicer and the
Depositor.
|
28
|
|
SECTION
2.04.
|
Representations
and Warranties of the Seller; Repurchase and Substitution.
|
30
|
|
SECTION
2.05.
|
Issuance
of Certificates Evidencing Interests in the Trust Fund.
|
32
|
|
SECTION
2.06.
|
Purposes
and Powers of the Trust.
|
32
|
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE TRUST FUND
|
||
|
SECTION
3.01.
|
Master
Servicer to Act as Master Servicer.
|
34
|
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between Master Servicer and Sub- Servicers.
|
35
|
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
36
|
|
SECTION
3.04.
|
Liability
of the Master Servicer.
|
36
|
|
SECTION
3.05.
|
No
Contractual Relationship Between Sub-Servicers and Trustee or
Certificateholders.
|
36
|
|
SECTION
3.06.
|
Assumption
or Termination of Sub-Servicing Agreements by Trustee.
|
36
|
|
SECTION
3.07.
|
Collection
of Certain Mortgage Loan Payments.
|
37
|
|
SECTION
3.08.
|
Sub-Servicing
Accounts.
|
37
|
|
SECTION
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
38
|
|
SECTION
3.10.
|
Custodial
Account.
|
38
|
|
SECTION
3.11.
|
Permitted
Withdrawals From the Custodial Account.
|
39
|
|
SECTION
3.12.
|
Permitted
Instruments.
|
41
|
|
SECTION
3.13.
|
Maintenance
of Primary Mortgage Insurance and Primary Hazard
Insurance.
|
41
|
|
SECTION
3.14.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
|
43
|
|
SECTION
3.15.
|
Realization
Upon Defaulted Mortgage Loans.
|
44
|
|
SECTION
3.16.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
44
|
-i-
|
SECTION
3.17.
|
Servicing
Compensation.
|
46
|
|
SECTION
3.18.
|
Maintenance
of Certain Servicing Policies.
|
46
|
|
SECTION
3.19.
|
Annual
Statement as to Compliance.
|
47
|
|
SECTION
3.20.
|
Assessments
of Compliance and Attestation Reports.
|
47
|
|
SECTION
3.21.
|
Access
to Certain Documentation.
|
49
|
|
SECTION
3.22.
|
Title,
Conservation and Disposition of REO Property.
|
49
|
|
SECTION
3.23.
|
Additional
Obligations of the Master Servicer.
|
52
|
|
SECTION
3.24.
|
Additional
Obligations of the Depositor.
|
52
|
|
SECTION
3.25.
|
Intention
of the Parties and Interpretation.
|
52
|
|
ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS
|
||
|
SECTION
4.01.
|
Certificate
Account; Distributions.
|
53
|
|
SECTION
4.02.
|
Statements
to Certificateholders.
|
56
|
|
SECTION
4.03.
|
Remittance
Reports; Advances by the Master Servicer.
|
58
|
|
SECTION
4.04.
|
Allocation
of Realized Losses.
|
60
|
|
SECTION
4.05.
|
Information
Reports to be Filed by the Master Servicer.
|
60
|
|
SECTION
4.06.
|
Compliance
with Withholding Requirements.
|
61
|
|
ARTICLE
V
THE
CERTIFICATES
|
||
|
SECTION
5.01.
|
The
Certificates.
|
62
|
|
SECTION
5.02.
|
Registration
of Transfer and Exchange of Certificates.
|
63
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
66
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
67
|
|
ARTICLE
VI
THE
DEPOSITOR
AND THE MASTER SERVICER
|
||
|
SECTION
6.01.
|
Liability
of the Depositor and the Master Servicer.
|
68
|
|
SECTION
6.02.
|
Merger,
Consolidation or Conversion of the Depositor or the Master
Servicer.
|
68
|
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Master Servicer and
Others.
|
68
|
|
SECTION
6.04.
|
Limitation
on Resignation of the Master Servicer.
|
69
|
|
ARTICLE
VII
DEFAULT
|
||
|
SECTION
7.01.
|
Events
of Default.
|
70
|
|
SECTION
7.02.
|
Trustee
to Act; Appointment of Successor.
|
72
|
-ii-
|
SECTION
7.03.
|
Notification
to Certificateholders.
|
72
|
|
SECTION
7.04.
|
Waiver
of Events of Default.
|
73
|
|
ARTICLE
VIII
CONCERNING
THE TRUSTEE
|
||
|
SECTION
8.01.
|
Duties
of Trustee.
|
74
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
75
|
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
76
|
|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
76
|
|
SECTION
8.05.
|
Payment
of Trustee’s Fees.
|
76
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
77
|
|
SECTION
8.07.
|
Resignation
and Removal of the Trustee.
|
77
|
|
SECTION
8.08.
|
Successor
Trustee.
|
78
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
78
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
79
|
|
SECTION
8.11.
|
Commission
Reporting.
|
80
|
|
ARTICLE
IX
TERMINATION
|
||
|
SECTION
9.01.
|
Termination
Upon Repurchase or Liquidation of All Mortgage Loans.
|
85
|
|
SECTION
9.02.
|
Additional
Termination Requirements.
|
86
|
|
ARTICLE
X
REMIC
PROVISIONS
|
||
|
SECTION
10.01.
|
REMIC
Administration.
|
88
|
|
SECTION
10.02.
|
Prohibited
Transactions and Activities.
|
90
|
|
SECTION
10.03.
|
Master
Servicer and Trustee Indemnification.
|
91
|
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
||
|
SECTION
11.01.
|
Amendment.
|
92
|
|
SECTION
11.02.
|
Recordation
of Agreement; Counterparts.
|
93
|
|
SECTION
11.03.
|
Limitation
on Rights of Certificateholders.
|
93
|
|
SECTION
11.04.
|
Governing
Law.
|
94
|
|
SECTION
11.05.
|
Notices.
|
94
|
|
SECTION
11.06.
|
Severability
of Provisions.
|
95
|
|
SECTION
11.07.
|
Successors
and Assigns; Third Party Beneficiary.
|
95
|
|
SECTION
11.08.
|
Article
and Section Headings.
|
95
|
|
SECTION
11.09.
|
Notice
to Rating Agencies and Certificateholder.
|
95
|
-iii-
|
Exhibit
A-1
|
Form
of Class A Certificate
|
|
Exhibit
A-2
|
Form
of Class B Certificate
|
|
Exhibit
B
|
Form
of Class R Certificate
|
|
Exhibit
C
|
Form
of Trustee Initial Certification
|
|
Exhibit
D
|
Form
of Trustee Final Certification
|
|
Exhibit
E
|
Form
of Remittance Report
|
|
Exhibit
F-1
|
Request
for Release
|
|
Exhibit
F-2
|
Request
for Release for Mortgage Loans Paid in Full
|
|
Exhibit
G-1
|
Form
of Investor Representation Letter
|
|
Exhibit
G-2
|
Form
of Transferor Representation Letter
|
|
Exhibit
G-3
|
Transferor
Affidavit and Agreement in connection with transfer of Residual
Certificates
|
|
Exhibit
G-4
|
Form
of Transferor Certificate
|
|
Exhibit
G-5
|
Form
of Investor Representation Letter for Insurance
Companies
|
|
Exhibit
H
|
Mortgage
Loan Schedule
|
|
Exhibit
I
|
Seller’s
Warranty Certificate
|
|
Exhibit
J
|
Form
of Notice Under Section 3.24
|
|
Exhibit
K
|
Form
of Depositor Certification
|
|
Exhibit
L
|
Form
of Trustee Certification
|
|
Exhibit
M
|
Form
of Servicer Certification
|
|
Exhibit
N
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
CC
|
Servicing
Criteria to be Addressed in Assessment of
Compliance
|
-iv-
This
Pooling and Servicing Agreement, effective as of _______________ 1, 200_, among
BNP PARIBAS MORTGAGE SECURITIES LLC, as the depositor (together with its
permitted successors and assigns, the “Depositor”), [NAME OF MASTER SERVICER],
as master servicer (together with its permitted successors and assigns, the
“Master Servicer”), and [NAME OF TRUSTEE], as trustee (together with its
permitted successors and assigns, the “Trustee”),
PRELIMINARY
STATEMENT:
The
Depositor intends to sell mortgage pass-through certificates (collectively,
the
“Certificates”), to be issued hereunder in multiple classes (each, a “Class”),
which in the aggregate will evidence the entire beneficial ownership interest
in
the Mortgage Loans (as defined herein). As provided herein, the Master Servicer
will make an election to treat the segregated pool of assets described in the
definition of Trust Fund (as defined herein), and subject to this Agreement
(including the Mortgage Loans but excluding the Initial Monthly Payment
Deposit), as a real estate mortgage investment conduit (a “REMIC”) for federal
income tax purposes, and such segregated pool of assets will be designated
as
the “Trust Fund.” The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class A-7 and Class B Certificates will represent ownership of
“regular interests” in the Trust Fund, and the Class R Certificates will be the
sole class of “residual interests” therein, for purposes of the REMIC Provisions
(as defined herein) under federal income tax law.
The
following table sets forth the designation, type, Pass-Through Rate, aggregate
Initial Certificate Principal Balance, initial ratings and certain features
for
each Class of Certificates comprising the interests in the Trust Fund created
hereunder.
AGGREGATE
INITIAL PASS-CERTIFICATE
INITIAL
RATINGS THROUGH PRINCIPAL DESCRIPTION TYPE
RATE
BALANCE FEATURES
[INSERT
TABLE HERE]
The
Mortgage Loans have an aggregate Stated Principal Balance as of the Cut-off
Date
equal to $___________. The Mortgage Loans are fixed rate mortgage loans having
terms to maturity at origination or modification of not more than 30
years.
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer and the Trustee agree as follows:
ARTICLE
I
DEFINITIONS
|
SECTION
1.01.
|
Defined
Terms.
|
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this
Article.
“Accrued
Certificate Interest”: With respect to each Distribution Date, as to any Class A
Certificate (other than the Class A-5 Certificates and Class A-7 Certificates)
or any Class B Certificate, one month’s interest accrued at the then applicable
Pass-Through Rate on the Certificate Principal Balance thereof immediately
prior
to such Distribution Date. With respect to each Distribution Date, as to the
Class A-5 Certificates and Class A-7 Certificates, one month’s interest accrued
at the then applicable Pass-Through Rate on the Notional Amount thereof
immediately prior to such Distribution Date. Accrued Certificate Interest will
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
In each case Accrued Certificate Interest on any Class of Certificates will
be
reduced by the amount of (i) Prepayment Interest Shortfalls, if any, which
are
not covered by payments by the Master Servicer pursuant to Section 3.23 with
respect to such Distribution Date, (ii) the interest portion (adjusted to the
related Net Mortgage Rate) of any of Realized Losses (including Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses and Extraordinary
Losses) not allocated solely to one or more specific Classes of Certificates
pursuant to Section 4.04 (which, with respect to the pro rata portion thereof
allocated to the Class A-1, Class A-5 and Class A-6 Certificates will be
allocated first to the Class A-6 Certificates and second to the Class A-1 and
Class A-5 Certificates on a pro rata basis to the extent such Realized Losses
are Default Losses), (iii) the interest portion of Advances previously made
with
respect to a Mortgage Loan or REO Property which remained unreimbursed following
the Cash Liquidation or REO Disposition of such Mortgage Loan or REO Property
that was made with respect to delinquencies that were ultimately determined
to
be Excess Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses
or Extraordinary Losses, and (iv) any other interest shortfalls not covered
by
the subordination provided by the Class B Certificates pursuant to Section
4.04,
including interest that is not collectible from the Mortgagor pursuant to the
Relief Act or similar legislation or regulations as in effect from time to
time;
with all such reductions allocated among the Classes of Certificates, in
proportion to their respective amounts of Accrued Certificate Interest which
would have resulted absent such reductions. In addition to that portion of
the
reductions described in the preceding sentence, Accrued Certificate Interest
on
the Class B Certificates will be reduced by the interest portion (adjusted
to
the related Net Mortgage Rate) of Realized Losses that are allocated solely
to
the Class B Certificates pursuant to Section 4.04.
“Advance”:
As to any Mortgage Loan, any advance made by the Master Servicer on any
Distribution Date pursuant to Section 4.03.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof.
-2-
“Anniversary”:
Each anniversary of _____________ 1, 20__.
“Assessment
of Compliance”: As defined in Section 3.20.
“Attestation
Report”: As defined in Section 3.20.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the sale of
the
Mortgage, which assignment, notice of transfer or equivalent instrument may
be
in the form of one or more blanket assignments covering Mortgages secured by
Mortgaged Properties located in the same county, if permitted by
law.
“Assignment
Agreement”: The Assignment and Assumption Agreement, dated as of ____________,
200_, between [Name of Seller] and the Depositor relating to the transfer and
assignment of the Mortgage Loans.
“Available
Distribution Amount”: With respect to each Distribution Date, the Available
Distribution Amount will be an amount equal to (a) the sum of (i) the balance
on
deposit in the Custodial Account as of the close of business on the related
Determination Date and (ii) the aggregate amount of any Advances made, all
required amounts pursuant to Section 3.22 and all amounts required to be paid
by
the Master Servicer pursuant to Sections 3.13 and 3.23 by deposits into the
Certificate Account on the immediately preceding Certificate Account Deposit
Date, reduced by (b) the sum, as of the close of business on the related
Determination Date of (i) Monthly Payments collected but due during a Due Period
subsequent to the Due Period ending on the first day of the month of the related
Distribution Date, (ii) all interest or other income earned on deposits in
the
Custodial Account, (iii) any other amounts reimbursable or payable to the Master
Servicer or any other Person pursuant to Section 3.11, (iv) Insurance Proceeds,
Liquidation Proceeds, Principal Prepayments, REO Proceeds and the proceeds
of
Mortgage Loan purchases (or amounts received in connection with substitutions)
made pursuant to Section 2.02 and 2.04, in each case received or made in the
month of such Distribution Date and (v) the Trustee’s Fee.
“Bankruptcy
Amount”: As of any date of determination, an amount, equal to the excess, if
any, of (A) $_______, over (B) the aggregate amount of Bankruptcy Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 4.04.
The
Bankruptcy Amount may be further reduced by the Master Servicer (including
accelerating the manner in which such coverage is reduced) provided that prior
to any such reduction, the Master Servicer shall (i) obtain written confirmation
from each Rating Agency that such reduction shall not reduce the rating assigned
to any Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency and (ii) provide a copy of such written
confirmation to the Trustee.
“Bankruptcy
Code”: The United States Bankruptcy Code of 1978, as amended.
-3-
“Bankruptcy
Loss”: With respect to any Mortgage Loan, a Deficient Valuation or Debt Service
Reduction; provided, however, that a Deficient Valuation or a Debt Service
Reduction shall not be deemed a Bankruptcy Loss hereunder so long as the Master
Servicer has notified the Trustee in writing that the Master Servicer is
diligently pursuing any remedies that may exist in connection with the related
Mortgage Loan and either (A) the related Mortgage Loan is not in default with
regard to payments due thereunder or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any related escrow payments in
respect of such Mortgage Loan are being advanced on a current basis by the
Master Servicer, in either case without giving effect to any Deficient Valuation
or Debt Service Reduction.
“Business
Day”: Any day other than (i) a Saturday or a Sunday or (ii) a day on which
banking institutions in the State of ______________ or the State of
______________ (and such other state or states in which the Custodial Account
or
the Certificate Account are at the time located) are required or authorized
by
law or executive order to be closed.
“Cash
Liquidation”: As to any defaulted Mortgage Loan other than a Mortgage Loan as to
which an REO Acquisition occurred, the final receipt by or on behalf of the
Master Servicer of all Insurance Proceeds, Liquidation Proceeds and other
payments or cash recoveries which the Master Servicer reasonably and in good
faith expects to be finally recoverable with respect to such Mortgage
Loan.
“Certificate”:
Any Class A, Class B or Class R Certificate.
“Certificate
Account”: The account or accounts created and maintained pursuant to Section
4.01, which shall be entitled “___________________________________, as trustee,
in trust for the registered holders of BNP
Paribas Mortgage Securities
LLC,
Mortgage Pass-Through Certificates, Series 200_-__” and which must be an
Eligible Account.
“Certificate
Account Deposit Date”: The 20th day (or if such 20th day is not a Business Day,
the Business Day immediately preceding such 20th day) of the month.
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that, neither a Disqualified Organization nor
a
Non-United States Person shall be a Holder of a Class R Certificate for any
purposes hereof and, solely for the purposes of giving any consent pursuant
to
this Agreement, any Certificate registered in the name of the Depositor or
the
Master Servicer or any affiliate thereof shall be deemed not to be outstanding
and the Voting Rights to which it is entitled shall not be taken into account
in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent has been obtained, except as otherwise provided in
Section 11.01. The Trustee shall be entitled to rely upon a certification of
the
Depositor or the Master Servicer in determining if any Certificates are
registered in the name of a respective affiliate.
“Certificate
Owner”: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Certificate, as reflected on the books of an indirect
participating brokerage firm for which a Depositor Participant acts as agent,
if
any, and otherwise on the books of a Depositor Participant, if any, and
otherwise on the books of the Depositor.
-4-
“Certificate
Principal Balance”: With respect to each Class A Certificate (other than a Class
A-5 Certificate or Class A-7 Certificate), on any date of determination, an
amount equal to (i) the Initial Certificate Principal Balance of such
Certificate as specified on the face thereof, minus (ii) the sum of (x) the
aggregate of all amounts previously distributed with respect to such Certificate
(or any predecessor Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(b) and (y) the aggregate of all
reductions in Certificate Principal Balance deemed to have occurred in
connection with Realized Losses which were previously allocated to such
Certificate (or any predecessor Certificate) pursuant to Section 4.04. With
respect to the Class B Certificates, on any date of determination, an amount
equal to the Percentage Interest evidenced by such Certificate times the excess,
if any, of (A) the then aggregate Stated Principal Balance of the Mortgage
Loans
over (B) the then aggregate Certificate Principal Balance of all other Classes
of Certificates then outstanding. The Class A-5 Certificates, Class A-7
Certificates and Class R Certificates have no Certificate Principal
Balance.
“Certificate
Register”: The register maintained pursuant to Section 5.02.
“Class”:
Collectively, all of the Certificates bearing the same designation.
“Class
A
Certificate”: Any one of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class
A-5, Class A-6 or Class A-7 Certificates, executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed
hereto as Exhibit A-1, each such Certificate evidencing an interest designated
as a “regular interest” in the Trust Fund for purposes of the REMIC
Provisions.
“Class
B
Certificate”: The Class B Certificates executed by the Trustee and authenticated
by the Certificate Registrar substantially in the form annexed hereto as Exhibit
A-2 and evidencing an interest designated as a “regular interest” in the Trust
Fund for purposes of the REMIC Provisions.
“Class
B
Percentage”: With respect to any Distribution Date, the lesser of (i) 100% minus
the Senior Percentage and (ii) a fraction, expressed as a percentage, the
numerator of which is the aggregate Certificate Principal Balance of the Class
B
Certificates immediately prior to such date and the denominator of which is
the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related
REO
Properties) immediately prior to such Distribution Date.
“Class
R
Certificate”: Any one of the Class R Certificates executed and delivered by the
Trustee substantially in the form annexed hereto as Exhibit B and evidencing
an
interest designated as a “residual interest” in the REMIC for purposes of the
REMIC Provisions.
“Closing
Date” : _______________ ___, 20__.
“Code”:
The Internal Revenue Code of 1986.
“Collateral
Value”: The appraised value of a Mortgaged Property based upon the lesser of (i)
the appraisal made at the time of the origination of the related Mortgage Loan,
or (ii) the sales price of such Mortgaged Property at such time of origination.
With respect to a Mortgage Loan the proceeds of which were used to refinance
an
existing mortgage loan, the appraised value of the Mortgaged Property based
upon
the appraisal (as reviewed and approved by the Seller) obtained at the time
of
refinancing.
-5-
“Depositor”:
BNP Paribas Mortgage Securities LLC, or its successor in interest.
“Corporate
Trust Office”: The principal office of the Trustee at which at any particular
time its corporate trust business with respect to this Agreement shall be
administered, which office at the date of the execution of this instrument
is
located at _____________________, Attention: __________________ Series
200_-__.
“Credit
Support Depletion Date”: The first Distribution Date on which the Senior
Percentage equals 100%.
“Custodial
Account”: The custodial account or accounts created and maintained pursuant to
Section 3.10 in a depository institution, as custodian for the holders of the
Certificates, for the holders of certain other interests in mortgage loans
serviced or sold by the Master Servicer and for the Master Servicer, into which
the amounts set forth in Section 3.10 shall be deposited directly. Any such
account or accounts shall be an Eligible Account.
“Cut-off
Date”: _____________ 1, 200_.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
“Default
Loss”: Any Realized Loss that is attributable to the related Mortgagor’s failure
to make any payment of principal or interest as required under the Mortgage
Note, excluding Special Hazard Losses (or any other loss resulting from damage
to a Mortgaged Property), Bankruptcy Losses, Fraud Losses, or other losses
of a
type not covered by the subordination provided by the Class B Certificates
pursuant to Section 4.04.
“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, which valuation results from
a
proceeding initiated by the Mortgagor under the Bankruptcy Code.
“Definitive
Certificate”: Any definitive, fully registered Certificate.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced with a Qualified
Substitute Mortgage Loan.
“Determination
Date”: The 15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Distribution
Date.
-6-
“Disqualified
Organization”: Any of the following: (i) the United States, any State or any
political subdivision thereof, any possession of the United States or any agency
or instrumentality of any of the foregoing (other than an instrumentality which
is a corporation, if all of its activities are subject to tax and, except for
the ▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by any
such governmental unit), (ii) a foreign government, international organization
or any agency or instrumentality of either the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person
so
designated by the Trustee based on an Opinion of Counsel obtained by the
Trustee, at the expense of the Trust Fund, (which opinion shall be sought only
if the Trustee has actual knowledge that the holding of an Ownership Interest
in
a Class R Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest
in
a Class R Certificate to such Person). The terms “United States,” “State” and
“international organization” shall have the meanings set forth in Section 7701
of the Code or successor provisions.
“Distribution
Date”: The 25th day of any month, or if such 25th day is not a Business Day, the
Business Day immediately following such 25th day commencing on _______ 25,
20__.
“Due
Date”: The first day of the month of the related Distribution Date.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month of such Distribution Date (or,
with
respect to the first Due Period, the day following the Cut-off Date) and ending
on the related Due Date.
“Eligible
Account”: An account maintained with a federal or state chartered depository
institution (i) the short-term obligations of which are rated by each of the
Rating Agencies in its highest rating at the time of any deposit therein, or
(ii) insured by the FDIC (to the limits established by such Corporation), the
uninsured deposits in which account are otherwise secured such that, as
evidenced by an Opinion of Counsel (obtained by and at the expense of the Person
requesting that the account be held pursuant to this clause (ii)) delivered
to
the Trustee prior to the establishment of such account, the Certificateholders
will have a claim with respect to the funds in such account and a perfected
first priority security interest against any collateral (which shall be limited
to Permitted Instruments, each of which shall mature not later than the Business
Day immediately preceding the Distribution Date next following the date of
investment in such collateral or the Distribution Date if such Permitted
Instrument is an obligation of the institution that maintains the Certificate
Account or Custodial Account) securing such funds that is superior to claims
of
any other depositors or general creditors of the depository institution with
which such account is maintained or (iii) a trust account or accounts maintained
with a federal or state chartered depository institution or trust company with
trust powers acting in its fiduciary capacity or (iv) an account or accounts
of
a depository institution acceptable to the Rating Agencies (as evidenced in
writing by the Rating Agencies that use of any such account as the Custodial
Account or the Certificate Account will not have an adverse effect on the
then-current ratings assigned to the Classes of the Certificates then rated
by
the Rating Agencies). Eligible Accounts may bear interest.
-7-
“Event
of
Default”: One or more of the events described in Section 7.01.
“Excess
Bankruptcy Loss”: Any Bankruptcy Loss, or portion thereof, which exceeds the
then applicable Bankruptcy Amount.
“Excess
Fraud Loss”: Any Fraud Loss, or portion thereof, which exceeds the then
applicable Fraud Loss Amount.
“Excess
Special Hazard Loss”: Any Special Hazard Loss, or portion thereof, that exceeds
the then applicable Special Hazard Amount.
“Extraordinary
Events”: Any of the following conditions with respect to a Mortgaged Property or
Mortgage Loan causing or resulting in a loss which causes the liquidation of
such Mortgage Loan:
(a) losses
that are of a type that would be covered by the fidelity bond and the errors
and
omissions insurance policy required to be maintained pursuant to Section 3.18
but are in excess of the coverage maintained thereunder;
(b) nuclear
reaction or nuclear radiation or radioactive contamination, all whether
controlled or uncontrolled, and whether such loss be direct or indirect,
proximate or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term “Special Hazard
Loss”;
(c) hostile
or warlike action in time of peace or war, including action in hindering,
combating or defending against an actual, impending or expected
attack:
1. by
any government or sovereign power, de jure or de facto, or by any authority
maintaining or using military, naval or air forces; or
2. by
military, naval or air forces; or
3. by
an agent of any such government, power, authority or forces;
(d) any
weapon of war employing atomic fission or radioactive force whether in time
of
peace or war; or
(e) insurrection,
rebellion, revolution, civil war, usurped power or action taken by governmental
authority in hindering, combating or defending against such an occurrence,
seizure or destruction under quarantine or customs regulations, confiscation
by
order of any government or public authority; or risks of contraband or illegal
transportation or trade.
-8-
“Extraordinary
Losses”: Any loss incurred on a Mortgage Loan caused by or resulting from an
Extraordinary Event.
“▇▇▇▇▇▇
▇▇▇”: Federal National Mortgage Association or any successor.
“FDIC”:
Federal Deposit Insurance Corporation or any successor.
[“Fitch”:
Fitch Ratings, or its successor in interest.]
“Fraud
Losses”: Any Realized Loss sustained by reason of a default arising from fraud,
dishonesty or misrepresentation in connection with the related Mortgage
Loan.
“Fraud
Loss Amount”: As of any date of determination after the Cut-off Date, an amount
equal to: (X) up to and including the [first] anniversary of the Cut-off Date
an
amount equal to ______% of the aggregate outstanding principal balance of all
of
the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated to the Class B Certificates in accordance with Section 4.04
since the Cut-off Date up to such date of determination, (Y) from the [first]
to
the fifth anniversary of the Cut-off Date, an amount equal to (1) the lesser
of
(a) the Fraud Loss Amount as of the most recent anniversary of the Cut-off
Date
and (b) ______% of the aggregate outstanding principal balance of all of the
Mortgage Loans as of the most recent anniversary of the Cut-off Date minus
(2)
the Fraud Losses allocated solely to the Class B Certificates in accordance
with
Section 4.04 since the most recent anniversary of the Cut-off Date up to such
date of determination. On and after the fifth anniversary of the Cutoff Date
the
Fraud Loss Amount shall be zero.
The
Fraud
Loss Amount may be further reduced by the Master Servicer (including
accelerating the manner in which such coverage is reduced) provided that prior
to any such reduction, the Master Servicer shall (i) obtain written confirmation
from each Rating Agency that such reduction shall not reduce the rating assigned
to any Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency and (ii) provide a copy of such written
confirmation to the Trustee.
“▇▇▇▇▇▇▇
Mac”: Federal Home Loan Mortgage Corporation or any successor.
“Funding
Date”: With respect to each Mortgage Loan, the date on which funds were advanced
by or on behalf of the Seller and interest began to accrue
thereunder.
“Initial
Certificate Principal Balance”: With respect to each Class of Certificates, the
Certificate Principal Balance of such Class of Certificates as of the Cut-off
Date as set forth in the Preliminary Statement hereto.
“Insurance
Policy”: With respect to any Mortgage Loan, any insurance policy which is
required to be maintained from time to time under this Agreement in respect
of
such Mortgage Loan.
-9-
“Insurance
Proceeds”: Proceeds paid by any insurer pursuant to the Primary Mortgage
Insurance Policy and any other insurance policy covering a Mortgage Loan to
the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the procedures that
the
Master Servicer would follow in servicing mortgage loans held for its own
account.
“Late
Collections”: With respect to any Mortgage Loan, all amounts received during any
Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments
or
collections of Monthly Payments due but delinquent for a previous Due Period
and
not previously recovered.
“Liquidation
Proceeds”: Amounts (other than Insurance Proceeds) received by the Master
Servicer in connection with the taking of an entire Mortgaged Property by
exercise of the power of eminent domain or condemnation or in connection with
the liquidation of a defaulted Mortgage Loan through trustee’s sale, foreclosure
sale or otherwise, other than amounts received in respect of REO
Property.
“Loan-to-Value
Ratio”: As of any date, the fraction, expressed as a percentage, the numerator
of which is the current principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Collateral Value
of
the related Mortgaged Property.
“Master
Servicer”: [Name of Master Servicer], or any successor master servicer appointed
as herein provided.
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by a Mortgagor
from time to time under the related Mortgage Note as originally executed (after
adjustment, if any, for Principal Prepayments and for Deficient Valuations
occurring prior to such Due Date, and after any adjustment by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period).
[“Moody’s”:
▇▇▇▇▇’▇ Investors Service, Inc. or its successor in interest.]
“Mortgage”:
The mortgage, deed of trust or any other instrument securing the Mortgage
Loan.
“Mortgage
File”: The mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement; provided, that whenever the term “Mortgage
File” is used to refer to documents actually received by the Trustee, such term
shall not be deemed to include such additional documents required to be added
unless they are actually so added.
“Mortgage
Loan”: Each of the mortgage loans, transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.03 and from time to time held in the
Trust
Fund, the Mortgage Loans originally so transferred, assigned and held being
identified in the Mortgage Loan Schedule attached hereto as Exhibit H (and
any
Qualified Substitute Mortgage Loans). As used herein, the term “Mortgage Loan”
includes the related Mortgage Note and Mortgage.
-10-
“Mortgage
Loan Schedule”: As of any date of determination, the schedule of Mortgage Loans
included in the Trust Fund. The initial schedule of Mortgage Loans with
accompanying information transferred on the Closing Date to the Trustee as
part
of the Trust Fund for the Certificates, attached hereto as Exhibit H (as amended
from time to time to reflect the addition of Qualified Substitute Mortgage
Loans) (and, for purposes of the Trustee’s review of the Mortgage Files pursuant
to Section 2.02, in computer-readable form as delivered to the Trustee), which
list shall set forth the following information, if applicable, with respect
to
each Mortgage Loan:
(i) the
loan
number and name of the Mortgagor;
(ii) ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ and zip code of the Mortgaged Property;
(iii) the
Mortgage Rate;
(iv) the
maturity date;
(v) the
original principal balance;
(vi) the
first
payment date;
(vii) the
type
of Mortgaged Property;
(viii) the
Monthly Payment in effect as of the Cut-off Date;
(ix) the
principal balance as of the Cut-off Date;
(x) the
occupancy status;
(xi) the
purpose of the Mortgage Loan;
(xii) the
Collateral Value of the Mortgaged Property;
(xiii) the
original term to maturity;
(xiv) the
paid-through date of the Mortgage Loan;
(xv) the
Loan-to-Value Ratio; and
(xvi) whether
or not the Mortgage Loan was underwritten pursuant to a limited documentation
program.
The
Mortgage Loan Schedule shall also set forth the total of the amounts described
under (ix) above for all of the Mortgage Loans. The Mortgage Loan Schedule
may
be in the form of more than one schedule, collectively setting forth all of
the
information required. With respect to any Qualified Substitute Mortgage Loan,
the item described in clauses (viii) shall be set forth as the date of
substitution.
-11-
“Mortgage
Note”: The note or other evidence of the indebtedness of a Mortgagor under a
Mortgage Loan.
“Mortgage
Rate”: With respect to any Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan. “Mortgaged Property”: The underlying property
securing a Mortgage Loan.
“Mortgagor”:
The obligor or obligors on a Mortgage Note.
“Net
Mortgage Rate”: As to each Mortgage Loan, a per annum rate of interest equal to
the related Mortgage Rate as in effect from time to time minus the sum of the
Servicing Fee Rate and the rate at which the Trustee’s Fee accrues.
“Nonrecoverable
Advance”: Any Advance previously made or proposed to be made in respect of a
Mortgage Loan which, in the good faith judgment of the Master Servicer, will
not
or, in the case of a proposed Advance, would not be ultimately recoverable
from
related Late Collections, Insurance Proceeds, Liquidation Proceeds, REO Proceeds
or amounts reimbursable to the Master Servicer pursuant to Section 4.01(b).
The
determination by the Master Servicer that it has made a Nonrecoverable Advance
or that any proposed Advance would constitute a Nonrecoverable Advance, shall
be
evidenced by an Officers’ Certificate delivered to the Depositor and the
Trustee.
“Non-United
States Person”: Any Person other than a United States Person.
“Notional
Amount”: As of any Distribution Date, with respect to the Class A-5 Certificates
and the Class A-7 Certificates, an amount equal to the aggregate Certificate
Principal Balance of all Classes of Certificates immediately prior to such
date.
“Officers’
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president and by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Master Servicer or of the Sub-Servicer and delivered to the Depositor and
Trustee.
“Opinion
of Counsel”: A written opinion of counsel, who may be counsel for the Depositor
or the Master Servicer, reasonably acceptable to the Trustee; except that any
opinion of counsel relating to (a) the qualification of any account required
to
be maintained pursuant to this Agreement as an Eligible Account, (b)
qualification of the Trust Fund as a REMIC, (c) compliance with the REMIC
Provisions or (d) resignation of the Master Servicer pursuant to Section 6.04
must be an opinion of counsel who (i) is in fact independent of the Depositor
and the Master Servicer, (ii) does not have any direct financial interest or
any
material indirect financial interest in the Depositor or the Master Servicer
or
in an affiliate of either and (iii) is not connected with the Depositor or
the
Master Servicer as an officer, employee, director or person performing similar
functions.
-12-
“Optimal
Percentage”: A fraction, expressed as a percentage, the numerator of which is
the Certificate Principal Balance of the Class A-1 Certificates immediately
prior to the applicable Distribution Date and the denominator of which is the
aggregate Certificate Principal Balance of all of the Class A Certificates
immediately prior to such Distribution Date.
“Optimal
Principal Distribution Amount”: An amount equal to the product of (i) the then
applicable Optimal Percentage and (ii) the Senior Principal Distribution
Amount.
“Original
Senior Percentage”: _______%, which is the fraction, expressed as a percentage,
the numerator of which is the aggregate Initial Certificate Principal Balance
of
the Class A Certificates and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans.
“OTS”:
Office of Thrift Supervision or any successor.
“Outstanding
Mortgage Loan”: As to any Due Date, a Mortgage Loan (including an REO Property)
which was not the subject of a Principal Prepayment in full, Cash Liquidation
or
REO Disposition and which was not purchased or substituted for prior to such
Due
Date pursuant to Sections 2.02 or 2.04.
“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
Rate”: With respect to the Class A Certificates (other than the Class A-7
Certificates) and Class B Certificates and any Distribution Date, the per annum
rate set forth in the Preliminary Statement hereto. With respect to the Class
A-7 Certificates and any Distribution Date, a rate equal to the weighted
average, expressed as a percentage, of the Pool Strip Rates of all Mortgage
Loans in the Trust Fund as of the Due Date in the month immediately preceding
the month in which such Distribution Date occurs, weighted on the basis of
the
respective Stated Principal Balances of such Mortgage Loans, which Stated
Principal Balances shall be the Stated Principal Balances of such Mortgage
Loans
at the close of business on the immediately preceding Distribution Date after
giving effect to the distributions thereon allocable to principal (or, in the
case of the initial Distribution Date, at the close of business on the Cut-off
Date). With respect to the Class A-7 Certificates and the initial Distribution
Date, the Pass-Through Rate is equal to ______% per annum.
“Percentage
Interest”: With respect to any Certificate (other than a Class A-5, Class A-7 or
Class R Certificate), the undivided percentage ownership interest in the related
Class evidenced by such Certificate, which percentage ownership interest shall
be equal to the initial Certificate Principal Balance thereof divided by the
aggregate Initial Certificate Principal Balance of all of the Certificates
of
the same Class. With respect to a Class A-5 or Class A-7 Certificate, the
undivided percentage ownership interest in the related Class evidenced by such
Certificate, which percentage ownership interest shall be equal to the initial
Notional Amount thereof divided by the aggregate initial Notional Amount of
all
of the Certificates of the same Class. With respect to a Class R Certificate,
the interest in distributions to be made with respect to such Class evidenced
thereby, expressed as a percentage, as stated on the face of each such
Certificate.
-13-
“Permitted
Instruments”: Any one or more of the following:
(xvii)
(a)
direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States and (b) direct obligations of, and obligations guaranteed
as
to timely payment by ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇ if, at the time of investment,
they are assigned the highest credit rating by the Rating Agencies;
(xviii) repurchase
obligations (the collateral for which is held by a third party or the Trustee)
with respect to any security described in clause (i) above, provided that the
short-term unsecured obligations of the party agreeing to repurchase such
obligations are at the time rated by each Rating Agency in one of its two
highest long-term rating categories;
(xix) certificates
of deposit, time deposits, demand deposits and bankers’ acceptances of any bank
or trust company incorporated under the laws of the United States or any state
thereof or the District of Columbia, provided that the short-term commercial
paper of such bank or trust company (or, in the case of the principal depository
institution in a depository institution holding company, the long-term unsecured
debt obligations of the depository institution holding company) at the date
of
acquisition thereof has been rated by each Rating Agency in its highest
short-term rating;
(xx) commercial
paper (having original maturities of not more than nine months) of any
corporation incorporated under the laws of the United States or any state
thereof or the District of Columbia which on the date of acquisition has been
rated by each Rating Agency in its highest short- term rating;
(xxi) a
money
market fund or a qualified investment fund rated by each Rating Agency in its
highest rating available; and
(xxii) if
previously confirmed in writing to the Trustee, any other obligation or security
acceptable to each Rating Agency in respect of mortgage pass-through
certificates rated in each Rating Agency’s highest rating category;
provided,
that no such instrument shall be a Permitted Instrument if such instrument
evidences either (a) the right to receive interest only payments with respect
to
the obligations underlying such instrument or (b) both principal and interest
payments derived from obligations underlying such instrument where the principal
and interest payments with respect to such instrument provide a yield to
maturity exceeding 120% of the yield to maturity at par of such underlying
obligation.
“Permitted
Transferee”: Any transferee of a Class R Certificate other than a Disqualified
Organization or a Non-United States Person.
-14-
“Person”:
Any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
“Pool
Strip Rate”: With respect to each Mortgage Loan, the rate per annum equal to the
Net Mortgage Rate thereon minus _____% per annum.
“Prepayment
Assumption”: A prepayment assumption of _____% of the standard prepayment
assumption, used for determining the accrual of original issue discount and
market discount and premium on the Certificates for federal income tax purposes.
The standard prepayment assumption assumes a constant rate of prepayment of
mortgage loans of 0.2% per annum of the then outstanding principal balance
of
such mortgage loans in the first month of the life of the mortgage loans,
increasing by an additional 0.2% per annum in each succeeding month until the
thirtieth month, and a constant 6% per annum rate of prepayment thereafter
for
the life of such mortgage loans.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a partial Principal Prepayment, a Principal
Prepayment in full, or of a Cash Liquidation or an REO Disposition during the
related Prepayment Period, an amount equal to the amount of interest that would
have accrued at the applicable Net Mortgage Rate (i) in the case of a Principal
Prepayment in full, Cash Liquidation or REO Disposition on the principal balance
of such Mortgage Loan immediately prior to such prepayment (or liquidation),
commencing on the date of prepayment (or liquidation) and ending on the last
day
of the month of prepayment or liquidation or (ii) in the case of a partial
Principal Prepayment, on the amount of such prepayment, commencing on the date
as of which the prepayment is applied and ending on the last day of the month
of
prepayment.
“Prepayment
Period”: As to any Distribution Date, the calendar month preceding the month in
which such Distribution Date occurs.
“Primary
Hazard Insurance Policy”: Each primary hazard insurance policy required to be
maintained pursuant to Section 3.13.
“Primary
Mortgage Insurance Policy”: Each primary mortgage insurance policy required to
be maintained pursuant to Section 3.13.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of
prepayment.
“Purchase
Price”: With respect to any Mortgage Loan (or REO Property) required to be
purchased pursuant to Section 2.02 or 2.04, an amount equal to the sum of (i)
100% of the Stated Principal Balance thereof, (ii) unpaid accrued interest
(or
REO Imputed Interest) at the sum of the applicable Net Mortgage Rate, the rate
at which the Trustee’s Fee accrues on the Stated Principal Balance thereof
outstanding during each Due Period that such interest was not paid or advanced,
from the date through which interest was last paid by the Mortgagor or advanced
and distributed to Certificateholders together with unpaid related Servicing
Fees from the date through which interest was last paid by the Mortgagor, in
each case to the first day of the month in which such Purchase Price is to
be
distributed, plus (iii) the aggregate of all Advances made in respect thereof
that were not previously reimbursed.
-15-
“Qualified
Insurer”: An insurance company duly qualified as such under the laws of the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact business in such states
and to write the insurance provided by the insurance policy issued by it,
approved as an insurer by the Master Servicer, as a ▇▇▇▇▇▇ Mae approved mortgage
insurer and having a claims paying ability rating of at least “AA” by
________________ and which is acceptable to _______________. Any replacement
insurer with respect to a Mortgage Loan must have at least as high a claims
paying ability rating by ______________ and _______________ as the insurer
it
replaces had on the Closing Date.
“Qualified
Substitute Mortgage Loan”: A Mortgage Loan substituted by the Depositor for a
Deleted Mortgage Loan which must, on the date of such substitution, as confirmed
in an Officers’ Certificate delivered to the Trustee, (i) have an outstanding
principal balance, after deduction of the principal portion of the monthly
payment due in the month of substitution (or in the case of a substitution
of
more than one Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in excess of the
Stated Principal Balance of the Deleted Mortgage Loan (the amount of any
shortfall to be deposited by the Master Servicer, in the Custodial Account
in
the month of substitution); (ii) have a Mortgage Rate and a Net Mortgage Rate
no
lower than and not more than 1% per annum higher than the Mortgage Rate and
Net
Mortgage Rate, respectively, of the Deleted Mortgage Loan as of the date of
substitution; (iii) have a remaining term to stated maturity not greater than
(and not more than one year less than) that of the Deleted Mortgage Loan; (iv)
comply with each representation and warranty set forth in Section 2 of the
Seller’s Warranty Certificate; (v) have a Loan-to-Value Ratio as of the date of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date; and (vi) be covered under a Primary Insurance
Policy if such Qualified Substitute Mortgage Loan has a Loan-to-Value Ratio
in
excess of 80%. In the event that one or more mortgage loans are substituted
for
one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the basis of aggregate principal balances, the Mortgage
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Rates, the Net Mortgage Rates described in clause
(ii)
hereof shall be satisfied as to each such mortgage loan, the terms described
in
clause (iii) shall be determined on the basis of weighted average remaining
terms to maturity, the Loan-to-Value Ratios described in clause (v) hereof
shall
be satisfied as to each such mortgage loan and, except to the extent otherwise
provided in this sentence, the representations and warranties described in
clause (iv) hereof must be satisfied as to each Qualified Substitute Mortgage
Loan or in the aggregate, as the case may be.
“Rating
Agency”: [Standard & Poor’s] [▇▇▇▇▇’▇] [Fitch]. If either agency or a
successor is no longer in existence, “Rating Agency” shall be such statistical
credit rating agency, or other comparable Person, designated by the Depositor,
notice of which designation shall be given to the Trustee and the Master
Servicer. References herein to the two highest long term debt rating categories
of a Rating Agency shall mean “AA” or better in the case of [Standard &
Poor’s] [Fitch] and “Aa2” or better in the case of Moody’s and references herein
to the highest short-term debt rating of a Rating Agency shall mean “A-1” in the
case of [Standard & Poor’s,] and in the case of any other Rating Agency such
references shall mean such rating categories without regard to any plus or
minus.
-16-
“Realized
Loss”: With respect to any Mortgage Loan or related REO Property as to which a
Cash Liquidation or REO Disposition has occurred, an amount (not less than
zero)
equal to (i) the Stated Principal Balance of the Mortgage Loan as of the date
of
Cash Liquidation or REO Disposition, plus (ii) interest (and REO Imputed
Interest, if any) at the related Net Mortgage Rate from the Due Date as to
which
interest was last paid or advanced to Certificateholders up to the date of
the
Cash Liquidation or REO Disposition on the Stated Principal Balance of such
Mortgage Loan outstanding during each Due Period that such interest was not
paid
or advanced, minus (iii) the proceeds, if any, received during the month in
which such Cash Liquidation or REO Disposition occurred, to the extent applied
as recoveries of interest at the related Net Mortgage Rate and to principal
of
the Mortgage Loan, net of the portion thereof reimbursable to the Master
Servicer or any Sub-Servicer with respect to related Advances not previously
reimbursed. With respect to each Mortgage Loan which has become the subject
of a
Deficient Valuation, 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 Mortgage Loan which has become the subject of a Debt
Service Reduction, the amount of such Debt Service Reduction.
“Record
Date”: The last Business Day of the month immediately preceding the month of the
related Distribution Date.
“Regular
Certificate”: Any of the Certificates other than the Class R
Certificates.
“Relief
Act”: The Servicemembers Relief Act of 2003, as amended.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date and any Mortgage
Loan, any reduction in the amount of interest collectible on such Mortgage
Loan
for the most recently ended calendar month as a result of the application of
the
Relief Act.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“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 proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to
time.
-17-
“Remittance
Report”: A report prepared by the Master Servicer providing the information set
forth in Exhibit E attached hereto.
“REO
Acquisition”: The acquisition by the Master Servicer on behalf of the Trustee
for the benefit of the Certificateholders of any REO Property pursuant to
Section 3.15.
“REO
Disposition”: The receipt by the Master Servicer of Insurance Proceeds,
Liquidation Proceeds and other payments and recoveries (including proceeds
of a
final sale) which the Master Servicer expects to be finally recoverable from
the
sale or other disposition of the REO Property.
“REO
Imputed Interest”: As to any REO Property, for any period, an amount equivalent
to interest (at the Mortgage Rate that would have been applicable to the related
Mortgage Loan had it been outstanding) on the unpaid principal balance of the
Mortgage Loan as of the date of acquisition thereof (as such balance is reduced
by any income from the REO Property treated as a recovery of principal pursuant
to Section 3.15).
“REO
Proceeds”: Proceeds, net of directly related expenses, received in respect of
any REO Property (including, without limitation, proceeds from the rental of
the
related Mortgaged Property and of any REO Disposition), which proceeds are
required to be deposited into the Custodial Account as and when
received.
“REO
Property”: A Mortgaged Property acquired by the Master Servicer through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
“Request
for Release”: A release signed by a Servicing Officer, in the form of Exhibits
F-1 or F-2 attached hereto.
“Required
Insurance Policy”: With respect to any Mortgage Loan, any Insurance Policy or
any other insurance policy that is required to be maintained from time to time
under this Agreement or pursuant to the provisions of a Mortgage
Loan.
“Residual
Certificate”: Any of the Class R Certificates.
“Responsible
Officer”: When used with respect to the Trustee, the Chairman or Vice Chairman
of the Board of Directors or Trustees, the Chairman or Vice Chairman of the
Executive or Standing Committee of the Board of Directors or Trustees, the
President, the Chairman of the Committee on Trust Matters, any vice president,
any assistant vice president, the Secretary, any assistant secretary, the
Treasurer, any assistant treasurer, the Cashier, any assistant cashier, any
trust officer or assistant trust officer, the Controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter
is
referred because of such officer’s knowledge of and familiarity with the
particular subject.
“Seller”:
[Name of Seller] and its successors and assigns.
-18-
“Seller’s
Warranty Certificate”: The Seller’s Warranty Certificate of the Seller, dated
______ __, 20__, in the form of Exhibit I attached hereto.
“Senior
Accelerated Distribution Percentage”: With respect to any Distribution Date, the
percentage indicated below:
DISTRIBUTION
DATE SENIOR ACCELERATED DISTRIBUTION PERCENTAGE
[TABLE]
provided,
however, (i) that any scheduled reduction to the Senior Accelerated Distribution
Percentage described above shall not occur as of any Distribution Date unless
either (a)(1) the outstanding principal balance of Mortgage Loans delinquent
[60] days or more averaged over the last six months, as a percentage of the
aggregate outstanding principal balance of all Mortgage Loans averaged over
the
last [six] months, does not exceed [2%] and (2) Realized Losses on the Mortgage
Loans to date for such Distribution Date if occurring during the sixth, seventh,
eighth, ninth or tenth year (or any year thereafter) after the Closing Date
are
less than [30%, 35%, 40%, 45% or 50%], respectively, of the Initial Certificate
Principal Balance of the Class B Certificates or (b)(1) the outstanding
principal balance of the Mortgage Loans delinquent [60] days or more averaged
over the last six months, as a percentage of the aggregate outstanding principal
balance of all Mortgage Loans averaged over the last [six] months, does not
exceed [4%] and (2) Realized Losses on the Mortgage Loans to date for such
Distribution Date are less than [10%] of the Initial Certificate Principal
Balance of the Class B Certificates and (ii) that for any Distribution Date
on
which the Senior Percentage is greater than the Original Senior Percentage,
the
Senior Accelerated Distribution Percentage for such Distribution Date shall
be
100%. Notwithstanding the foregoing, upon the reduction of the aggregate
Certificate Principal Balance of the Class A Certificates to zero, the Senior
Accelerated Distribution Percentage shall thereafter be 0%.
“Senior
Percentage”: As of any Distribution Date, the lesser of 100% and a fraction,
expressed as a percentage, the numerator of which is the aggregate Certificate
Principal Balance of the Class A Certificates immediately prior to such
Distribution Date and the denominator of which is the aggregate Stated Principal
Balance of all of the Mortgage Loans (or related REO Properties) immediately
prior to such Distribution Date.
“Senior
Principal Distribution Amount”: As to any Distribution Date, the lesser of (a)
the balance of the Available Distribution Amount remaining after the
distribution of all amounts required to be distributed pursuant to Section
4.02(b)(i) and (b) the sum of the amounts required to be distributed to the
Class A Certificateholders on such Distribution Date pursuant to Section
4.02(b)(ii) and (vi).
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: All customary, reasonable and necessary “out
of
pocket” costs and expenses incurred in connection with a default, delinquency or
other unanticipated event by the Master Servicer in the performance of its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under the second paragraph of Section 3.01 and Section
3.09.
-19-
“Servicing
Fee”: As to each Mortgage Loan, an amount, payable out of any payment of
interest on the Mortgage Loan, equal to interest at the related Servicing Fee
Rate on the Stated Principal Balance of such Mortgage Loan for the calendar
month preceding the month in which the payment is due (alternatively, in the
event such payment of interest accompanies a Principal Prepayment in full made
by the Mortgagor, interest for the number of days covered by such payment of
interest).
“Servicing
Fee Rate”: With respect to each Mortgage Loan, the per annum rate of
______%.
“Servicing
Officer”: Any officer of the Master Servicer involved in, or responsible for,
the administration and servicing of the Mortgage Loans, whose name appears
on a
list of servicing officers furnished to the Trustee by the Master Servicer,
as
such list may from time to time be amended.
“Single
Certificate”: A Certificate of any Class evidencing the minimum denomination for
Certificates of such Class as set forth in Section 5.01.
“Special
Hazard Amount”: As of any Distribution Date, an amount equal to $___________
(the initial “Special Hazard Amount”) minus the sum of (i) the aggregate amount
of Special Hazard Losses allocated solely to the Class B Certificates pursuant
to Section 4.04 and (ii) the Adjustment Amount (as defined below) as most
recently calculated. For each anniversary of the Cut-off Date, the Adjustment
Amount shall be calculated and shall be equal to the amount, if any, by which
the amount calculated in accordance with the preceding sentence (without giving
effect to the deduction of the Adjustment Amount for such anniversary) exceeds
the greater of (A) the product of the Special Hazard Percentage for such
anniversary multiplied by the outstanding principal balance of all of the
Mortgage Loans on such anniversary and (B) twice the outstanding principal
balance of the Mortgage Loan which has the largest outstanding principal balance
on such Anniversary.
“Special
Hazard Percentage”: As of each anniversary of the Cut-off Date, the greater of
(i) 1% and (ii) the largest percentage obtained by dividing the aggregate
outstanding principal balance on such anniversary of the Mortgage Loans secured
by Mortgaged Properties located in a single, five-digit zip code area in the
State of California by the outstanding principal balance of all the Mortgage
Loans on such anniversary.
“[Standard
& Poor’s”: Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., or its successor in interest.]
“Startup
Day”: The day designated as such pursuant to Article X hereof.
-20-
“Stated
Principal Balance”: With respect to any Mortgage Loan or related REO Property at
any given time, (i) the principal balance of the Mortgage Loan outstanding
as of
the Cut-off Date, after application of principal payments due on or before
such
date, whether or not received, minus (ii) the sum of (a) the principal portion
of the Monthly Payments due with respect to such Mortgage Loan or REO Property
during each Due Period ending prior to the most recent Distribution Date which
were received or with respect to which an Advance was made, (b) all Principal
Prepayments with respect to such Mortgage Loan or REO Property, and all
Insurance Proceeds, Liquidation Proceeds and net income from a REO Property
to
the extent applied by the Master Servicer as recoveries of principal in
accordance with Section 3.15 with respect to such Mortgage Loan or REO Property,
which were distributed pursuant to Section 4.01 on any previous Distribution
Date and (c) any Realized Loss with respect thereto allocated pursuant to
Section 4.04 for any previous Distribution Date.
“Subordinate
Principal Distribution Amount”: With respect to any Distribution Date and the
Class B Certificates, (a) the sum of (i) the product of (x) the Class B
Percentage and (y) the aggregate of the amounts calculated for such Distribution
Date under clauses (1), (2) and (3) of Section 4. 01 (b)(ii)(A); (ii) the
principal collections described in Section 4. 01 (b)(ii)(B) to the extent such
collections are not otherwise distributed to the Senior Certificates; and (iii)
the product of (x) 100% minus the Senior Accelerated Distribution Percentage
and
(z) the aggregate of all Principal Prepayments in Full and Curtailments received
in the related Prepayment Period; provided, however, that such amount shall
in
no event exceed the outstanding Certificate Principal Balance of the Class
B
Certificates immediately prior to such date.
“Sub-Servicer”:
Any Person with which the Master Servicer has entered into a Sub-Servicing
Agreement and which meets the qualifications of a Sub-Servicer pursuant to
Section 3.02.
“Sub-Servicer
Remittance Date”: The 18th day of each month, or if such day is not a Business
Day, the immediately preceding Business Day.
“Sub-Servicing
Account”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the Master
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Master Servicer and a Sub-Servicer
and any successor Sub-Servicer relating to servicing and administration of
certain Mortgage Loans as provided in Section 3.02.
“Swap
Provider”: The swap provider under a swap agreement either (a) entitled to
receive payments from an administrator from amounts payable by the Trust Fund
under this Agreement or (b) required to make payments to an administrator for
payment to the Trust Fund, in either case pursuant to the terms of a swap
agreement, and any successor in interest or assign.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on
behalf of the Trust Fund due to its classification as a REMIC under the REMIC
Provisions, together with any and all other information, reports or returns
that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
-21-
“Transfer”:
Any direct or indirect transfer, sale, pledge, hypothecation or other form
of
assignment of any Ownership Interest in a Certificate.
“Transferor”:
Any Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trust
Fund”: The segregated pool of assets subject hereto, constituting the primary
trust created hereby and to be administered hereunder, with respect to which
a
REMIC election is to be made, consisting of: (i) the Mortgage Loans (exclusive
of payments of principal and interest due on or before the Cut-off Date, if
any)
as from time to time are subject to this Agreement and all payments under and
proceeds of the Mortgage Loans, together with all documents included in the
related Mortgage File, subject to Section 2.01; (ii) such funds or assets as
from time to time are deposited in the Custodial Account and the Certificate
Account; (iii) any REO Property; (iv) the Primary Mortgage Insurance Policies,
if any, Primary Hazard Insurance Policies and all other Insurance Policies
with
respect to the Mortgage Loans; and (v) the Depositor’s interest in respect of
the representations and warranties made by the Seller in the Seller’s Warranty
Certificate as assigned to the Trustee pursuant to Section 2.04
hereof.
“Trustee”:
[Name of Trustee], or its successor in interest, or any successor trustee
appointed as herein provided.
“Trustee’s
Fee”: As to each Mortgage Loan and Distribution Date, an amount, payable out of
any payment of interest on the Mortgage Loan, equal to interest at ______%
per
annum on the Stated Principal Balance of such Mortgage Loan as of the Due Date
immediately preceding the month in which such Distribution Date
occurs.
“Uninsured
Cause”: Any cause of damage to property subject to a Mortgage such that the
complete restoration of such property is not fully reimbursable by the hazard
insurance policies or flood insurance policies required to be maintained
pursuant to Section 3.13.
“United
States Person”: A citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of,
the
United States or any political subdivision thereof, or an estate or trust whose
income from sources without the United States is includable in gross income
for
United States federal income tax purposes regardless of its connection with
the
conduct of a trade or business within the United States. The term “United
States” shall have the meaning set forth in Section 7701 of the Code or
successor provisions.
-22-
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. ______% of all of the Voting Rights shall be
allocated among Holders of the Certificates, respectively, other than the Class
A-5, Class A-7 and Class R Certificates, in proportion to the outstanding
Certificate Principal Balances of their respective Certificates; and the Holders
of the Class A-5, Class A-7 and Class R Certificates shall be entitled to ___%,
___% and ___% of all of the Voting Rights, respectively, allocated among the
Certificates of each such Class in accordance with their respective Percentage
Interests.
-23-
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans.
|
The
Depositor, as of the Closing Date, and concurrently with the execution and
delivery hereof, does hereby assign, transfer, sell, set over and otherwise
convey to the Trustee without recourse all the right, title and interest of
the
Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule
and all other assets included or to be included in the Trust Fund for the
benefit of the Certificateholders. Such assignment includes all principal and
interest received by the Master Servicer on or with respect to the Mortgage
Loans (other than payment of principal and interest due on or before the Cut-off
Date).
In
connection with such transfer and assignment, the Depositor has requested the
Seller to deliver to, and deposit with the Trustee, the following documents
or
instruments:
(i) the
original Mortgage Note, endorsed by the Seller “Pay to the order of [Name of
Trustee], as trustee without recourse” or to “Pay to the order of [Name of
Trustee], as trustee for holders of BNP Paribas Mortgage Securities LLC,
Mortgage Pass-Through Certificates, Series 200_-_, without recourse” with all
intervening endorsements showing a complete chain of endorsements from the
originator to the Person endorsing it to the Trustee;
(ii) the
original recorded Mortgage or, if the original Mortgage has not been returned
from the applicable public recording office, a copy of the Mortgage certified
by
the Seller to be a true and complete copy of the original Mortgage submitted
to
the title insurance company for recording;
(iii) a
duly
executed original Assignment of the Mortgage endorsed by the Seller, without
recourse, to “[Name of Trustee], as trustee” or to “[Name of Trustee], as
trustee for holders of BNP Paribas Mortgage Securities LLC, Mortgage
Pass-Through Certificates, Series 200_-_”, with evidence of recording
thereon;
(iv) the
original recorded Assignment or Assignments of the Mortgage showing a complete
chain of assignment from the originator thereof to the Person assigning it
to
the Trustee or, if any such Assignment has not been returned from the applicable
public recording office, a copy of such Assignment certified by the Seller
to be
a true and complete copy of the original Assignment submitted to the title
insurance company for recording;
(v) the
original lender’s title insurance policy, or, if such policy has not been
issued, any one of an original or a copy of the preliminary title report, title
binder or title commitment on the Mortgaged Property with the original policy
of
the insurance to be delivered promptly following the receipt
thereof;
-24-
(vi) the
original of any assumption, modification, extension or guaranty
agreement;
(vii) the
original or a copy of the private mortgage insurance policy or original
certificate of private mortgage insurance, if applicable; and
(viii) if
any of
the documents or instruments referred to above were executed on behalf of the
Mortgagor by another Person, the original power of attorney or other instrument
that authorized and empowered such Person to sign, or a copy thereof certified
by the Seller (or by an officer of the applicable title insurance or escrow
company) to be a true and correct copy of the original.
The
Seller is obligated pursuant to the Seller’s Warranty Certificate to deliver to
the Trustee: (a) either the original recorded Mortgage, or in the event such
original cannot be delivered by the Seller, a copy of such Mortgage certified
as
true and complete by the appropriate recording office, in those instances where
a copy thereof certified by the Seller was delivered to the Trustee pursuant
to
clause (ii) above; and (b) either the original Assignment or Assignments of
the
Mortgage, with evidence of recording thereon, showing a complete chain of
assignment from the originator to the Seller, or in the event such original
cannot be delivered by the Seller, a copy of such Assignment or Assignments
certified as true and complete by the appropriate recording office, in those
instances where copies thereof certified by the Seller were delivered to the
Trustee pursuant to clause (iv) above. Notwithstanding anything to the contrary
contained in this Section 2.01, in those instances where the public recording
office retains the original Mortgage after it has been recorded, the Seller
shall be deemed to have satisfied its obligations hereunder upon delivery to
the
Trustee of a copy of such Mortgage certified by the public recording office
to
be a true and complete copy of the recorded original thereof.
If
any
Assignment is lost or returned unrecorded to the Trustee because of any defect
therein, the Seller is required to prepare a substitute Assignment or cure
such
defect, as the case may be, and the Trustee shall cause such Assignment to
be
recorded in accordance with this paragraph.
The
Seller is required, as described in the Seller’s Warranty Certificate, to
deliver to the Trustee the original of any documents assigned to the Trustee
pursuant to this Section 2.01 not later than 120 days after the Closing
Date.
All
original documents relating to the Mortgage Loans which are not delivered to
the
Trustee, to the extent delivered by the Seller to the Master Servicer, are
and
shall be held by the Master Servicer in trust for the benefit of the Trustee
on
behalf of the Certificateholders.
Except
as
may otherwise expressly be provided herein, neither the Depositor, the Master
Servicer nor the Trustee shall (and the Master Servicer shall ensure that no
Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the
Trust Fund or any portion thereof, or permit the Trust Fund or any portion
thereof to be subject to any lien, claim, mortgage, security interest, pledge
or
other encumbrance of, any other Person.
-25-
It
is
intended that the conveyance of the Mortgage Loans by the Depositor to the
Trustee as provided in this Section be, and be construed as, a sale of the
Mortgage Loans by the Depositor to the Trustee for the benefit of the
Certificateholders. It is, further, not intended that such conveyance be deemed
a pledge of the Mortgage Loans by the Depositor to the Trustee 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 Depositor, or if for any reason this
Agreement is held or deemed to create a security interest in the Mortgage Loans,
then it is intended that, (a) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in this Section shall be deemed
to
be (1) a grant by the Depositor to the Trustee of a security interest in all
of
the Depositor’s right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, (B) all amounts
payable to the holders of the Mortgage Loans in accordance with the terms
thereof and (C) all proceeds of the conversion, voluntary or involuntary, of
the
foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Certificate Account or the Custodial Account, whether in the form of cash,
instruments, securities or other property and (2) an assignment by the Depositor
to the Trustee of any security interest in any and all of the Seller’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) granted by [Name of Seller] to the Depositor pursuant
to the Assignment Agreement; (c) the possession by the Trustee or its agent
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 New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction (including, without limitation, Sections 9-115,
9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons
holding such property, and acknowledgments, receipts or confirmations from
persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor and the Trustee
shall, to the extent consistent with this Agreement, take such actions as may
be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be
a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the term of the Agreement.
|
SECTION
2.02.
|
Acceptance
of the Trust Fund by the Trustee.
|
The
Trustee acknowledges receipt (subject to any exceptions noted in the Initial
Certification described below) of the documents referred to in Section 2.01
above and all other assets included in the Trust Fund and declares that it
holds
and will hold such documents and the other documents delivered to it
constituting the Mortgage Files, and that it holds or will hold such other
assets included in the Trust Fund (to the extent delivered or assigned to the
Trustee), in trust for the exclusive use and benefit of all present and future
Certificateholders.
-26-
The
Trustee agrees, for the benefit of the Certificateholders, to review each
Mortgage File on or before the Closing Date to ascertain that all documents
required to be delivered to it are in its possession, and the Trustee agrees
to
execute and deliver to the Depositor and the Master Servicer on the Closing
Date
an Initial Certification in the form annexed hereto as Exhibit C to the effect
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than
any Mortgage Loan paid in full or any Mortgage Loan specifically identified
in
such certification as not covered by such certification), (i) all documents
required to be delivered to it pursuant to this Agreement with respect to such
Mortgage Loan are in its possession, (ii) such documents have been reviewed
by
it and appear regular on their face and relate to such Mortgage Loan and (iii)
based on its examination and only as to the foregoing documents, the information
set forth in items (i) - (vi) and (xiii) of the definition of the “Mortgage Loan
Schedule” accurately reflects information set forth in the Mortgage File.
Neither the Trustee nor the Master Servicer shall be under any duty to determine
whether any Mortgage File should include any of the documents specified in
clause (vi) of Section 2.01. Neither the Trustee nor the Master Servicer shall
be under any duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded or that they are other than what they purport to
be
on their face.
Within
90
days of the Closing Date the Trustee shall deliver to the Depositor and the
Master Servicer a Final Certification in the form annexed hereto as Exhibit
D
evidencing the completeness of the Mortgage Files, with any applicable
exceptions noted thereon.
If
in the
process of reviewing the Mortgage Files and preparing the certifications
referred to above the Trustee finds any document or documents constituting
a
part of a Mortgage File to be missing or defective in any material respect,
the
Trustee shall promptly notify the Seller, the Master Servicer and the Depositor.
The Trustee shall promptly notify the Seller of such defect and request that
the
Seller cure any such defect within 60 days from the date on which the Seller
was
notified of such defect, and if the Seller does not cure such defect in all
material respects during such period, request that the Seller purchase such
Mortgage Loan from the Trust Fund on behalf of the Certificateholders at the
Purchase Price within 90 days after the date on which the Seller was notified
of
such defect. It is understood and agreed that the obligation of the Seller
to
cure a material defect in, or purchase any Mortgage Loan as to which a material
defect in a constituent document exists shall constitute the sole remedy
respecting such defect available to Certificateholders or the Trustee on behalf
of Certificateholders. The Purchase Price for the purchased Mortgage Loan shall
be deposited or caused to be deposited upon receipt by the Master Servicer
in
the Custodial Account and, upon receipt by the Trustee of written notification
of such deposit signed by a Servicing Officer, the Trustee shall release or
cause to be released to the Seller the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as the Seller shall require as necessary to vest in the Seller
ownership of any Mortgage Loan released pursuant hereto and at such time the
Trustee shall have no further responsibility with respect to the related
Mortgage File.
-27-
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Master Servicer and the
Depositor.
|
(a) The
Master Servicer hereby represents and warrants to and covenants with the
Depositor and the Trustee for the benefit of Certificateholders
that:
(i) The
Master Servicer is, and throughout the term hereof shall remain, a duly
organized, validly existing and in good standing under the laws of the State
of
(except as otherwise permitted pursuant to Section 6.02), the Master Servicer
is, and shall remain, in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its obligations
under this Agreement, and the Master Servicer is, and shall remain, approved
to
sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇
Mac;
(ii) The
execution and delivery of this Agreement by the Master Servicer, and the
performance and compliance with the terms of this Agreement by the Master
Servicer, will not violate the Master Servicer’s articles of incorporation or
bylaws or constitute a default (or an event which, with notice or lapse of
time,
or both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The
Master Servicer has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly executed
and
delivered this Agreement;
(iv) This
Agreement, assuming due authorization, execution and delivery by the Depositor
and the Trustee, constitutes a valid, legal and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors’ rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The
Master Servicer is not in violation of, and its execution and delivery of this
Agreement and its performance and compliance with the terms of this Agreement
will not constitute a violation of, any law, any order or decree of any court
or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation is likely to affect
materially and adversely either the ability of the Master Servicer to perform
its obligations under this Agreement or the financial condition of the Master
Servicer;
(vi) No
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement or is likely
to affect materially and adversely either the ability of the Master Servicer
to
perform its obligations under this Agreement or the financial condition of
the
Master Servicer;
-28-
(vii) The
Master Servicer will comply in all material respects in the performance of
this
Agreement and with all reasonable rules and requirements of each insurer under
each Insurance Policy; and
(viii) The
execution of this Agreement and the performance of the Master Servicer’s
obligations hereunder do not require any license, consent or approval of any
state or federal court, agency, regulatory authority or other governmental
body
having jurisdiction over the Master Servicer, other than such as have been
obtained; and (ix) no information, certificate of an officer, statement
furnished in writing or report delivered to the Depositor, any affiliate of
the
Depositor or the Trustee by the Master Servicer will, to the knowledge of the
Master Servicer, contain any untrue statement of a material fact or omit a
material fact necessary to make the information, certificate, statement or
report not misleading.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.03(a) shall survive the execution and delivery of this
Agreement, and shall inure to the benefit of the Depositor, the Trustee and
the
Certificateholders. Upon discovery by the Depositor, the Trustee or the Master
Servicer of a breach of any of the foregoing representations, warranties and
covenants that materially and adversely affects the interests of the Depositor
or the Trustee, the party discovering such breach shall give prompt written
notice to the other parties.
(b) The
Depositor hereby represents and warrants to the Master Servicer and the Trustee
for the benefit of Certificateholders that as of the Closing Date (or, if
otherwise specified below, as of the date so specified):
(i) Immediately
prior to the assignment of the Mortgage Loans to the Trustee, the Depositor
had
good title to, and was the sole owner of, each Mortgage Loan free and clear
of
any pledge, lien, encumbrance or security interest (other than rights to
servicing and related compensation) and such assignment validly transfers
ownership of the Mortgage Loans to the Trustee free and clear of any pledge,
lien, encumbrance or security interest;
(ii) No
Mortgage Loan is one month or more delinquent in payment of principal and
interest as of the Cut-off Date and no Mortgage Loan has been so delinquent
more
than once in the 12-month period prior to the Cut- off Date;
(iii) The
information set forth in the Mortgage Loan Schedule with respect to each
Mortgage Loan or the Mortgage Loans, as the case may be, is true and correct
in
all material respects at the date or dates respecting which such information
is
furnished;
-29-
(iv) The
Mortgage Loans are fully-amortizing, fixed-rate mortgage loans with level
Monthly Payments due on the first day of each month and terms to maturity at
origination or modification of not more than 30 years;
(v) Each
Mortgage Loan secured by a Mortgaged Property with a Loan-to-Value Ratio at
origination in excess of 80% is the subject of a Primary Mortgage Insurance
Policy that insures that portion of the principal balance thereof that exceeds
the amount equal to 75% of the appraised value of the related Mortgaged
Property. Each such Primary Mortgage Insurance Policy is in full force and
effect and the Trustee is entitled to the benefits thereunder; and
(vi) The
representations and warranties of the Seller with respect to the Mortgage Loans
and the remedies therefor are as set forth in the Seller’s Warranty
Certificate.
[Other
representations and warranties as applicable.]
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.03(b) shall survive delivery of the respective Mortgage Files to
the
Trustee.
Upon
discovery by either the Depositor, the Master Servicer or the Trustee of a
breach of any representation or warranty set forth in this Section 2.03 which
materially and adversely affects the interests of the Certificateholders in
any
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties.
|
SECTION
2.04.
|
Representations
and Warranties of the Seller; Repurchase and
Substitution.
|
The
Depositor hereby assigns to the Trustee for the benefit of Certificateholders
its interest in respect of the representations and warranties made by the Seller
in the Seller’s Warranty Certificate or the exhibits thereto. Insofar as the
Seller’s Warranty Certificate relates to such representations and warranties and
any remedies provided thereunder for any breach of such representations and
warranties, such right, title and interest may be enforced by the Trustee on
behalf of the Certificateholders. Upon the discovery by the Depositor, the
Master Servicer or the Trustee of a breach of any of the representations and
warranties made in the Seller’s Warranty Certificate in respect of any Mortgage
Loan which materially and adversely affects the interests of the
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties. The Trustee shall
promptly notify the Seller of such breach and request that such Seller shall,
within 90 days from the date that the Depositor, the Seller or the Trustee
was
notified of such breach, either (i) cure such breach in all material respects
or
(ii) purchase such Mortgage Loan from the Trust Fund at the Purchase Price
and
in the manner set forth in Section 2.02; provided that in the case of such
breach, the Seller shall have the option to substitute a Qualified Substitute
Mortgage Loan or Loans for such Mortgage Loan if such substitution occurs within
two years following the Closing Date. Any such substitution must occur within
90
days from the date the Seller was notified of the breach if such 90 day period
expires before two years following the Closing Date. In the event that the
Seller elects to substitute a Qualified Substitute Mortgage Loan or Loans for
a
Deleted Mortgage Loan pursuant to this Section 2.04, the Seller shall deliver
to
the Trustee for the benefit of the Certificateholders with respect to such
Qualified Substitute Mortgage Loan or Loans, the original Mortgage Note, the
Mortgage, an Assignment of the Mortgage in recordable form, and such other
documents and agreements as are required by Section 2.01, with the Mortgage
Note
endorsed as required by Section 2.01. No substitution will be made in any
calendar month after the Determination Date for such month. Monthly Payments
due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall not be part of the Trust Fund and will be retained by the Master Servicer
and remitted by the Master Servicer to the Seller on the next succeeding
Distribution Date.
-30-
For
the
month of substitution, distributions to Certificateholders will include the
Monthly Payment due on a Deleted Mortgage Loan for such month and thereafter
the
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The Depositor shall amend or cause to be amended the
Mortgage Loan Schedule for the benefit of the Certificateholders to reflect
the
removal of such Deleted Mortgage Loan and the substitution of the Qualified
Substitute Mortgage Loan or Loans and the Depositor shall deliver the amended
Mortgage Loan Schedule, to the Trustee. Upon such substitution, the Qualified
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, the Seller shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute Mortgage
Loan contained in the Seller’s Warranty Certificate as of the date of
substitution, and the Depositor shall be deemed to have made with respect to
any
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the
representations and warranties set forth in Section 2.03 hereof, and the Seller
shall be obligated to repurchase or substitute for any Qualified Substitute
Mortgage Loan as to which a repurchase or substitution obligation has occurred
pursuant to Section 3 of the Seller’s Warranty Certificate.
In
connection with the substitution of one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine
the amount (if any) by which the aggregate principal balance of all such
Qualified Substitute Mortgage Loans as of the date of substitution is less
than
the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (in
each case after application of the principal portion of the Monthly Payments
due
in the month of substitution that are to be distributed to Certificateholders
in
the month of substitution). The Seller shall provide the Master Servicer on
the
day of substitution for immediate deposit in to the Custodial Account the amount
of such shortfall, without any reimbursement therefor. The Seller shall give
notice in writing to the Trustee of such event, which notice shall be
accompanied by an Officers’ Certificate as to the calculation of such shortfall
and by an Opinion of Counsel to the effect that such substitution will 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)(1) of the Code or on “contributions after the startup date” under
Section 860G(d)(1) of the Code or (b) any portion of the Trust Fund to fail
to
qualify as a REMIC at any time that any Certificate is outstanding. The costs
of
any substitution as described above, including any related assignments, opinions
or other documentation in connection therewith shall be borne by the
Seller.
-31-
Except
as
expressly set forth herein neither the Trustee nor the Master Servicer is under
any obligation to discover any breach of the above mentioned representations
and
warranties. It is understood and agreed that the obligation of the Seller to
cure such breach or to so purchase or substitute for any Mortgage Loan as to
which such a breach has occurred and is continuing shall constitute the sole
remedy respecting such breach available to Certificateholders or the Trustee
on
behalf of Certificateholders. In addition, if the first scheduled Monthly
Payment is due during the first month after its closing date (as such term
is
used in the Seller’s Warranties Certificate) and such Monthly Payment is not
received by the Master Servicer within 30 days of the due date in accordance
with the terms of the related Mortgage Note, the Master Servicer shall promptly
notify the Seller and the Trustee and the Seller shall purchase such Mortgage
Loan from the Trust Fund at the Purchase Price or substitute a Qualified
Substitute Mortgage Loan therefor within 15 days from the date that the Seller
was notified.
|
SECTION
2.05.
|
Issuance
of Certificates Evidencing Interests in the Trust
Fund.
|
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
of the Mortgage Files to it together with the assignment to it of all other
assets included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such delivery and in exchange therefor, the Trustee, pursuant
to the written request of the Depositor executed by an officer of the Depositor,
has executed and caused to be authenticated, and delivered to or upon the order
of the Depositor, the Certificates in authorized denominations which evidence
ownership of the entire Trust Fund.
|
SECTION
2.06.
|
Purposes
and Powers of the Trust.
|
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
-32-
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding, and this Section 2.06 may not be amended,
without the consent of the Certificateholders evidencing 51% or more of the
aggregate Voting Rights of the Certificates.
-33-
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE TRUST FUND
|
SECTION
3.01.
|
Master
Servicer to Act as Master Servicer.
|
The
Master Servicer shall service and administer the Mortgage Loans for the benefit
of the Certificateholders, in accordance with this Agreement and the customary
and usual standards of practice of prudent institutional mortgage lenders
servicing comparable mortgage loans for their own account in the respective
states in which the Mortgaged Properties are located. Subject to the foregoing,
the Master Servicer shall have full power and authority, acting alone and/or
through Sub-Servicers as provided in Section 3.02, to do or cause to be done
any
and all things in connection with such servicing and administration that it
may
deem necessary or desirable. Without limiting the generality of the foregoing,
the Master Servicer in its own name or in the name of a Sub-Servicer is hereby
authorized and empowered by the Trustee when the Master Servicer believes it
appropriate in its best judgment, to (i) execute and deliver, on behalf of
the
Certificateholders and the Trustee or any of them, any and all instruments
of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties, (ii) institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and (iii) hold or cause to be held title to such properties, on behalf of the
Trustee and Certificateholders. The Master Servicer shall service and administer
the Mortgage Loans in accordance with applicable state and federal law and
shall
provide to the Mortgagors any reports required to be provided to them thereby.
Subject to Section 3.16, the Trustee shall furnish to the Master Servicer and
any Sub-Servicer any powers of attorney and other documents necessary or
appropriate to enable the Master Servicer and any Sub- Servicer to carry out
their servicing and administrative duties hereunder. The Trustee shall not
be
responsible for any action taken by the Master Servicer or any Sub-Servicer
pursuant to the application of such powers of attorney. In accordance with
the
standards of the preceding paragraph, the Master Servicer shall advance or
cause
to be advanced funds as necessary for the purpose of effecting the payment
of
taxes and assessments on the Mortgaged Properties, which advances shall be
reimbursable in the first instance from related collections from the Mortgagors
pursuant to Section 3.09, and further as provided in Section 3.11. No costs
incurred by the Master Servicer or by Sub- Servicers in effecting the payment
of
taxes and assessments on the Mortgaged Properties shall, for the purpose of
calculating distributions to Certificateholders, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
The
Master Servicer shall not (unless the Mortgagor is in default with respect
to
the Mortgage Loan or such default is, in the judgment of the Master Servicer,
reasonably foreseeable) make or permit any modification, waiver or amendment
of
any term of any Mortgage Loan that would both (i) effect an exchange or
reissuance of such Mortgage Loan under Section 1001 of the Code (or final,
temporary or proposed Treasury regulations promulgated thereunder) and (ii)
cause 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 date under the REMIC Provisions.
-34-
The
Master Servicer may approve a request for a partial release of the Mortgaged
Property, easement, consent to alteration or demolition and other similar
matters if it has determined, exercising its good faith business judgement
in
the same manner as it would if it were the owner of the related Mortgage Loan,
that such approval will not adversely affect the security for, or the timely
and
full collectability of, the related Mortgage Loan. Any fee collected by the
Master Servicer for processing such request will be retained by the Master
Servicer as additional servicing compensation.
The
relationship of the Master Servicer (and of any successor to the Master Servicer
under this Agreement) to the Trustee under this Agreement is intended by the
parties to be that of an independent contractor and not that of a joint
venturer, partner or agent.
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between Master Servicer and Sub-
Servicers.
|
(a) The
Master Servicer may enter into Sub-Servicing Agreements with Sub- Servicers
for
the servicing and administration of the Mortgage Loans and for the performance
of any and all other activities of the Master Servicer hereunder. Each
Sub-Servicer shall be either (i) an institution the accounts of which are
insured by the FDIC or (ii) another entity that engages in the business of
originating or servicing mortgage loans, and in either case shall be authorized
to transact business in the state or states in which the related Mortgaged
Properties it is to service are situated, if and to the extent required by
applicable law to enable the Sub-Servicer to perform its obligations hereunder
and under the Sub-Servicing Agreement, and in either case shall be a ▇▇▇▇▇▇▇
Mac
or ▇▇▇▇▇▇ Mae approved mortgage servicer. Each Sub-Servicing Agreement must
impose on the Sub-Servicer requirements conforming to the provisions set forth
in Section 3.08 and provide for servicing of the Mortgage Loans consistent
with
the terms of this Agreement. With the consent of the Trustee, which consent
shall not be unreasonably withheld, the Master Servicer and the Sub-Servicers
may enter into Sub-Servicing Agreements and make amendments to the Sub-Servicing
Agreements or enter into different forms of Sub-Servicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement.
(b) As
part
of its servicing activities hereunder, the Master Servicer, for the benefit
of
the Trustee and the Certificateholders, shall enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement, including, without
limitation, any obligation to make advances in respect of delinquent payments
as
required by a Sub-Servicing Agreement, or to purchase a Mortgage Loan on account
of defective documentation or on account of a breach of a representation or
warranty, as described in Section 2.02. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense, but shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement only to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys’ fees against the
party against whom such enforcement is directed.
-35-
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
The
Master Servicer shall be entitled to terminate any Sub-Servicing Agreement
and
the rights and obligations of any Sub-Servicer pursuant to any Sub-Servicing
Agreement in accordance with the terms and conditions of such Sub-Servicing
Agreement. In the event of termination of any Sub-Servicer, all servicing
obligations of such Sub-Servicer shall be assumed simultaneously by the Master
Servicer without any act or deed on the part of such Sub-Servicer or the Master
Servicer, and the Master Servicer either shall service directly the related
Mortgage Loans or shall enter into a Sub-Servicing Agreement with a successor
Sub-Servicer which qualifies under Section 3.02.
|
SECTION
3.04.
|
Liability
of the Master Servicer.
|
Notwithstanding
any Sub-Servicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Master Servicer and a Sub-Servicer or
reference to actions taken through a Sub-Servicer or otherwise, the Master
Servicer shall remain obligated and primarily liable to the Trustee and
Certificateholders for the servicing and administering of the Mortgage Loans
in
accordance with the provisions of Section 3.01 without diminution of such
obligation or liability by virtue of such Sub-Servicing Agreements or
arrangements or by virtue of indemnification from the Sub-Servicer and to the
same extent and under the same terms and conditions as if the Master Servicer
alone were servicing and administering the Mortgage Loans. For purposes of
this
Agreement, the Master Servicer shall be deemed to have received payments on
Mortgage Loans when the Sub-Servicer has received such payments. The Master
Servicer shall be entitled to enter into any agreement with a Sub-Servicer
for
indemnification of the Master Servicer by such Sub-Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
|
SECTION
3.05.
|
No
Contractual Relationship Between Sub-Servicers and Trustee or
Certificateholders.
|
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such and not as an originator shall be deemed to be between the Sub-Servicer
and the Master Servicer alone, and the Trustee and Certificateholders shall
not
be deemed parties thereto and shall have no claims, rights, obligations, duties
or liabilities with respect to the Sub-Servicer except as set forth in Section
3.06.
|
SECTION
3.06.
|
Assumption
or Termination of Sub-Servicing Agreements by
Trustee.
|
In
the
event the Master Servicer shall for any reason no longer be the master servicer
(including by reason of an Event of Default), the Trustee or its designee shall
thereupon assume all of the rights and obligations of the Master Servicer under
each Sub-Servicing Agreement that the Master Servicer may have entered into,
unless the Trustee is then permitted and elects to terminate any Sub-Servicing
Agreement in accordance with its terms. The Trustee, its designee or the
successor servicer for the Trustee shall be deemed to have assumed all of the
Master Servicer’s interest therein and to have replaced the Master Servicer as a
party to each Sub-Servicing Agreement to the same extent as if the Sub-Servicing
Agreements had been assigned to the assuming party, except that the Master
Servicer shall not thereby be relieved of any liability or obligations under
the
Sub-Servicing Agreements, and the Master Servicer shall continue to be entitled
to any rights or benefits which arose prior to its termination as master
servicer.
-36-
The
Master Servicer at its expense shall, upon request of the Trustee, deliver
to
the assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreements to the
assuming party.
|
SECTION
3.07.
|
Collection
of Certain Mortgage Loan Payments.
|
The
Master Servicer shall make reasonable efforts to collect all payments called
for
under the terms and provisions of the Mortgage Loans, and shall, to the extent
such procedures shall be consistent with this Agreement and the terms and
provisions of any related Insurance Policy, follow such collection procedures
as
it would follow with respect to mortgage loans comparable to the Mortgage Loans
and held for its own account. The Master Servicer shall not be required to
institute or join in litigation with respect to collection of any payment
(whether under a Mortgage, Mortgage Note, Primary Hazard Insurance Policy,
Primary Mortgage Insurance Policy or otherwise or against any public or
governmental authority with respect to a taking or condemnation) if it
reasonably believes that it is prohibited by applicable law from enforcing
the
provision of the Mortgage or other instrument pursuant to which such payment
is
required. Consistent with the foregoing, the Master Servicer may in its
discretion waive any prepayment fees, late payment charge or other charge,
except as otherwise required under applicable law. The Master Servicer shall
be
responsible for preparing and distributing all information statements relating
to payments on the Mortgage Loans, in accordance with all applicable federal
and
state tax laws and regulations.
|
SECTION
3.08.
|
Sub-Servicing
Accounts.
|
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall otherwise be
acceptable to the Master Servicer. All amounts held in a Sub-Servicing Account
shall be held in trust for the Trustee for the benefit of the
Certificateholders. The Sub-Servicer will be required to deposit into the
Sub-Servicing Account no later than the first Business Day after receipt all
proceeds of Mortgage Loans received by the Sub-Servicer, less its servicing
compensation and any unreimbursed expenses and advances, to the extent permitted
by the Sub-Servicing Agreement. On each Sub-Servicer Remittance Date the
Sub-Servicer will be required to remit to the Master Servicer for deposit into
the Custodial Account all funds held in the Sub-Servicing Account with respect
to any Mortgage Loan as of the Sub-Servicer Remittance Date, after deducting
from such remittance an amount equal to the servicing compensation and
unreimbursed expenses and advances to which it is then entitled pursuant to
the
related Sub- Servicing Agreement, to the extent not previously paid to or
retained by it. In addition, on each Sub-Servicer Remittance Date the
Sub-Servicer will be required to remit to the Master Servicer any amounts
required to be advanced pursuant to the related Sub-Servicing Agreement. The
Sub-Servicer will also be required to remit to the Master Servicer, within
one
Business Day of receipt, the proceeds of any Principal Prepayment made by the
Mortgagor and any Insurance Proceeds or Liquidation Proceeds.
-37-
|
SECTION
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
The
Master Servicer and the Sub-Servicers shall establish and maintain one or more
accounts (the “Servicing Accounts”), and shall deposit and retain therein all
collections from the Mortgagors (or related advances from Sub- Servicers) for
the payment of taxes, assessments, Primary Hazard Insurance Policy premiums,
and
comparable items for the account of the Mortgagors, to the extent that the
Master Servicer customarily escrows for such amounts. Withdrawals of amounts
so
collected from a Servicing Account may be made only to (i) effect payment of
taxes, assessments, Primary Hazard Insurance Policy premiums and comparable
items; (ii) reimburse the Master Servicer (or a Sub-Servicer to the extent
provided in the related Sub-Servicing Agreement) out of related collections
for
any payments made pursuant to Sections 3.01 (with respect to taxes and
assessments) and 3.13 (with respect to Primary Hazard Insurance Policies);
(iii)
refund to Mortgagors any sums as may be determined to be overages; or (iv)
clear
and terminate the Servicing Account at the termination of this Agreement
pursuant to Section 9.01. As part of its servicing duties, the Master Servicer
or Sub-Servicers shall, if and to the extent required by law, pay to the
Mortgagors interest on funds in Servicing Accounts from its or their own funds,
without any reimbursement therefor.
|
SECTION
3.10.
|
Custodial
Account.
|
(a) The
Master Servicer shall establish and maintain one or more accounts (collectively,
the “Custodial Account”) in which the Master Servicer shall deposit or cause to
be deposited no later than the first Business Day after receipt or as and when
received from the Sub-Servicers, the following payments and collections received
or made by or on behalf of it subsequent to the Cut-off Date, or received by
it
prior to the Cut-off Date but allocable to a period subsequent thereto (other
than in respect of principal and interest on the Mortgage Loans due on or before
the Cut-off Date):
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, not including any portion
thereof representing interest on account of the related Servicing Fee
Rate;
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(iii) all
Insurance Proceeds, other than proceeds that represent reimbursement of costs
and expenses incurred by the Master Servicer in connection with presenting
claims under the related Insurance Policies, Liquidation Proceeds and REO
Proceeds;
(iv) all
proceeds of any Mortgage Loan or REO Property repurchased or purchased in
accordance with Sections 2.02, 2.04 or 9.01 and all amounts required to be
deposited in connection with the substitution of a Qualified Substitute Mortgage
Loan pursuant to Section 2.04;
(v) any
amounts required to be deposited in the Custodial Account pursuant to Section
3.12, 3.13 or 3.22; and
(vi) all
amounts transferred from the Certificate Account to the Custodial Account in
accordance with Sections 4.01(b).
For
purposes of the immediately preceding sentence, the Cut-off Date with respect
to
any Qualified Substitute Mortgage Loan shall be deemed to be the date of
substitution.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive.
In the event the Master Servicer shall deposit in the Custodial Account any
amount not required to be deposited therein, it may withdraw such amount from
the Custodial Account, any provision herein to the contrary notwithstanding.
The
Custodial Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other
series, and the other accounts of the Master Servicer.
(b) Funds
in
the Custodial Account may be invested in Permitted Instruments in accordance
with the provisions set forth in Section 3.12. The Master Servicer shall give
notice to the Trustee and the Depositor of the location of the Custodial Account
after any change thereof.
(c) Payments
in the nature of late payment charges, prepayment fees, assumption fees and
reconveyance fees received on the Mortgage Loans shall not be deposited in
the
Custodial Account, but rather shall be received and held by the Master Servicer
as additional servicing compensation.
|
SECTION
3.11.
|
Permitted
Withdrawals From the Custodial
Account.
|
The
Master Servicer may, from time to time as provided herein, make withdrawals
from
the Custodial Account of amounts on deposit therein pursuant to Section 3.10
that are attributable to the Mortgage Loans for the following
purposes:
(i) to
make
deposits into the Certificate Account in the amounts and in the manner provided
for in Section 4.01, such deposit to include interest collections on the
Mortgage Loans at the Net Mortgage Rate [and net of amounts reimbursed
therefrom];
(ii) to
pay to
itself, the Depositor, the Seller or any other appropriate person, as the case
may be, with respect to each Mortgage Loan that has previously been purchased,
repurchased or replaced pursuant to Sections 2.02, 2.04 or 9.01 all amounts
received thereon and not yet distributed as of the date of purchase, repurchase
or substitution;
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(iii) to
reimburse itself or any Sub-Servicer for Advances not previously reimbursed,
the
Master Servicer’s or any Sub-Servicer’s right to reimbursement pursuant to this
clause (iii) being limited to amounts received which represent Late Collections
(net of the related Servicing Fees) of Monthly Payments on Mortgage Loans with
respect to which such Advances were made and as further provided in Section
3.15;
(iv) to
reimburse or pay itself, the Trustee or the Depositor for expenses incurred
by
or reimbursable to the Master Servicer, the Trustee or the Depositor pursuant
to
Sections 3.22, 6.03, 8.05, 10.01(c) or 10.01(g), except as otherwise provided
in
such Sections;
(v) to
reimburse itself or any Sub-Servicer for costs and expenses incurred by or
reimbursable to it relating to the prosecution of any claims pursuant to Section
3.13 that are in excess of the amounts so recovered;
(vi) to
reimburse itself or any Sub-Servicer for unpaid Servicing Fees and unreimbursed
Servicing Advances, the Master Servicer’s or any Sub-Servicer’s right to
reimbursement pursuant to this clause (vi) with respect to any Mortgage Loan
being limited to late recoveries of the payments for which such advances were
made pursuant to Section 3.01 or Section 3.09 and any other related Late
Collections;
(vii) to
pay
itself as servicing compensation (in addition to the Servicing Fee), on or
after
each Distribution Date, any interest or investment income earned on funds
deposited in the Custodial Account for the period ending on such Distribution
Date, subject to Section 8.05;
(viii) to
reimburse itself or any Sub-Servicer for any Advance previously made which
itself has determined to be a Nonrecoverable Advance, provided that either
(a)
such Advance was made with respect to a delinquency that ultimately constituted
an Excess Special Hazard Loss, Excess Fraud Loss, Excess Bankruptcy Loss or
Extraordinary Loss, or (b) the Certificate Principal Balances of the Class
B
Certificates have been reduced to zero; and
(ix) to
clear
and terminate the Custodial Account at the termination of this Agreement
pursuant to Section 9.01.
The
Master Servicer shall keep and maintain separate accounting records on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Custodial Account pursuant to such clauses (ii), (iii),
(iv), (v), (vi), (vii) and (viii). Reconciliations will be prepared by the
Master Servicer for the related Collection Account within 30 calendar days
after
the bank statement cut-off date. All items requiring reconciliation will be
resolved within 90 calendar days of their original identification.
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In
connection with clause (viii) above, the Trustee shall notify the Master
Servicer if and when the Certificate Principal Balances of the Class B
Certificates have been reduced to zero.
|
SECTION
3.12.
|
Permitted
Instruments.
|
Any
institution maintaining the Custodial Account shall at the direction of the
Master Servicer invest the funds in such account in Permitted Instruments,
each
of which shall mature not later than the Business Day immediately preceding
the
Distribution Date next following the date of such investment (except that if
such Permitted Instrument is an obligation of the institution that maintains
such account, then such Permitted Instrument shall mature not later than such
Distribution Date) and shall not be sold or disposed of prior to its maturity.
All income and gain realized from any such investment as well as any interest
earned on deposits in the Custodial Account shall be for the benefit of the
Master Servicer. The Master Servicer shall deposit in the Custodial Account
(with respect to investments made hereunder of funds held therein) an amount
equal to the amount of any loss incurred in respect of any such investment
immediately upon realization of such loss without right of
reimbursement.
|
SECTION
3.13.
|
Maintenance
of Primary Mortgage Insurance and Primary Hazard
Insurance.
|
(a) The
Master Servicer shall not take, or permit any Sub-Servicer to take, any action
which would result in non-coverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Master Servicer
or Sub-Servicer, would have been covered thereunder. To the extent coverage
is
available, the Master Servicer shall keep or cause to be kept in full force
and
effect each such Primary Mortgage Insurance Policy until the principal balance
of the related Mortgage Loan secured by a Mortgaged Property is reduced to
75%
or less of the Collateral Value in the case of such a Mortgage Loan having
a
Loan-to-Value Ratio at origination in excess of 80%. The Master Servicer shall
not cancel or refuse to renew any such Primary Mortgage Insurance Policy, or
consent to any Sub-Servicer canceling or refusing to renew any such Primary
Mortgage Insurance Policy applicable to a Mortgage Loan subserviced by it,
that
is in effect at the date of the initial issuance of the Certificates and is
required to be kept in force hereunder unless the replacement Primary Mortgage
Insurance Policy for such canceled or non-renewed policy is maintained with
a
Qualified Insurer.
(b) In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Master Servicer agrees to present or to cause the related
Sub-Servicer to present, on behalf of the Master Servicer, the Sub-Servicer,
if
any, the Trustee and Certificateholders, claims to the insurer under any Primary
Mortgage Insurance Policies, in a timely manner in accordance with such
policies, and, in this regard, to take or cause to be taken such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policies respecting defaulted Mortgage Loans. Pursuant to Section
3.
10, any Insurance Proceeds collected by or remitted to the Master Servicer
under
any Primary Mortgage Insurance Policies shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.11.
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(c) The
Master Servicer shall cause to be maintained for each Mortgage Loan primary
hazard insurance with extended coverage on the related Mortgaged Property in
an
amount equal to the lesser of 100% of the replacement value of the improvements,
as determined by the insurance company, on such Mortgaged Property or the unpaid
principal balance of the Mortgage Loan. The Master Servicer shall also cause
to
be maintained on property acquired upon foreclosure, or deed in lieu of
foreclosure, of any Mortgage Loan, fire insurance with extended coverage in
an
amount equal to the replacement value of the improvements thereon. Pursuant
to
Section 3.10, any amounts collected by the Master Servicer under any such
policies (other than amounts to be applied to the restoration or repair of
the
related Mortgaged Property or property thus acquired or amounts released to
the
Mortgagor in accordance with the Master Servicer’s normal servicing procedures)
shall be deposited in the Custodial Account, subject to withdrawal pursuant
to
Section 3.11. Any cost incurred by the Master Servicer in maintaining any such
insurance shall not, for the purpose of calculating monthly distributions to
Certificateholders, be added to the amount owing under the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. It is understood
and agreed that no earthquake or other additional insurance is to be required
of
any Mortgagor or maintained on property acquired in respect of a Mortgage Loan
other than pursuant to such applicable laws and regulations as shall at any
time
be in force and as shall require such additional insurance. When the
improvements securing a Mortgage Loan are located at the time of origination
of
such Mortgage Loan in a federally designated special flood hazard area, the
Master Servicer shall cause flood insurance (to the extent available) to be
maintained in respect thereof. Such flood insurance shall be in an amount equal
to the lesser of (i) the replacement value of the improvements, which are part
of such Mortgaged Property on a replacement cost basis and (ii) the maximum
amount of such insurance available for the related Mortgaged Property under
the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
In
the
event that the Master Servicer shall obtain and maintain a blanket fire
insurance policy with extended coverage insuring against hazard losses on all
of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first two sentences of this Section 3.13, it
being understood and agreed that such policy may contain a deductible clause,
in
which case the Master Servicer shall, in the event that there shall not have
been maintained on the related Mortgaged Property a policy complying with the
first two sentences of this Section 3.13 and there shall have been a loss which
would have been covered by such policy, deposit in the Certificate Account
the
amount not otherwise payable under the blanket policy because of such deductible
clause. Any such deposit by the Master Servicer shall be made on the Certificate
Account Deposit Date next preceding the Distribution Date which occurs in the
month following the month in which payments under any such policy would have
been deposited in the Custodial Account. In connection with its activities
as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees
to
present, on behalf of itself, the Trustee and Certificateholders, claims under
any such blanket policy.
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|
SECTION
3.14.
|
Enforcement
of Due-on-Sale Clauses; Assumption
Agreements.
|
The
Master Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether
by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note or the Mortgage),
exercise or cause to be exercised its rights to accelerate the maturity of
such
Mortgage Loan under any “due-on-sale” clause applicable thereto; provided,
however, that the Master Servicer shall not exercise any such rights if it
reasonably believes that it is prohibited by law from doing so or if such
enforcement will adversely affect or jeopardize required coverage under the
Insurance Policies. If the Master Servicer is unable to enforce such “due-
on-sale” clause (as provided in the previous sentence) or if no “due-on-sale”
clause is applicable, the Master Servicer or the Sub-Servicer will enter into
an
assumption and modification agreement with the Person to whom such property
has
been conveyed or is proposed to be conveyed, pursuant to which such Person
becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon; provided, however,
that the Master Servicer shall not enter into any assumption and modification
agreement if the coverage provided under the Primary Insurance Policy, if any,
would be impaired by doing so. The Master Servicer is also authorized to enter
into a substitution of liability agreement with such Person, pursuant to which
the original Mortgagor is released from liability and such Person is substituted
as the Mortgagor and becomes liable under the Mortgage Note, if the Master
Servicer shall have determined in good faith that such substitution will not
adversely affect the collectability of the Mortgage Loan. Any fee collected
by
or on behalf of the Master Servicer for entering into an assumption or
substitution of liability agreement will be retained by or on behalf of the
Master Servicer as additional servicing compensation. In connection with any
such assumption, no material term of the Mortgage Note (including but not
limited to the Mortgage Rate, the amount of the Monthly Payment and any other
term affecting the amount or timing of payment on the Mortgage Loan) may be
changed. The Master Servicer shall not enter into any substitution or assumption
if such substitution or assumption would constitute a “significant modification”
effecting an exchange or reissuance of such Mortgage Loan under the Code (or
final, temporary or proposed Treasury regulations promulgated thereunder) and
cause 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. The Master Servicer shall notify the
Trustee that any such substitution or assumption agreement has been completed
by
forwarding to the Trustee the original copy of such substitution or assumption
agreement, which copy shall be added to the related Mortgage File and shall,
for
all purposes, be considered a part of such Mortgage File to the same extent
as
all other documents and instruments constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Master
Servicer shall not be deemed to be in default, breach or any other violation
of
its obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or any assumption that the Master Servicer may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this Section
3.14, the term “assumption” is deemed to also include a sale of a Mortgaged
Property that is not accompanied by an assumption or substitution of liability
agreement.
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|
SECTION
3.15.
|
Realization
Upon Defaulted Mortgage Loans.
|
The
Master Servicer shall exercise reasonable efforts, consistent with the
procedures that the Master Servicer would use in servicing loans for its own
account, to foreclose upon or otherwise comparably convert (which may include
an
REO Acquisition) the ownership of properties securing such of the Mortgage
Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07, and which are not released from the Trust Fund pursuant to any
other provision hereof. The Master Servicer shall use reasonable efforts to
realize upon such defaulted Mortgage Loans in such manner as will maximize
the
receipt of principal and interest by Certificateholders, taking into account,
among other things, the timing of foreclosure proceedings. The foregoing is
subject to the provisions that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Master Servicer shall not
be
required to expend its own funds toward the restoration of such property unless
it shall determine in (i) that such restoration will increase the net proceeds
of liquidation of the related Mortgage Loan to Certificateholders after
reimbursement to itself for such expenses, and (ii) that such expenses will
be
recoverable by the Master Servicer through Insurance Proceeds or Liquidation
Proceeds from the related Mortgaged Property, as contemplated in Section 3.11.
The Master Servicer shall be responsible for all other costs and expenses
incurred by it in any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof from the related Mortgaged Property, as
contemplated in Section 3.11.
The
proceeds of any Cash Liquidation or REO Disposition, as well as any recovery
resulting from a partial collection of Insurance Proceeds or Liquidation
Proceeds or any income from an REO Property, will be applied in the following
order of priority: first, to reimburse the Master Servicer or any Sub- Servicer
for any related unreimbursed Servicing Advances, pursuant to Section 3.11 (vi)
or 3.22; second, to accrued and unpaid interest on the Mortgage Loan or REO
Imputed Interest, at the Mortgage Rate, to the date of the Cash Liquidation
or
REO Disposition, or to the Due Date prior to the Distribution Date on which
such
amounts are to be distributed if not in connection with a Cash Liquidation
or
REO Disposition; and third, as a recovery of principal of the Mortgage Loan.
If
the amount of the recovery so allocated to interest is less than a full recovery
thereof, that amount will be allocated as follows: first, on a pro rata basis,
to unpaid Servicing Fees; and second, to interest at the related Net Mortgage
Rate. The portion of the recovery so allocated to unpaid Servicing Fees shall
be
reimbursed to the Master Servicer or any Sub-Servicer pursuant to Section
3.11(vi). The portions of the recovery so allocated to interest at the related
Net Mortgage Rate and to principal of the Mortgage Loan shall be applied as
follows: first, to reimburse the Trustee for any unpaid Trustee’s Fees, second,
to reimburse the Master Servicer or any Sub-Servicer for any related
unreimbursed Advances in accordance with Section 3. 1 31 (iii) or 3.22, and
third, for distribution in accordance with the provisions of Section 4.01(b)
and
4.01(c).
|
SECTION
3.16.
|
Trustee
to Cooperate; Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer
of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Master Servicer will immediately notify the Trustee by a
certification (which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment which
are
required to be deposited in the Custodial Account pursuant to Section 3.10
have
been or will be so deposited) of a Servicing Officer and shall request delivery
to it of the Mortgage File in the form of the Request for Release attached
hereto as Exhibit F-2. Upon receipt of such certification and request, the
Trustee shall promptly release the related Mortgage File to the Master Servicer.
Subject to the receipt by the Master Servicer of the proceeds of such payment
in
full and the payment of all related fees and expenses, the Master Servicer
shall
arrange for the release to the Mortgagor of the original cancelled Mortgage
Note. The Master Servicer shall provide for preparation of the appropriate
instrument of satisfaction covering any Mortgage Loan which pays in full and
the
Trustee shall cooperate in the execution and return of such instrument to
provide for its delivery or recording as may be required. All other documents
in
the Mortgage File shall be retained by the Master Servicer to the extent
required by applicable law. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Custodial Account or the Certificate Account.
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From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under the Insurance Policies
or
any other insurance policy relating to the Mortgage Loan, the Trustee shall,
upon request of the Master Servicer and delivery to the Trustee of a Request
for
Release in the form attached hereto as Exhibit F-1, release the related Mortgage
File to the Master Servicer, and the Trustee shall execute such documents as
the
Master Servicer shall prepare and request as being necessary to the prosecution
of any such proceedings. Such Request for Release shall obligate the Master
Servicer to return each document previously requested from the Mortgage File
to
the Trustee when the need therefor by the Master Servicer no longer exists,
unless the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Custodial Account
or
the Mortgage File or such document has been delivered to an attorney, or to
a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure
of
the Mortgaged Property either judicially or non-judicially, and the Master
Servicer has delivered to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into the
Custodial Account have been or will be so deposited, or that such Mortgage
Loan
has become an REO Property, the servicing receipt shall be released by the
Trustee to the Master Servicer.
Upon
written request of a Servicing Officer, the Trustee shall execute and deliver
to
the Master Servicer any court pleadings, requests for trustee’s sale or other
documents prepared by the Master Servicer that are necessary to the foreclosure
or trustee’s sale in respect of a Mortgaged Property or to any legal action
brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or
rights provided by the Mortgage Note or Mortgage or otherwise available at
law
or in equity. Each such request that such pleadings or documents be executed
by
the Trustee shall include a certification as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee’s sale.
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|
SECTION
3.17.
|
Servicing
Compensation.
|
As
compensation for its activities hereunder, the Master Servicer shall be entitled
to retain, from deposits to the Custodial Account of amounts representing
payments or recoveries of interest, the Servicing Fees with respect to each
Mortgage Loan (less any portion of such amounts retained by any Sub-Servicer).
In addition, the Master Servicer shall be entitled to recover unpaid Servicing
Fees out of related Late Collections to the extent permitted in
Section 3.11.
The
Master Servicer also shall be entitled pursuant to Section 3.11 to receive
from
the Custodial Account, as additional servicing compensation interest or other
income earned on deposits therein, as well as any prepayment fees, assumption
fees, late payment fees and reconveyance fees. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including payment of the premiums for any Primary Mortgage
Insurance Policy or blanket policy insuring against hazard losses pursuant
to
Section 3.13, payment of the servicing compensation of the Sub-Servicer to
the
extent not retained by it), and shall not be entitled to reimbursement therefor
except as specifically pro vided in Section 3.11. The Servicing Fee may not
be
transferred in whole or in part except in connection with the transfer of all
of
the Master Servicer’s responsibilities and obligations under this
Agreement.
|
SECTION
3.18.
|
Maintenance
of Certain Servicing Policies.
|
During
the term of its service as Master Servicer, the Master Servicer shall maintain
in force (i) a policy or policies of insurance covering errors and omissions
in
the performance of its obligations as servicer hereunder and (ii) a fidelity
bond in respect of its officers, employees or agents. Each such policy or
policies and bond shall, together, comply with the requirements from time to
time of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac for persons performing servicing for mortgage
loans purchased by such corporation. The Master Servicer shall prepare and
present, on behalf of itself, the Trustee and Certificateholders, claims under
any such errors and omissions policy or policies or fidelity bond in a timely
fashion in accordance with the terms of such policy or bond, and upon the filing
of any claim on any policy or bond described in this Section, the Master
Servicer shall promptly notify the Trustee of any such claims and the Trustee
shall notify the Rating Agency of such claim.
|
SECTION
3.19.
|
Annual
Statement as to Compliance.
|
Not
later
than February 28 of each calendar year beginning in 2007, the Master Servicer
shall deliver to the Depositor and the Trustee an Officer’s Certificate (an
“Annual Statement of Compliance”) stating, as to the signer thereof, that (i) a
review of the activities of such Servicer during the preceding calendar year
and
of the performance of the Master Servicer under this Agreement or other
applicable servicing agreement has been made under such officer’s supervision,
and (ii) to the best of such officer’s knowledge, based on such review, the
Master Servicer has fulfilled all its obligations under this Agreement or other
applicable servicing agreement in all material respects throughout such year,
or, if there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature
and
status of cure provisions thereof. Such Annual Statement of Compliance shall
contain no restrictions or limitations on its use. In the event that the Master
Servicer has delegated any servicing responsibilities with respect to the
Mortgage Loans serviced by it to a Subservicer, the Master Servicer shall
deliver an officer's certificate of the Subservicer as described above as to
each Subservicer as and when required with respect to the Master
Servicer.
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If
the
Master Servicer cannot deliver the related Annual Statement of Compliance by
February 28th of such year, the Trustee, at its sole option, may permit a cure
period for the Master Servicer to deliver such Annual Statement of Compliance,
but in no event later than March 10th of such year.
Failure
of the Master Servicer to timely comply with this Section 3.19 shall be deemed
an Event of Default, automatically, without notice and without any cure period,
and the Trustee may, in addition to whatever rights the Trustee may have under
this Agreement and at law or equity or to damages, including injunctive relief
and specific performance, terminate all the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans serviced by
it
and the proceeds thereof without compensating the Master Servicer for the same.
This paragraph shall supercede any other provision in this Agreement or any
other agreement to the contrary.
|
SECTION
3.20.
|
Assessments
of Compliance and Attestation
Reports.
|
On
and
after January 1, 2006, the Master Servicer shall service and administer the
related Mortgage Loans in accordance with all applicable requirements of the
Servicing Criteria. The Master Servicer shall deliver to the Trustee and the
Depositor on or before February 28 of each calendar year beginning in 2007,
a
report (an “Assessment of Compliance”) reasonably satisfactory to the Trustee
regarding the Master Servicer’s assessment of compliance with the Servicing
Criteria during the preceding calendar year as required by Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB, which as of the
date
hereof, require a report by an authorized officer of the related Servicer that
contains the following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Master Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria to
assess compliance with the Servicing Criteria applicable to the Master
Servicer;
(c) An
assessment by such officer of the Master Servicer’s compliance with the
applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on
the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the Master Servicer, that are backed by the same
asset type as the Mortgage Loans;
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(d) A
statement that a registered public accounting firm has issued an attestation
report on the Master Servicer’s Assessment of Compliance for the period
consisting of the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Master Servicer, which statement shall be based on the activities it
performs with respect to asset-backed securities transactions taken as a whole
involving the Master Servicer, that are backed by the same asset type as the
Mortgage Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on a
certification substantially in the form of Exhibit CC hereto delivered to the
Trustee and the Depositor concurrently with the execution of this
Agreement.
On
or
before February 28 of each calendar year beginning in 2007, the Master Servicer
shall furnish to the Trustee and the Depositor a report (an “Attestation
Report”) by a registered public accounting firm that attests to, and reports on,
the Assessment of Compliance made by the Master Servicer, as required by Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, which
Attestation Report must be made in accordance with standards for attestation
reports issued or adopted by the Public Company Accounting Oversight Board.
The
Master
Servicer shall
cause any subservicer, and each subcontractor determined by the Master Servicer
to be “participating in the servicing function” within the meaning of Item 1122
of Regulation AB, to deliver to the Trustee and the Depositor an assessment
of
compliance and accountants’ attestation.
If
the
Master Servicer cannot deliver the related Assessment of Compliance or
Attestation Report by February 28th of such year, the Trustee, at its sole
option, may permit a cure period for the Master Servicer to deliver such
Assessment of Compliance or Attestation Report, but in no event later than
March
10th of such year.
The
Trustee shall also provide an Assessment of Compliance and Attestation Report,
as and when provided above, which shall at a minimum address each of the
Servicing Criteria specified on Exhibit N hereto which are indicated as
applicable to the “trustee” or “securities administrator.” In addition, the
Trustee shall cause the Custodian to deliver to the Trustee and the Depositor
an
Assessment of Compliance and Attestation Report, as and when provided above,
which shall at a minimum address each of the Servicing Criteria specified on
Exhibit N hereto which are indicated as applicable to a “custodian.”
Notwithstanding the foregoing, as to any Custodian, an Assessment of Compliance
is not required to be delivered unless it is required as part of a Form 10-K
with respect to the Trust Fund.
Failure
of the Master Servicer to timely comply with this Section 3.20 shall be deemed
an Event of Default, automatically, without notice and without any cure period,
and the Trustee may, in addition to whatever rights the Trustee may have under
this Agreement and at law or equity or to damages, including injunctive relief
and specific performance, terminate all the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans serviced by
it
and the proceeds thereof without compensating the Master Servicer for the same.
This paragraph shall supercede any other provision in this Agreement or any
other agreement to the contrary.
-48-
|
SECTION
3.21.
|
Access
to Certain Documentation.
|
(a) The
Master Servicer shall provide to the OTS, the FDIC and other federal banking
regulatory agencies, and their respective examiners, access to the documentation
regarding the Mortgage Loans required by applicable regulations of the OTS,
the
FDIC and such other agencies. Such access shall be afforded without charge,
but
only upon reasonable and prior written request and during normal business hours
at the offices of the Master Servicer designated by it. Nothing in this Section
shall derogate from the obligation of the Master Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Master Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of this
section.
(b) The
Master Servicer shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer in respect of its rights and obligations hereunder and access
to
officers of the Master Servicer responsible for such obligations. Upon request,
the Master Servicer shall furnish the Depositor and the Trustee with its most
recent financial statements and such other information as the Master Servicer
possesses regarding its business, affairs, property and condition, financial
or
otherwise to the extent related to the servicing of the Mortgage Loans. Payments
on the Mortgage Loans, including any Payoffs, made in accordance with the
related Mortgage File will be entered into the Master Servicer’s set of records
no more than two Business Days after receipt, and allocated to principal or
interest as specified in the related Mortgage File. The Depositor may, but
is
not obligated to, enforce the obligations of the Master Servicer hereunder
and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer hereunder or exercise the rights
of
the Master Servicer hereunder; provided that the Master Servicer shall not
be
relieved of any of its obligations hereunder by virtue of such performance
by
the Depositor or its designee. The Depositor shall not have any responsibility
or liability for any action or failure to act by the Master Servicer and is
not
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
|
SECTION
3.22.
|
Title,
Conservation and Disposition of REO
Property.
|
This
Section shall apply only to REO Properties acquired for the account of the
Trust
Fund, and shall not apply to any REO Property relating to a Mortgage Loan which
was purchased or repurchased from the Trust Fund pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the deed
or certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the Certificateholders. The Master Servicer, on behalf of the Trust
Fund, shall either sell any REO Property within two years after the Trust Fund
acquires ownership of such REO Property for purposes of Section 86OG(a)(8)
of
the Code or, at the expense of the Trust Fund, request an extension of the
two-year grace period, more than 60 days before the day on which the two-year
grace period would otherwise expire, unless the Master Servicer has delivered
to
the Trustee an Opinion of Counsel, addressed to the Trustee and the Master
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to two years after its acquisition will not result in the imposition
on the Trust Fund of taxes on “prohibited transactions” thereof, as defined in
Section 86OF of the Code, or cause the Trust Fund to fail to qualify as a REMIC
under federal law at any time that any Certificates are outstanding. The Master
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 86OG(a)(8) or result in the
receipt by the Trust Fund of any “income from non- permitted assets” within the
meaning of Section 86OF(a)(2)(B) of the Code or any “net income from foreclosure
property” which is subject to taxation under the REMIC Provisions. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall either itself
or through an agent selected by the Master Servicer protect and conserve such
REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Certificateholders, rent
the
same, or any part thereof, as the Master Servicer deems to be in the best
interest of the Certificateholders for the period prior to the sale of such
REO
Property.
-49-
The
Master Servicer shall segregate and hold all funds collected and received in
connection with the operation of any REO Property separate and apart from its
own funds and general assets. The Master Servicer shall deposit, or cause to
be
deposited, on a daily basis in the Custodial Account all revenues received
with
respect to the REO Properties, net of any directly related expenses incurred
or
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property.
If
as of
the date of acquisition of title to any REO Property there remain outstanding
unreimbursed Servicing Advances with respect to such REO Property or any
outstanding Advances allocated thereto the Master Servicer, upon an REO
Disposition, shall be entitled to reimbursement for any related unreimbursed
Servicing Advances and any unreimbursed related Advances as well as any unpaid
Servicing Fees from proceeds received in connection with the REO Disposition,
as
further provided in Section 3.15.
Subject
to the first paragraph of this Section 3.22, the REO Disposition shall be
carried out by the Master Servicer at such price and upon such terms and
conditions as the Master Servicer shall determine to be in the best economic
interest of the Trust Fund.
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).
The
Master Servicer shall deposit the proceeds from the REO Disposition, net of
any
payment to the Master Servicer as provided above, in the Custodial Account
upon
receipt thereof for distribution in accordance with Section 4.01, including
any
such net proceeds which are in excess of the applicable Stated Principal Balance
plus all unpaid REO Imputed Interest thereon through the date of the REO
Disposition.
-50-
Notwithstanding
the foregoing provisions of this Section 3.22, with respect to any Mortgage
Loan
as to which the Master Servicer has received notice of, or has actual knowledge
of, the presence of any toxic or hazardous substance on the Mortgaged Property,
the Master Servicer shall promptly request the Trustee and the Depositor to
provide directions and instructions with respect to such Mortgage Loan and
shall
act in accordance with any such directions and instructions jointly provided
by
the Trustee and the Depositor. Notwithstanding the preceding sentence of this
Section 3.22, with respect to any Mortgage Loan described by such sentence,
the
Master Servicer shall not, on behalf of the Trustee, either (i) obtain title
to
the related Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, the related Mortgaged
Property, unless (i) the Depositor and the Trustee jointly direct the Master
Servicer to take such action and (ii) either (A) the Master Servicer has, at
least 30 days prior to taking such action, obtained and delivered to the
Depositor an environmental audit report prepared by a Person who regularly
conducts environmental audits using customary industry standards or (B) the
Depositor has directed the Master Servicer not to obtain an environmental audit
report. If the Trustee and the Depositor have not jointly provided directions
and instructions to the Master Servicer in connection with any such Mortgage
Loan within 30 days of a request by the Master Servicer for such directions
and
instructions, then the Master Servicer shall take such action as it deems to
be
in the best economic interest of the Trust Fund (other than proceeding against
the Mortgaged Property) and is hereby authorized at such time as it deems
appropriate to release such Mortgaged Property from the lien of the related
Mortgage.
The
cost
of the environmental audit report contemplated by this Section 3.22 shall be
advanced by the Master Servicer as an expense of the Trust Fund, and the Master
Servicer shall be reimbursed therefor from the Custodial Account as provided
in
Section 3.11, any such right of reimbursement being prior to the rights of
the
Certificateholders to receive any amount in the Custodial Account.
If
the
Master Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property in compliance with applicable environmental laws, or
to
take such action with respect to the containment, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Master Servicer shall
take such action as it deems to be in the best economic interest of the Trust
Fund. The cost of any such compliance, containment, clean-up or remediation
shall be advanced by the Master Servicer as an expense of the Trust Fund, and
the Master Servicer shall be entitled to be reimbursed therefor from the
Custodial Account as provided in Section 3.11, any such right of reimbursement
being prior to the rights of the Certificateholders to receive any amount in
the
Custodial Account.
-51-
|
SECTION
3.23.
|
Additional
Obligations of the Master Servicer.
|
On
each
Certificate Account Deposit Date, the Master Servicer shall deliver to the
Trustee for deposit in the Certificate Account from its own funds and without
any right of reimbursement therefor, a total amount equal to the aggregate
of
the Prepayment Interest Shortfalls for such Distribution Date; provided that
the
Master Servicer’s obligations under this subsection on any Distribution Date
shall not be more than the total amount of its master servicing compensation
payable in such month.
|
SECTION
3.24.
|
Additional
Obligations of the Depositor.
|
The
Depositor agrees that on or prior to the tenth day after the Closing Date,
the
Depositor shall provide the Trustee with a written notification, substantially
in the form of Exhibit J attached hereto, relating to each Class of
Certificates, setting forth (i) in the case of each Class of such Certificates,
(a) if less than 10% of the aggregate Certificate Principal Balance of such
Class of Certificates has been sold as of such date, the value calculated
pursuant to clause (b)(iii) of Exhibit J hereto, or, (b) if 10% or more of
such
Class of Certificates has been sold as of such date but no single price is
paid
for at least 10% of the aggregate Certificate Principal Balance of such Class
of
Certificates, then the weighted average price at which the Certificates of
such
Class were sold and the aggregate percentage of Certificates of such Class
sold,
(c) the first single price at which at least 10% of the aggregate Certificate
Principal Balance of such class of Certificates was sold or, (d) if any
Certificates of each Class of Certificates are retained by the Depositor or
an
affiliated corporation, or are delivered to the Seller, the fair market value
of
such Certificates as of the Closing Date, (ii) the prepayment assumption used
in
pricing the Certificates, and (iii) such other information as to matters of
fact
as the Trustee may reasonably request to enable it to comply with its reporting
requirements with respect to each Class of such Certificates to the extent
such
information can in the good faith judgment of the Depositor be determined by
it.
|
SECTION
3.25.
|
Intention
of the Parties and Interpretation.
|
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.19, 3.20,
Section 8.11 and this Section 3.25 of this Agreement is to facilitate compliance
by the Seller and the Depositor with the provisions of Regulation AB promulgated
by the Commission under the 1934 Act (17 C.F.R. §§ 229.1100 - 229.1123), 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 Seller or the Depositor for delivery of additional or different
information as the Seller 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.
-52-
ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS
|
SECTION
4.01.
|
Certificate
Account; Distributions.
|
(a) The
Trustee shall establish and maintain a Certificate Account, in which the Master
Servicer shall cause to be deposited on behalf of the Trustee on or before
3:00
P.M. New York time on each Certificate Account Deposit Date by wire transfer
of
immediately available funds an amount equal to the sum of (i) any Advance for
the immediately succeeding Distribution Date, (ii) any amount required to be
deposited in the Certificate Account pursuant to Sections 3.11, 3.13, 3.23
or
4.03(b) and (iii) all other amounts constituting or, if not otherwise applicable
to the payment of the Trustee’s Fee, that would constitute the Available
Distribution Amount for the immediately succeeding Distribution Date. The
Trustee shall transfer from the Certificate Account to itself, the Trustee’s Fee
on each Certificate Account Deposit Date. Such amounts do not constitute part
of
the Available Distribution Amount.
(b) On
each
Distribution Date the Trustee shall, distribute to the Master Servicer, in
the
case of a distribution pursuant to Section 4.01(b)(iii), and to each
Certificateholder of record on the next preceding Record Date (other than as
provided in Section 9.01 respecting the final distribution) either in
immediately available funds (by wire transfer or otherwise) to the account
of
such Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder has so notified the Trustee at least 5
Business Days prior to the related Record Date and such Certificateholder is
the
registered owner of Certificates the aggregate Initial Certificate Principal
Balance of which is not less than $2,500,000 (or, with respect to the Class
A-5
and Class A-7 Certificates, is the registered owner of an initial Notional
Amount of not less than $10,000,000 of each such class), or otherwise by check
mailed to such Certificateholder at the address of such Holder appearing in
the
Certificate Register, such Certificateholder’s share (based on the aggregate of
the Percentage Interests represented by Certificates of the applicable Class
held by such Holder) of the following amounts, in the following order of
priority, in each case to the extent of the Available Distribution
Amount:
(i) to
the
Class A Certificateholders on a pro rata basis based on Accrued Certificate
Interest payable thereon, Accrued Certificate Interest on such Classes of
Certificates for such Distribution Date and to the extent not previously paid,
for all prior Distribution Dates;
(ii) to
the
Class A Certificateholders (other than the Class A-5 Certificateholders and
the
Class A-7 Certificateholders), in the priorities and amounts set forth in
Sections 4.01(c) and (d), the sum of the following (applied to reduce the
Certificate Principal Balances of such Class A Certificates, as
applicable):
(A) the
Senior Percentage for such Distribution Date times the sum of the
following:
-53-
(1) the
principal portion of each Monthly Payment due during the related Due Period
on
each Outstanding Mortgage Loan, whether or not received on or prior to the
related Determination Date, minus the principal portion of any Debt Service
Reduction which together with other Bankruptcy Losses exceeds the Bankruptcy
Amount;
(2) the
Stated Principal Balance of any Mortgage Loan purchased during the related
Prepayment Period and the amount of any shortfall deposited in the Custodial
Account in connection with the substitution of a Deleted Mortgage Loan pursuant
to Section 2.04 during the related Prepayment Period; and
(3) the
principal portion of all other unscheduled collections (other than Principal
Prepayments and amounts received in connection with a Cash Liquidation or REO
Disposition) received during the related Prepayment Period, including, without
limitation, Insurance Proceeds, Liquidation Proceeds and REO Proceeds, to the
extent applied by the Master Servicer as recoveries of principal of the related
Mortgage Loan pursuant to Section 3.15;
(B) with
respect to each Mortgage Loan for which a Cash Liquidation or a REO Disposition
occurred during the related Prepayment Period and did not result in any Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary Losses, an amount equal to the lesser of (a) the Senior Percentage
for such Distribution Date times the Stated Principal Balance of such Mortgage
Loan and (b) the Senior Accelerated Distribution Percentage for such
Distribution Date times the related unscheduled collections (including without
limitation Insurance Proceeds, Liquidation Proceeds and REO Proceeds) to the
extent applied by the Master Servicer as recoveries of principal of the related
Mortgage Loan pursuant to Section 3.15;
(C) the
Senior Accelerated Distribution Percentage for such Distribution Date times
the
aggregate of all Principal Prepayments in Full and Curtailments received in
the
related Prepayment Period; and
(D) any
amounts described in clauses (A), (B) and (C) of this Section 4.01 (b)(ii),
as
determined for any previous Distribution Date, which remain unpaid after
application of amounts previously distributed pursuant to this clause (D) to
the
extent that such amounts are not attributable to Realized Losses which have
been
allocated to the Class B Certificates;
(iii) if
the
Certificate Principal Balances of the Class B Certificates have not been reduced
to zero, to the Master Servicer or a Sub-Servicer, to the extent of and in
reimbursement for any Advances previously made with respect to any Mortgage
Loan
or REO Property which remain unreimbursed in whole or in part following the
Cash
Liquidation or REO Disposition of such Mortgage Loan or REO Property, minus
any
such Advances that were made with respect to delinquencies that ultimately
constituted Excess Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses or Extraordinary Losses;
-54-
(iv) to
the
Holders of the Class B Certificates, the Accrued Certificate Interest thereon
for such Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date, except as provided
below;
(v) to
the
Holders of the Class B Certificates, an amount equal to the Subordinate
Principal Distribution Amount for such Class of Certificates for such
Distribution Date, applied in reduction of the Certificate Principal Balance
of
the Class B Certificates;
(vi) to
the
Class A Certificateholders (other than the Class A-5 and Class A-7
Certificateholders) in the priority set forth in Section 4.01(c), the portion,
if any, of the Available Distribution Amount remaining after the foregoing
distributions, applied to reduce the Certificate Principal Balances of such
Class A Certificates, but in no event more than the sum of the outstanding
Certificate Principal Balances of the Class A Certificates (other than the
Class
A-5 and Class A-7 Certificates) and thereafter applied to reduce the Certificate
Principal Balance of the Class B Certificates, but in no event more than the
outstanding Certificate Principal Balance of the Class B Certificates;
and
(vii) to
the
Class R Certificateholders, the balance, if any, of the Available Distribution
Amount.
(c) Distributions
of principal on the Class A Certificates (other than the Class A-5 and Class
A-7
Certificates) on each Distribution Date occurring prior to the occurrence of
the
Credit Support Depletion Date will be made as follows:
(i) first,
to
the Class A-1 Certificates and Class A-6 Certificates, with the amount to be
distributed allocated as between such classes on a pro rata basis, until the
Certificate Principal Balance of each such Class has been reduced to
zero;
(ii) second,
to the Class A-2 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero;
(iii) third,
to
the Class A-3 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; and
(iv) fourth,
to the Class A-4 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero.
(d) On
each
Distribution Date occurring on or after the Credit Support Depletion Date,
all
priorities relating to sequential distributions in respect of principal among
the various classes of Senior Certificates will be disregarded, and the Senior
Principal Distribution Amount will be distributed to all classes of Senior
Certificates pro rata in accordance with their respective outstanding
Certificate Principal Balances; provided, that the aggregate amount
distributable to the Class A-1, Class A-5 and Class A-6 Certificates (the
“Tiered Certificates”) in respect of Accrued Certificate Interest thereon and in
respect of their pro rata portion of the Senior Principal Distribution Amount
shall be distributed among the Tiered Certificates in the amounts and priority
as follows: first, to the Class A-1 Certificates and the Class A-5 Certificates,
up to an amount equal to, and pro rata based on, the Accrued Certificate
Interest thereon; second to the Class A-1 Certificates, up to an amount equal
to
the Optimal Principal Distribution Amount thereof, in reduction of the
Certificate Principal Balances thereof; third to the Class A-6 Certificates,
up
to an amount equal to the Accrued Certificate Interest thereon; and fourth
to
the Class A-6 Certificates the remainder of the amount so distributable among
the Tiered Certificates.
-55-
(e) The
Trustee shall, upon written request from the Master Servicer, invest or cause
the institution maintaining the Certificate Account to invest the funds in
the
Certificate Account in Permitted Instruments designated in the name of the
Trustee for the benefit of the Certificateholders, which shall mature not later
than the Business Day next preceding the Distribution Date next following the
date of such investment (except that (i) any investment in obligations of the
institution with which the Certificate Account is maintained may mature on
such
Distribution Date and (ii) any other investment may mature on such Distribution
Date if the Trustee shall agree to advance funds on such Distribution Date
to
the Certificate Account in the amount payable on such investment on such
Distribution Date, pending receipt thereof to the extent necessary to make
distributions on the Certificates) and shall not be sold or disposed of prior
to
maturity. All income and gain realized from any such investment shall be for
the
benefit of the Master 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 Certificate Account by the Master Servicer
out of its own funds immediately as realized without right of
reimbursement.
|
SECTION
4.02.
|
Statements
to Certificateholders.
|
On
each
Distribution Date the Trustee shall forward or cause to be forwarded by mail
to
each Holder of a Certificate and to the Depositor and the Master Servicer a
statement as to such distribution setting forth the following information as
to
each Class of Certificates to the extent applicable:
(i)
(a) the
amount of such distribution to the Certificateholders of such Class applied
to
reduce the Certificate Principal Balance thereof, and (b) the aggregate amount
included therein representing Principal Prepayments;
(ii) the
total
cash flows received and the general sources thereof;
(iii) the
applicable record dates, accrual periods, determination dates for calculating
distributions and general distribution dates;
(iv) the
amount of such distribution to Holders of each Class allocable to
interest;
(v) [the
amount of any net swap payment payable to the Derivative Administrator, any
Net
Swap Payment payable to the Swap Provider, any swap termination payment payable
to the derivative administrator and any Swap Termination Payment payable to
the
Swap Provider;]
-56-
(vi) if
the
distribution to the Certificateholders of such Class is less than the full
amount that would be distributable to such Certificateholders if there were
sufficient funds available therefor, the amount of the shortfall;
(vii) the
amount of any Advance by the Master Servicer pursuant to Section 4.04 (including
the general purpose of such Advance), the aggregate amount of unreimbursed
Advances at the close of business on the Distribution Date, and the general
source of funds for reimbursement;
(viii) the
number and aggregate Stated Principal Balance of the Mortgage Loans after giving
effect to the distribution of principal on such Distribution Date;
(ix) the
aggregate Certificate Principal Balance of each Class of Certificates, after
giving effect to the amounts distributed on such Distribution Date, separately
identifying any reduction thereof due to Realized Losses other than pursuant
to
an actual distribution of principal;
(x) the
related Subordinate Principal Distribution Amount;
(xi) the
related amount of Servicing Fees paid to or retained by the Master
Servicer;
(xii) on
the
basis of the most recent reports furnished to it by Sub-Servicers, the number
and aggregate principal balances of Mortgage Loans that are delinquent (A)
one
month, (B) two months and (C) three months, and the number and aggregate
principal balance of Mortgage Loans that are in foreclosure;
(xiii) the
number, aggregate principal balance and book value of any REO
Properties;
(xiv) the
aggregate Accrued Certificate Interest remaining unpaid, if any, for each Class
of Certificates, after giving effect to the distribution made on such
Distribution Date;
(xv) the
Special Hazard Amount, Fraud Loss Amount and Bankruptcy Amount as of the close
of business on such Distribution Date and a description of any change in the
calculation of such amounts;
(xvi) the
Pass-Through Rate on the Class A-7 Certificates for such Distribution
Date;
(xvii) the
occurrence of the Credit Support Depletion Date;
(xviii) the
Senior Accelerated Distribution Percentage applicable to such
distribution;
(xix) the
Senior and Class B Percentages for such Distribution Date;
-57-
(xx) the
aggregate amount of Realized Losses allocated to the Certificates on such
Distribution Date;
(xxi) the
aggregate amount of any recoveries on previously foreclosed loans from the
Seller due to a breach of representation or warranty;
(xxii) if
applicable, material modifications, extensions or waivers to Mortgage Loan
terms, fees, penalties or payments during the preceding calendar month or that
have become material over time;
(xxiii) updated
pool composition data including the following with respect to each Loan Group:
average loan balance, weighted average mortgage rate, weighted average
loan-to-value ratio at origination, weighted average FICO at origination
weighted average remaining term; and [NOTE - Item 1121(a)(8) requires updated
pool composition information, the foregoing is a suggestion of what to
provide]
(xxiv) information
about any additions of, substitutions for or removal of any Mortgage Loans
from
the Trust Fund, and any changes in the underwriting, acquisition or selection
criteria as to any Mortgage Loans added to the Trust Fund;
(xxv) the
weighted average remaining term to maturity of the Mortgage Loans after giving
effect to the amounts distributed on such Distribution Date; and
(xxvi) the
weighted average Mortgage Rates of the Mortgage Loans after giving effect to
the
amounts distributed on such Distribution Date.
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall also be expressed as a dollar amount per Single Certificate.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall prepare and forward to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in subclauses (i) and (ii) above, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code and regulations
thereunder as from time to time are in force.
|
SECTION
4.03.
|
Remittance
Reports; Advances by the Master
Servicer.
|
(a) By
11:00
A.M. New York time the Business Day following each Determination Date, the
Master Servicer shall deliver to the Trustee a report, prepared as of the close
of business on the Determination Date (the “Determination Date Report”), by
telecopy or in a mutually agreeable electronic format. The Determination Date
Report and any written information supplemental thereto shall include such
information with respect to the Mortgage Loans that is reasonably available
to
the Master Servicer and that is required by the Trustee for purposes of making
the calculations referred to in the following paragraph, as set forth in written
specifications or guidelines issued by the Trustee from time to time. Not later
than 2:00 P.M. New York time on the Certificate Account Deposit Date, the
Trustee shall furnish by telecopy to the Master Servicer a statement (the
information in such statement to be made available to Certificateholders or
the
Depositor by the Master Servicer on request) setting forth (i) the Available
Distribution Amount, (ii) the amounts required to be withdrawn from the
Custodial Account and deposited into the Certificate Account on the immediately
succeeding Certificate Account Deposit Date pursuant to clause (iii) of Section
4.01 (a); and (iii) such other information with respect to the Mortgage Loans
as
the Trustee may reasonably require to perform the calculations necessary to
make
the distributions contemplated by Section 4.01 and to prepare the statements
to
Certificateholders contemplated by Section 4.02. The determination by the
Trustee of such amounts shall, in the absence of obvious error, be presumptively
deemed to be correct for all purposes hereunder.
-58-
(b) Not
later
than 2:00 P.M. New York time on the Certificate Account Deposit Date, the
Trustee shall notify the Master Servicer of the aggregate amount of Advances
required to be made for the related Distribution Date, which shall be the
aggregate amount of Monthly Payments (with each interest portion thereof
adjusted to be net of the related Servicing Fee Rate), less the amount of any
related Debt Service Reductions or reductions in the amount of interest
collectable from the Mortgagor pursuant to the Relief Act, on the Outstanding
Mortgage Loans as of the related Due Date, which Monthly Payments were
delinquent as of the close of business as of the related Determination Date,
provided that following the reduction of the Certificate Principal Balances
of
the Class B Certificates to zero no Advance shall be made if it would be a
Nonrecoverable Advance. On or before 3:00 P.M. New York time on each Certificate
Account Deposit Date, the Master Servicer shall either (i) deposit in the
Certificate Account from its own funds, or funds received therefor from the
Sub-Servicers, an amount equal to the Advances to be made by the Master Servicer
in respect of the related Distribution Date, (ii) withdraw from amounts on
deposit in the Custodial Account and deposit in the Certificate Account all
or a
portion of the amounts held for future distribution in discharge of any such
Advance, or (iii) make advances in the form of any combination of (i) and (ii)
aggregating the amount of such Advance. Any portion of the amounts held for
future distribution so used shall be replaced by the Master Servicer by deposit
in the Custodial Account on or before 12: 00 P.M. New York time on any future
Certificate Account Deposit Date to the extent that funds attributable to the
Mortgage Loans that are available in the Custodial Account for deposit in the
Certificate Account on such Certificate Account Deposit Date shall be less
than
payments to Certificateholders required to be made on the following Distribution
Date. The amount of any reimbursement pursuant to Section 4.01(b)(iii) in
respect of outstanding Advances on any Distribution Date shall be allocated
to
specific Monthly Payments due but delinquent for previous Due Periods, which
allocation shall be made, to the extent practicable, to Monthly Payments which
have been delinquent for the longest period of time. Such allocations shall
be
conclusive for purposes of reimbursement to the Master Servicer from recoveries
on the Mortgage Loans pursuant to Section 3.11. The determination by the Master
Servicer that it has made a Nonrecoverable Advance or that any proposed Advance,
if made, would constitute a Nonrecoverable Advance, shall be evidenced by a
certificate of a Servicing Officer delivered to the Seller and the Trustee.
The
Trustee shall deposit all funds it receives pursuant to this Section 4.03 into
the Certificate Account.
(c) In
the
event that the Master Servicer determines on the Certificate Account Deposit
Date that it will be unable to deposit in the Certificate Account an amount
equal to the Advance required to be made for the immediately succeeding
Distribution Date in the amount determined by the Trustee pursuant to paragraph
(b) above, it shall give notice to the Trustee of its inability to advance
(such
notice may be given by telecopy), not later than 3:00 P.M., New York time,
on
such Business Day, specifying the portion of such amount that it will be unable
to deposit. If the Master Servicer shall have determined that it is not
obligated to make the entire Advance because all or a lesser portion of such
Advance would not be recoverable from Insurance Proceeds, Liquidation Proceeds
or otherwise, the Master Servicer shall promptly deliver to the Trustee for
the
benefit of the Certificateholders an Officer’s Certificate setting forth the
reasons for the Master Servicer’s determination. Not later than 5:00 P.M., New
York time, on the Certificate Account Deposit Date, unless by such time the
Master Servicer shall have directly or indirectly deposited in the Certificate
Account the entire amount of the Advances required to be made for the related
Distribution Date, pursuant to Section 7.01, the Trustee shall (a) terminate
all
of the rights and obligations of the Master Servicer under this Agreement in
accordance with Section 7.01 and (b) assume the rights and obligations of the
Master Servicer hereunder, including the obligation to deposit in the
Certificate Account an amount equal to the Advance for the immediately
succeeding Distribution Date.
-59-
|
SECTION
4.04.
|
Allocation
of Realized Losses.
|
Prior
to
each Distribution Date, the Master Servicer shall determine the total amount
of
Realized Losses, if any, that resulted from any Cash Liquidation, Debt Service
Reduction, Deficient Valuation or REO Disposition that occurred during the
related Prepayment Period. The amount of each Realized Loss shall be evidenced
by an Officers’ Certificate by the Master Servicer. Realized Losses shall be
allocated among the various Classes of Certificates as determined by the Trustee
in accordance with the following provisions. All Realized Losses, other than
Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses
or
Extraordinary Losses shall be allocated as follows: first, to the Class B
Certificates until the Certificate Principal Balance thereof has been reduced
to
zero; and second, among all the Class A Certificates as described below. Any
Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses
and
Extraordinary Losses on Mortgage Loans will be allocated among the Class A
and
Class B Certificates on a pro rata basis, as described below. As used herein,
an
allocation of a Realized Loss on a “pro rata basis” among two or more specified
Classes of Certificates means an allocation on a pro rata basis, without
priority among the various Classes so specified, to each such Class of
Certificates on the basis of the then outstanding Certificate Principal Balances
thereof in the case of the principal portion of a Realized Loss or based on
the
Accrued Certificate Interest thereon in the case of an interest portion of
a
Realized Loss. Allocations of Realized Losses which are Default Losses to the
Class A Certificates will be made on a pro rata basis, based on their then
outstanding Certificate Principal Balances, or the Accrued Certificate Interest
thereon, as applicable, between the Class ▇- ▇, Class A-5 and Class A-6
Certificates, on the one hand, and the Class A-2, Class A-3, Class A-4 and
Variable Strip Certificates, on the other. Any such Realized Losses so allocated
to the Class A-1, Class A-5 and Class A-6 Certificates will be allocated first
to the Class A-6 Certificates until the Certificate Principal Balance thereof
or
the Accrued Certificate Interest thereon, as appropriate, is reduced to zero
and
then to the Class A-1 and Class A-5 Certificates on a pro rata basis. Any
allocation of the principal portion of Realized Losses (other than Debt Service
Reductions) to a Class A Certificate shall be made by reducing the Certificate
Principal Balance thereof by the amount so allocated, which allocation shall
be
deemed to have occurred at the close of business on such Distribution Date.
Any
allocation of the principal portion of Realized Losses (other than Debt Service
Reductions) to the Class B Certificates, shall be made by operation of the
definition of “Certificate Principal Balance” and by operation of the provisions
of Section 4.01(b). Allocations of the interest portions of Realized Losses
shall be made by operation of the definition of “Accrued Certificate Interest”
and by operation of the provisions of Section 4.01(b) or 4.01(d), as applicable.
Allocations of the principal portion of Debt Service Reductions shall be made
by
operation of the provisions of Section 4.01(b) or 4.01(d), as applicable. All
Realized Losses and all other losses allocated to a Class of Certificates under
this Section 4.04 will be allocated among the Certificates of such Class in
proportion to the Percentage Interests evidenced thereby.
-60-
|
SECTION
4.05.
|
Information
Reports to be Filed by the Master
Servicer.
|
The
Master Servicer or the Sub-Servicers shall file the information returns with
respect to the receipt of mortgage interest received in a trade or business,
reports of foreclosures and abandonments of any Mortgaged Property and the
information returns relating to cancellation of indebtedness income with respect
to any Mortgaged Property required by Sections 6050H, 6050J and 6050P of the
Code, respectively, and deliver to the Trustee an Officers’ Certificate stating
that such reports have been filed. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
|
SECTION
4.06.
|
Compliance
with Withholding Requirements.
|
Notwithstanding
any other provision of this Agreement, the Trustee shall comply with all federal
withholding requirements respecting payments to Certificateholders of interest
or original issue discount on the Mortgage Loans, and payments of interest
or
discount on amounts invested by the Trustee as agent for Certificateholders
pursuant to an election made under Section 4.01 hereof, that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event
the
Trustee withholds any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall, together with its monthly report to such
Certificateholders pursuant to Section 4.02 hereof, indicate such amount
withheld.
-61-
ARTICLE
V
THE
CERTIFICATES
|
SECTION
5.01.
|
The
Certificates.
|
The
Certificates will be substantially in the respective forms annexed hereto as
Exhibits ▇-▇, ▇-▇ and B. The Certificates will be issuable in registered form
only. The Class A Certificates, other than the Class A-5 and Class A-7
Certificates, shall be issuable in minimum dollar denominations of $1,000 and
integral multiples of $1 in excess thereof, except that one Certificate of
each
Class of Class A Certificates may be issued in an amount such that the
denomination of such Certificate and the aggregate denomination of all other
outstanding Certificates of such Class together equal the aggregate Certificate
Principal Balance of such Class. The Class B Certificates shall be issuable
in
minimum dollar denominations of $25,000 and integral multiples of $1 in excess
thereof, except that one Certificate of such Class may be issued in an amount
such that the denomination of such Certificate and the aggregate denomination
of
all other outstanding Certificates of such Class together equal the aggregate
Certificate Principal Balance of such Class. The Class A-5 and Class A-7
Certificates shall be issuable in minimum Notional Amounts of $1,000 and
integral multiples of $1 in excess thereof, except that one Certificate of
each
such Class may be issued in an amount such that the denomination of such
Certificate and the aggregate denomination of all other outstanding Certificates
of such Class together equal the aggregate Notional Amount of such Class. The
Class R Certificates will each be issuable in minimum denominations of any
Percentage Interest representing 20% and integral multiples of 0.01% in excess
thereof, provided, however, that one Class R Certificate may be issued to the
“tax matters person” pursuant to Article X, in a minimum denomination
representing a Percentage Interest of not less than 0.01%.
Upon
original issue, the Certificates shall, upon the written request of the
Depositor executed by an officer of the Depositor, be executed and delivered
by
the Trustee, authenticated by the Trustee and delivered to or upon the order
of
the Depositor upon receipt by the Trustee of the documents specified in Section
2.01. The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee in its capacity as trustee hereunder by a Responsible
Officer. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did
not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates issued on the Closing
Date shall be dated the Closing Date and any Certificates delivered thereafter
shall be dated the date of their authentication.
-62-
|
SECTION
5.02.
|
Registration
of Transfer and Exchange of
Certificates.
|
The
Trustee shall maintain a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates
as
herein provided.
No
transfer, sale, pledge or other disposition of a Class B or a Class R
Certificate shall be made unless such transfer, sale, pledge or other
disposition is exempt from the registration requirements of the Securities
Act
of 1933, as amended (the “Act”), and any applicable state securities laws or is
made in accordance with said Act and laws. In the event that a transfer of
a
Class B or Class R Certificate is to be made (i) the Depositor may direct the
Trustee to require a written Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee and the Depositor that such transfer
shall
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from said Act and laws or is being made pursuant to said Act
and
laws, which Opinion of Counsel shall not be an expense of the Trustee, the
Depositor or the Master Servicer, provided that such Opinion of Counsel will
not
be required in connection with the initial transfer of any such Certificate
by
the Depositor or any affiliate thereof, to a non-affiliate of the Depositor
and
(ii) the Trustee shall require the transferee to execute a representation
letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall
require the transferor to execute a representation letter, substantially in
the
form of Exhibit G-2 hereto, each acceptable to and in form and substance
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which representation letters
shall not be an expense of the Trustee, the Depositor or the Master Servicer.
Any such Certificateholder desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such applicable federal and state laws.
The
Trustee shall require a written Opinion of Counsel from a prospective transferee
prior to the transfer of any Class B or Class R Certificate to any employee
benefit plan or other retirement arrangement, including individual retirement
accounts and ▇▇▇▇▇ plans, that is subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of
the Code (any of the foregoing, a “Plan”), to a trustee or other Person acting
on behalf of any Plan, or to any other person who is using “plan assets” of any
Plan to effect such acquisition (including any insurance company using funds
in
its general or separate accounts that may constitute “plan assets”). Such
Opinion of Counsel must establish to the satisfaction of the Depositor and
the
Trustee or the Certificate Registrar that such disposition will not violate
the
prohibited transaction provisions of Section 406 of ERISA and Section 4975
of
the Code. Neither the Depositor, the Master Servicer nor the Trustee will be
required to obtain such Opinion of Counsel on behalf of any prospective
transferee. In the case of any transfer of the foregoing Certificates to an
insurance company, in lieu of such Opinion of Counsel, the Trustee shall require
a certification in the form of Exhibit G-5 hereto substantially to the effect
that all funds used by such transferee to purchase such Certificates will be
funds held by it in its general account which it reasonably believes do not
constitute “plan assets” of any Plan (as defined above). The permission of any
transfer in violation of the restriction on transfer set forth in this paragraph
shall not constitute a default or an Event of Default.
-63-
(i) Each
Person who has or who acquires any Ownership Interest in a Class R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
authorized the Trustee or its designee under clause (iii)(A) below to deliver
payments to a Person other than such Person and to negotiate the terms of any
mandatory sale under clause (iii)(B) below and to execute all instruments of
transfer and to do all other things necessary in connection with any such sale.
The rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Class R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In
connection with any proposed transfer of any Ownership Interest in a Class
R
Certificate, the Trustee shall require delivery to it, and shall not register
the transfer of any Class R Certificate until its receipt of (I) an affidavit
and agreement (a “Transfer Affidavit and Agreement” in the form attached hereto
as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory
to the Master Servicer and the Trustee representing and warranting, among other
things, that it is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person who is not
a
Permitted Transferee, that for so long as it retains its Ownership Interest
in a
Class R Certificate, it will endeavor to remain a Permitted Transferee, and
that
it has reviewed the provisions of this Section 5.02 and agrees to be bound
by
them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from
the Holder wishing to transfer the Class R Certificate, in form and substance
satisfactory to the Master Servicer and the Trustee representing and warranting,
among other things, that no purpose of the proposed Transfer is to impede the
assessment or collection of tax.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if a Responsible Officer of the Trustee assigned to
this
transaction has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Class R Certificate to
such proposed Transferee shall be effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Class R Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Class R Certificate and (y) not to transfer its Ownership Interest unless it
provides a certificate to the Trustee in the form attached hereto as Exhibit
G-4.
(E) Each
Person holding or acquiring an Ownership Interest in a Class R Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the Trustee
written notice that it is a “pass- through interest holder” within the meaning
of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Class R Certificate, if it is “a
pass-through interest holder”, or is holding an Ownership Interest in a Class R
Certificate on behalf of a “pass-through interest holder.”
-64-
(ii) The
Trustee will register the Transfer of any Class R Certificate only if it shall
have received the Transfer Affidavit and Agreement in the form attached hereto
as Exhibit G-3, a certificate of the holder requesting such transfer in the
form
attached hereto as Exhibit G-4 and all of such other documents as shall have
been reasonably required by the Trustee as a condition to such registration.
Transfers of the Class R Certificates to Non-United States Persons and
Disqualified Organizations are prohibited.
(iii)
(a) if
any Disqualified Organization shall become a holder of a Class R Certificate,
then the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as holder thereof retroactive
to
the date of registration of such Transfer of such Class R Certificate. If a
Non-United States Person shall become a holder of a Class R Certificate, then
the last preceding United States Person shall be restored, to the extent
permitted by law, to all rights and obligations as holder thereof retroactive
to
the date of registration of such Transfer of such Class R Certificate. If a
transfer of a Class R Certificate is disregarded pursuant to the provisions
of
Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights and obligations as holder thereof retroactive to the date
of
registration of such Transfer of such Class R Certificate. The Trustee shall
be
under no liability to any Person for any registration of Transfer of a Class
R
Certificate that is in fact not permitted by this Section 5.02 or for making
any
payments due on such Certificate to the holder thereof or for taking any other
action with respect to such holder under the provisions of this
Agreement.
(b) If
any purported Transferee shall become a holder of a Class R Certificate in
violation of the restrictions in this Section 5.02 and to the extent that the
retroactive restoration of the rights of the holder of such Class R Certificate
as described in clause (iii)(a) above shall be invalid, illegal or
unenforceable, then the Trustee shall have the right, without notice to the
holder or any prior holder of such Class R Certificate, to sell such Class
R
Certificate to a purchaser selected by the Trustee on such terms as the Trustee
may choose. Such purported Transferee shall promptly endorse and deliver each
Class R Certificate in accordance with the instructions of the Trustee. Such
purchaser may be the Trustee itself. The proceeds of such sale, net of the
commissions (which may include commissions payable to the Trustee), expenses
and
taxes due, if any, will be remitted by the Trustee to such purported Transferee.
The terms and conditions of any sale under this clause (iii)(b) shall be
determined in the sole discretion of the Trustee, and the Trustee shall not
be
liable to any Person having an Ownership Interest in a Class R Certificate
as a
result of its exercise of such discretion.
(iv) The
Trustee shall make available to the Internal Revenue Service and those Persons
specified by the REMIC Provisions, all information necessary to compute any
tax
imposed (A) as a result of the transfer of an ownership interest in a Class
R
Certificate to any Person who is a Disqualified Organization, including the
information regarding “excess inclusions” of such Class R Certificates required
to be provided to the Internal Revenue Service and certain Persons as described
in Treasury Regulations Sections 1.86OD-l(b)(5) and 1.860E 2(a)(5), and (B)
as a
result of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in Section
1381
of the Code that holds an Ownership Interest in a Class R Certificate having
as
among its record holders at any time any Person who is a Disqualified
Organization. The Trustee may charge and shall be entitled to reasonable
compensation for providing such information as may be required from those
Persons which may have had a tax imposed upon them as specified in clauses
(A)
and (B) of this paragraph for providing such information.
-65-
Subject
to the preceding paragraphs, upon surrender for registration of transfer of
any
Certificate at the office of the Trustee maintained for such purpose, the
Trustee shall execute and the Trustee or the Authenticating Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class of a like aggregate
initial Certificate Principal Balance. Every Certificate surrendered for
transfer shall be accompanied by notification of the account of the designated
transferee or transferees for the purpose of receiving distributions pursuant
to
Section 4.01 by wire transfer, if any such transferee desires and is eligible
for distribution by wire transfer.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates of authorized denominations of the same Class of a like aggregate
initial Certificate Principal Balance, upon surrender of the Certificates to
be
exchanged at the office of the Certificate Registrar. Whenever any Certificates
are so surrendered for exchange the Trustee shall execute, authenticate and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for transfer
or
exchange shall (if so required by the Trustee or the Certificate Registrar)
be
duly endorsed by, or be accompanied by a written instrument of transfer in
the
form satisfactory to the Trustee or the Certificate Registrar duly executed
by,
the Holder thereof or his attorney duly authorized in writing.
No
service charge shall be made to the Certificateholders for any transfer or
exchange of Certificates, but the Trustee may require 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.
All
Certificates surrendered for transfer and exchange shall be canceled and
retained by the Trustee in accordance with the Trustee’s standard
procedures.
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(i)
any mutilated Certificate is surrendered to the Trustee and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as may be required by it to save it harmless, then, in the absence
of
notice to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, authenticate and deliver, in exchange
for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new
Certificate of the same Class and initial Certificate Principal Balance. Upon
the issuance of any new Certificate under this Section, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
-66-
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and for all other purposes whatsoever, and neither the Depositor, the
Master Servicer, the Trustee nor any agent of any of them shall be affected
by
notice to the contrary.
-67-
ARTICLE
VI
THE
DEPOSITOR AND THE MASTER SERVICER
|
SECTION
6.01.
|
Liability
of the Depositor and the Master
Servicer.
|
The
Depositor and the Master Servicer each shall be liable in accordance herewith
only to the extent of the obligations specifically imposed upon and undertaken
by the Depositor and the Master Servicer herein.
|
SECTION
6.02.
|
Merger,
Consolidation or Conversion of the Depositor or the Master
Servicer.
|
The
Depositor and the Master Servicer each will keep in full effect its existence,
rights and franchises as an limited liability company and corporation,
respectively, under the laws of the state of its formation or incorporation,
as
the case may be, and each will 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, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement; and provided further
that the Rating Agencies’ ratings of the Class A Certificates immediately prior
to such merger or consolidation will not be qualified, reduced or withdrawn
as a
result thereof (as evidenced by a letter to such effect from the Rating
Agencies).
Any
Person into which the Depositor or the Master Servicer may be merged,
consolidated or converted, or any corporation resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party,
or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case
may
be, hereunder, without the execution or filing of any paper or any further
act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
to
the Master Servicer shall be qualified to sell mortgage loans to and service
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Master Servicer and
Others.
|
Neither
the Depositor, the Master Servicer nor any of the directors, officers, employees
or agents of the Depositor or the Master Servicer shall be under any liability
to the Trust Fund or 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 the Master Servicer (but this provision
shall
protect the above described persons) against any breach of warranties or
representations made herein, or against any specific liability imposed on the
Master Servicer pursuant to Section 3.01 or any other Section hereof; and
provided further that this provision shall not protect the Depositor, the Master
Servicer or any such person, against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in
the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer may rely in good
faith
on any document of any kind prima facie properly executed and submitted by
any
Person respecting any matters arising hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer shall be indemnified and held harmless by the Trust Fund against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to Master Servicer’s servicing obligations with respect to
any specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) or
related to the Master Servicer’s obligations under Section 3.01, or any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder.
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Neither
the Depositor nor the Master Servicer shall be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its
respective duties under this Agreement and which in its opinion may involve
it
in any expense or liability; provided, however, that the Depositor or the Master
Servicer may in its sole discretion undertake any such action which it may
deem
necessary or desirable with respect to this Agreement and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder.
In
such event, the legal expenses and costs of such action and any liability
resulting therefrom (except any action or liability related to the Master
Servicer’s obligations under Section 3.01) shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor and the Master Servicer shall
be entitled to be reimbursed therefor from the Certificate Account as provided
in Section 3.11, any such right of reimbursement being prior to the rights
of
Certificateholders to receive any amount in the Certificate
Account.
|
SECTION
6.04.
|
Limitation
on Resignation of the Master
Servicer.
|
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (a) upon appointment of a successor servicer reasonably acceptable
to the Trustee and upon receipt by the Trustee of a letter from each Rating
Agency that such a resignation and appointment will not, in and of itself,
result in a downgrading of the Certificates or (b) upon determination that
its
duties hereunder are no longer permissible under applicable law (any such
determination permitting the resignation of the Master Servicer to be evidenced
by an Opinion of Counsel (at the expense of the resigning Master Servicer)
to
such effect delivered to the Trustee). No such resignation shall become
effective until the Trustee or a successor servicer shall have assumed the
Master Servicer’s responsibilities, duties, liabilities and obligations
hereunder.
-69-
ARTICLE
VII
DEFAULT
|
SECTION
7.01.
|
Events
of Default.
|
“Event
of
Default”, wherever used herein, means any one of the following
events:
(i) any
failure by the Master Servicer to remit to the Trustee for distribution to
the
Certificateholders any payment (other than an Advance) required to be made
under
the terms of the Certificates or this Agreement which continues unremedied
for a
period of one day after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
by the Depositor (with a copy to the Trustee) or the Trustee, or to the Master
Servicer, the Depositor and the Trustee by the Holders of Certificates entitled
to at least 25% of the Voting Rights; or
(ii) any
failure on the part of the Master 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 the Certificates or in this Agreement (including
any breach of the Master Servicer’s representations and warranties pursuant to
Section 2.03(a) which materially and adversely affects the interests of the
Certificateholders) which continues unremedied for a period of 30 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 by the Depositor (with a copy
to
the Trustee) or the Trustee, or to the Master Servicer, the Depositor and the
Trustee by the Holders of Certificates entitled to at least 25% of the Voting
Rights; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in an
involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling 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 decree
or
order shall have remained in force undischarged or unstayed for a period of
60
consecutive days; or
(iv) the
Master 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 Master Servicer or
of
or relating to all or substantially all of its property; or
(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 or otherwise
voluntarily commence a case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar statute, make an assignment for
the
benefit of its creditors, or voluntarily suspend payment of its obligations;
or
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(vi) the
Master Servicer shall fail to deposit in the Certificate Account on any
Certificate Account Deposit Date an amount equal to any required
Advance.
If
the
Master Servicer shall fail to make any deposit in the Certificate Account as
required by Section 4.01, the Trustee shall give the Master Servicer notice
pursuant to clause (i) not later than the Business Day following the Certificate
Account Deposit Date. If an Event of Default described in clauses (i) - (v)
of
this Section shall occur, then, and in each and every such case, so long as
such
Event of Default shall not have been remedied, the Depositor or the Trustee
may,
and at the direction of the Holders of Certificates entitled to at least 51%
of
the Voting Rights, the Trustee shall, by notice to the Master Servicer (and
to
the Depositor if given by the Trustee or to the Trustee if given by the
Depositor) terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Trust Fund, other than its rights as
a
Certificateholder hereunder and the Depositor, terminate all of the rights
and
obligations of the Master Servicer under this Agreement and in and to the Trust
Fund, other than its rights as a Certificateholder hereunder. If an Event of
Default described in clause (vi) hereof shall occur, the Trustee shall, by
notice to the Master Servicer and the Depositor, terminate all of the rights
and
obligations of the Master Servicer under this Agreement and in and to the Trust
Fund, other than its rights as a Certificateholder hereunder. On or after the
receipt by the Master Servicer of such notice, all authority and power of the
Master Servicer under this Agreement, whether with respect to the Certificates
(other than as a holder thereof) or the Mortgage Loans or other wise, shall
pass
to and be vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the 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, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer’s responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee or its appointed agent for administration by it
of
all cash amounts which shall at the time be deposited by the Master Servicer
or
should have been deposited to the Custodial or the Certificate Account or
thereafter be received with respect to the Mortgage Loans. The Trustee shall
not
be deemed to have breached any obligation hereunder as a result of a failure
to
make or delay in making any distribution as and when required hereunder caused
by the failure of the Master Servicer to remit any amounts received on it or
to
deliver any documents held by it with respect to the Mortgage Loans. For
purposes of this Section 7.01, the Trustee shall not be deemed to have knowledge
of an Event of Default unless a Responsible Officer of the Trustee assigned
to
and working in the Trustee’s Corporate Trust Division has actual knowledge
thereof or unless notice of any event which is in fact such an Event of Default
is received by the Trustee and such notice references the Certificates, the
Trust Fund or this Agreement.
[Notwithstanding
any termination of the activities of [Name of Master Servicer] in its capacity
as Master Servicer hereunder, [Name of Master Servicer] shall be entitled to
receive, out of any Late Collection of a Monthly Payment on a Mortgage Loan
which was due prior to the notice terminating [Name of Master Servicer]’s rights
and obligations as Master Servicer hereunder and received after such notice,
that portion to which [Name of Master Servicer] would have been entitled
pursuant to Sections 3.11 (ii), (iii), (iv), (v) and (viii) and Section 4.
01
(b)(iii) as well as the portion of its related Servicing Fee in respect thereof,
and any other amounts payable to [Name of Master Servicer] hereunder the
entitlement to which arose prior to the termination of its activities
hereunder.]
-71-
|
SECTION
7.02.
|
Trustee
to Act; Appointment of Successor.
|
On
and
after the time the Master Servicer receives a notice of termination pursuant
to
Section 7.01, the Trustee or its appointed agent shall be the successor in
all
respects to the Master Servicer in its capacity as Master Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject thereafter to all the responsibilities, duties and liabilities relating
thereto placed on the Master Servicer including the obligation to make Advances
which have been or will be required to be made (except for the responsibilities,
duties and liabilities contained in Section 2.03 and its obligations to deposit
amounts in respect of losses incurred prior to the date of succession pursuant
to Section 3.12 and 4.01(e)) by the terms and provisions hereof; and provided
further, that any failure to perform such duties or responsibilities caused
by
the Master Servicer’s failure to provide information required by Section 4.03
shall not be considered a default by the Trustee hereunder. As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans which the Master Servicer would have been entitled to charge to the
Custodial Account and the Certificate Account if the Master Servicer had
continued to act hereunder. Notwithstanding the above, the Trustee may, if
it
shall be unwilling to so act, or shall, if it is unable to so act or if the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee, appoint, or petition a court of competent
jurisdiction to appoint, any ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved mortgage
servicing institution having a net worth of not less than $10,000,000 as the
successor to the Master Servicer hereunder in the assumption of all or any
part
of the responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall act in such capacity as herein above provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and
such
successor shall agree; provided, however, that no such compensation shall be
in
excess of that permitted the Master Servicer hereunder. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall
be
necessary to effectuate any such succession; provided, however, that such
succession shall not reduce the ratings of the Certificates below the original
ratings thereof.
Any
successor, including the Trustee, to the Master Servicer shall maintain in
force
during its term as master servicer hereunder the Insurance Policies and fidelity
bonds to the same extent as the Master Servicer is so required pursuant to
Sections 3.13 and 3.18.
|
SECTION
7.03.
|
Notification
to Certificateholders.
|
(a) Upon
any
such termination or appointment of a successor to the Master Servicer, the
Trustee shall give prompt notice thereof to Certificateholders.
-72-
(b) Within
60
days after the occurrence of any Event of Default, the Trustee shall transmit
by
mail to all Holders of Certificates notice of each such Event of Default
hereunder known to the Trustee, unless such Event of Default shall have been
cured or waived.
|
SECTION
7.04.
|
Waiver
of Events of Default.
|
The
Holders representing at least 66% of the Voting Rights of Certificates affected
by a default or Event of Default hereunder, may waive such default or Event
of
Default (other than an Event of Default set forth in Section 7.01(vi); provided,
however, that (a) a default or Event of Default under clause (i) of Section
7.01
may be waived only by all of the Holders of Certificates affected by such
default or Event of Default and (b) no waiver pursuant to this Section 7.04
shall affect the Holders of Certificates in the manner set forth in the second
paragraph of Section 11.01 or materially adversely affect any non-consenting
Certificateholder. Upon any such waiver of a default or Event of Default by
the
Holders representing the requisite percentage of Voting Rights of Certificates
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
-73-
ARTICLE
VIII
CONCERNING
THE TRUSTEE
|
SECTION
8.01.
|
Duties
of Trustee.
|
The
Trustee, prior to the occurrence of an Event of Default and after the curing
of
all Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement. If an
Event of Default occurs and is continuing, the Trustee shall exercise such
of
the rights and powers vested in it by this Agreement, and use the same degree
of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of
the
Trustee enumerated in this Agreement shall not be construed as a
duty.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee 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. If any such instrument is found not to conform
to the requirements of this Agreement in a material manner, the Trustee shall
take action as it deems appropriate to have the instrument
corrected.
The
Trustee shall sign on behalf of the Trust Fund any tax return that the Trustee
is required to sign pursuant to applicable federal, state or local tax
laws.
The
Trustee covenants and agrees that it shall perform its obligations hereunder
in
a manner so as to maintain the status of the Trust Fund as a REMIC under the
REMIC Provisions and to prevent the imposition of any federal, state or local
income, prohibited transaction, contribution or other tax on the Trust Fund
to
the extent that maintaining such status and avoiding such taxes are reasonably
within the control of the Trustee and are reasonably within the scope of its
duties under this Agreement.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own misconduct; provided, however, that:
(i) Prior
to
the occurrence of an Event of Default, and after the curing of all such Events
of Default which may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the
opinions expressed therein, upon any certificates or opinions furnished to
the
Trustee and conforming to the requirements of this Agreement;
-74-
(ii) The
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless
it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates entitled to at least 25% of the Voting
Rights relating to the time, method and place of conducting any proceeding
for
any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement.
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 8.01:
(a) The
Trustee may request and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officers’ Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) The
Trustee may consult with counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance
therewith;
(c) The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Agreement or to make any investigation of matters arising
hereunder or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default (which has not
been cured), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise as
a
prudent man would exercise or use under the circumstances in the conduct of
his
own affairs;
(d) The
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(e) Prior
to
the occurrence of an Event of Default hereunder and after the curing of all
Events of Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing
to
do so by Holders of Certificates entitled to at least 25% of the Voting Rights;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or liability
as a condition to taking any such action. The reasonable expense of every such
reasonable examination shall be paid by the Master Servicer or, if paid by
the
Trustee, shall be repaid by the Master Servicer upon demand; and
-75-
(f) 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.
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein and in the Certificates, other than the signature
of
the Trustee on the Certificates and the certificate of authentication, shall
be
taken as the statements of the Depositor or the Master Servicer, as the case
may
be, and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations or warranties as to the validity or sufficiency of
this
Agreement or of the Certificates or of any Mortgage Loan or related document,
other than the signature of the Trustee on the Certificates and the Certificate
of Authentication. The Trustee shall not be accountable for the use or
application by the Depositor or the Master Servicer of any of the Certificates
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Seller in respect of the Mortgage Loans or deposited in or
withdrawn from the Custodial Account or the Certificate Account or any other
account by or on behalf of the Depositor or the Master Servicer, other than
any
funds held by or on behalf of the Trustee in accordance with Section
4.01.
|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights it would have if it were not
Trustee.
|
SECTION
8.05.
|
Payment
of Trustee’s Fees.
|
The
Trustee shall withdraw from the Certificate Account on each Distribution Date
and pay to itself the Trustee’s Fee. Except as otherwise provided in this
Agreement, the Trustee and any director, officer, employee or agent of the
Trustee shall be indemnified by the Trust Fund and held harmless against any
loss, liability or “unanticipated out-of-pocket” expense incurred or paid to
third parties (which expenses shall not include salaries paid to employees,
or
allocable overhead, of the Trustee) in connection with the acceptance or
administration of its trusts hereunder or the Certificates, other than 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 all such amounts shall be payable
from funds in the Custodial Account as provided in Section 3.11. The provisions
of this Section 8.05 shall survive the termination of this
Agreement.
The
Master Servicer shall indemnify the Trustee and any director, officer, employee
or agent of the Trustee against any loss, liability or expense that may be
sustained in connection with this Agreement related to the willful misfeasance,
bad faith or negligence in the performance of its duties hereunder.
-76-
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be a corporation or a national banking
association organized and doing business under the laws of any state or the
United States of America or the District of Columbia, authorized under such
laws
to exercise corporate trust powers, having a combined capital and surplus of
at
least $50,000,000 and subject to supervision or examination by federal or state
authority. In addition, the Trustee shall at all times be acceptable to the
Rating Agency rating the Certificates. If such corporation 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 shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07.
The corporation or national banking association serving as Trustee may have
normal banking and trust relationships with the Seller and its affiliates or
the
Master Servicer and its affiliates; provided, however, that such corporation
cannot be an affiliate of the Master Servicer other than the Trustee in its
role
as successor to the Master Servicer.
|
SECTION
8.07.
|
Resignation
and Removal of the Trustee.
|
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving notice thereof to the Depositor, the Master Servicer and to all
Certificateholders; provided, that such resignation shall not be effective
until
a successor trustee is appointed and accepts appointment in accordance with
the
following provisions. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee who meets the eligibility
requirements of Section 8.06 by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Certificateholders
and the Master Servicer by the Depositor. If no successor trustee shall have
been so appointed and have accepted appointment within 60 days after the giving
of such notice of resignation, the resigning Trustee may petition any court
of
competent jurisdiction for the appointment of a successor trustee; provided,
however, that the resigning Trustee shall not resign and be discharged from
the
trusts hereby created until such time as the Rating Agency rating the
Certificates approves the successor trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 8.06 and shall fail to resign after written request therefor by the
Depositor or the Master Servicer, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, or if the rating
of
the long-term debt obligations of the Trustee is not acceptable to the Rating
Agency in respect of mortgage pass-through certificates having a rating equal
to
the then current rating on the Certificates, then the Depositor may remove
the
Trustee and appoint a successor trustee who meets the eligibility requirements
of Section 8.06 by written instrument, in duplicate, which instrument shall
be
delivered to the Trustee so removed and to the successor trustee. A copy of
such
instrument shall be delivered to the Certificateholders and the Master Servicer
by the Depositor.
-77-
The
Holders of Certificates entitled to at least 51% of the Voting Rights may at
any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to
the
Master Servicer, one complete set to the Trustee so removed and one complete
set
to the successor so appointed. A copy of such instrument shall be delivered
to
the Certificateholders and the Master Servicer by the Depositor.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall not become effective
until acceptance of appointment by the successor trustee as provided in Section
8.08.
|
SECTION
8.08.
|
Successor
Trustee.
|
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Master Servicer and to its predecessor trustee
an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Master
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties and obligations.
No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such acceptance such successor trustee shall be eligible under
the
provisions of Section 8.06.
Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Master Servicer shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Master Servicer fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Master
Servicer.
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible under the provisions
of
Section 8.06, 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.
-78-
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust Fund or property
securing the same may at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity, such title to the Trust Fund, or any part
thereof, and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights and trusts as the Depositor and the Trustee may
consider necessary or desirable. If the Depositor shall not have joined in
such
appointment within 15 days after the receipt by it of a request so to do, or
in
case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be
required under Section 8.08 hereof.
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 8.10 all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or performed
by the Trustee and such separate trustee or co-trustee jointly, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified
to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII.. 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.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
-79-
|
SECTION
8.11.
|
Commission
Reporting.
|
(a) (i)
Within 15 days after each Distribution Date, the Trustee shall, in accordance
with industry standards, file with the Commission via the Electronic Data
Gathering and Retrieval System (“▇▇▇▇▇”), a Distribution Report on Form 10-D,
signed by the Master Servicer, with a copy of the monthly statement to be
furnished by the Trustee to the Certificateholders for such Distribution Date
and detailing all data elements specified in Item 1121(a) of Regulation AB
as
part of the monthly statement; provided that the Trustee shall have received
no
later than 2 days prior to the date such Distribution Report on Form 10-D is
required to be provided to the Trustee as described in clause (a)(iv) below,
the
following information:
(A) Notice
of
any material modifications, extensions or waivers to Mortgage Loan terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time from the Master Servicer;
(B) Notice
of
any new issuance of asset-backed securities backed by the same asset pool,
any
pool asset changes, such as Mortgage Loan substitutions and repurchases, and
cash flows available for future purchases, if applicable from the
Seller;
(C) A
brief
description of any legal proceedings pending, including proceedings known to
be
contemplated by governmental authorities, against the Depositor, Seller and
the
Master Servicer or of which any property of the foregoing is the subject, that
is material to Certificateholders from each of the Depositor, Seller and the
Master Servicer if applicable;
(D) The
information required by Item 2 of Part II of Form 10-Q regarding any sale of
securities that are either backed by the same asset pool or are otherwise issued
by the issuer, regardless of whether the transaction was registered under the
Securities Act of 1933 during the period covered by the report, from the
Seller;
(E) The
information required by Item 3 of Part II of Form 10-Q with respect to defaults
upon the senior securities during the period covered by the report, from the
Seller;
(F) Any
information required to be disclosed in a report on Form 8-K during the period
covered by the report on the Form 10-D, but not reported, whether or not
otherwise required by the Form 10-D from the Seller and the Master Servicer;
and
-80-
(G) Any
exhibits to the Form 10-D from the Seller.
(ii) The
Trustee will prepare and file Current Reports on Form 8-K in respect of the
Trust, signed by the Master Servicer, at the direction and expense of the
Depositor, provided, that, the Depositor, the Seller or the Master Servicer
shall have timely notified the Trustee of an item reportable on a Current Report
on Form 8-K and shall have delivered to the Trustee no later than one Business
Days prior to the filing deadline for such Current Report, all information,
data, and exhibits required to be provided to the Trustee as described in clause
(a)(iv) below or filed with such Current Report with respect to:
(A) Any
entry
into a material definitive agreement, any termination of a material definitive
agreement and any bankruptcy or receivership of the Depositor, the Seller or
the
Master Servicer (including any servicer that does not sign the pooling and
servicing agreement and any subservicer that signs a subservicing agreement)
from the Depositor, the Seller or the Master Servicer as
applicable;
(B) Any
material modification to the rights of Certificateholders, amendments of the
articles of incorporation or bylaws or a change of the fiscal year of any
transaction party from each of the Depositor, the Seller or the Master Servicer
as applicable; and
(C) Any
Securities Act update provided by the Seller.
(iii) Prior
to
January 30 in each year commencing in 2007, the Trustee shall, in accordance
with industry standards, file a Form 15 Suspension Notice with respect to the
Trust Fund, if applicable. Prior to (x) March 15, 2007 and (y) unless and until
a Form 15 Suspension Notice shall have been filed, prior to March 15 of each
year thereafter, the Master Servicer shall provide the Trustee with an Annual
Compliance Statement, together with a copy of the Assessment of Compliance
and
Attestation Report to be delivered by the Master Servicer pursuant to Sections
3.13 and 3.14. Prior to (x) March 31, 2007 and (y) unless and until a Form
15
Suspension Notice shall have been filed, March 31 of each year thereafter,
the
Trustee shall, subject to subsection (d) below, file a Form 10-K, in substance
conforming to industry standards, with respect to the Trust Fund. Such Form
10-K
shall include the Assessment of Compliance, Attestation Report, Annual
Compliance Statements and other documentation provided by the Master Servicer
pursuant to Sections 3.16 and 3.17 and a certification in the form attached
hereto as Exhibit K (the “Depositor Certification”), which shall be signed by
the senior officer of the Depositor in charge of securitization. The Depositor,
Seller and the Master Servicer shall provide the Trustee with the following
information, as applicable, no later than March 1 of each calendar year prior
to
the filing deadline for the Form 10-K and required to be provided to the Trustee
as described in clause (a)(iv) below:
(A) Any
exhibits or financial statement schedules required by Item 15 of Form 10-K
from
each of the Depositor, Seller and the Master Servicer;
-81-
(B) A
description of any legal proceedings pending, including proceedings known to
be
contemplated by governmental authorities, against the Depositor, Seller and
the
Master Servicer or of which any property of the foregoing is the subject, that
is material to Certificateholders from each of the Depositor, Seller and the
Master Servicer if applicable;
(C) A
description of any affiliations between the transaction parties pursuant to
Item
1119 of Regulation AB from the Seller; and
(D) The
Assessment of Compliance, Attestation Report, Annual Compliance Statements
and
other documentation provided by the Master Servicer pursuant to Sections 3.19
and 3.20.
(iv) As
to
each item of information required to be included in any Form 10-D, Form 8-K
or
Form 10-K, the Trustee's obligation to include the information in the applicable
report is subject to receipt from the entity that is indicated in Exhibit __
as
the responsible party for providing that information, if other than the Trustee,
as and when required as described above. Each of the Master Servicer, Seller
and
Depositor hereby agree to notify and provide to the Trustee all information
that
is required to be included in any Form 10-D, Form 8-K or Form 10-K, with respect
to which that entity is indicated in Exhibit __ as the responsible party for
providing that information. [The Swap Provider will be obligated pursuant to
the
Swap Agreement to provide to the Trustee any information that may be required
to
be included in any Form 10-D, Form 8-K or Form 10-K. The Trustee shall be
responsible for determining the significance percentage (as defined in Item
1115
of Regulation AB) of the Swap Provider at any time. The Master Servicer shall
be
responsible for determining the pool concentration applicable to any subservicer
or originator at any time, for purposes of disclosure as required by Items
1117
and 1119 of Regulation AB.]
(v) The
Depositor hereby grants to the Master Servicer a limited power of attorney
to
sign each Form 10-D, Form 8-K and Form 10-K on behalf of the Depositor. Such
power of attorney shall continue until either the earlier of (x) receipt by
the
Master Servicer from the Depositor of written termination of such power of
attorney and (y) the termination of the Trust Fund. The Depositor agrees to
promptly furnish to the Trustee, from time to time upon request, such further
information, reports and financial statements within its control related to
this
Agreement, the Mortgage Loans as the Trustee reasonably deems appropriate to
prepare and file all necessary reports with the Commission. The Trustee shall
have no responsibility to file any items other than those specified in this
Section 8.11; provided, however, the Trustee will cooperate with the Depositor
in connection with any additional filings with respect to the Trust Fund as
the
Depositor deems necessary under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). Copies of all reports filed by the Trustee under the
Exchange Act shall be sent to: the Depositor c/o
[_____________________________]. Fees and expenses incurred by the Trustee
in
connection with this Section 8.11 shall not be reimbursable from the Trust
Fund.
(b) Not
later
than 15 calendar days before the date on which the Depositor’s annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission (or, if such day is not a Business
Day,
the immediately preceding Business Day), the Trustee shall sign a certification
in the form attached hereto as Exhibit L (the “Trustee Certification”) for the
benefit of the Depositor and its officers, directors and affiliates regarding
certain aspects of items 1 through 3 of the Depositor Certification. In
addition, the Trustee shall, subject to the provisions of Section 8.01 and
8.02
hereof, indemnify and hold harmless the Depositor and each Person, if any,
who
“controls” the Depositor within the meaning of the Securities Act and its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
a
breach of the Trustee’s obligations under this Section 8.11 or any inaccuracy
made in the Trustee Certification. If the indemnification provided for in this
Section 8.11(b) is unavailable or insufficient to hold harmless such Persons,
then the Trustee shall contribute to the amount paid or payable by such Persons
as a result of the losses, claims, damages or liabilities of such Persons in
such proportion as is appropriate to reflect the relative fault of the Depositor
on the one hand and the Trustee on the other. The Trustee acknowledges that
the
Depositor is relying on the Trustee’s performance of its obligations under this
Section 8.11 in order to perform its obligations under Section 8.11(a)
above.
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(c) Not
later
than 15 calendar days before the date on which the Depositor’s annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission (or, if such day is not a Business
Day,
the immediately preceding Business Day), the Master Servicer will deliver to
the
Depositor and the Trustee an Officer’s Certificate for the prior calendar year
in substantially the form of Exhibit M to this Agreement. The Master Servicer
agrees to indemnify and hold harmless the Depositor, the Trustee and each
Person, if any, who “controls” the Depositor or the Trustee within the meaning
of the Securities Act and their respective officers, directors and affiliates
from and against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs, fees
and
expenses that such Person may sustain arising out of third party claims based
on
(i) the failure of the Master Servicer to deliver or caused to be delivered
when
required any Officer’s Certificate pursuant to this Section 8.11(c), or (ii) any
material misstatement or omission contained in any Officer’s Certificate
provided pursuant to this Section 8.11(c). If an event occurs that would
otherwise result in an indemnification obligation under clauses (i) or (ii)
above, but the indemnification provided for in this Section 8.11(c) by such
Servicer is unavailable or insufficient to hold harmless such Persons, then
such
Servicer shall contribute to the amount paid or payable by such Persons as
a
result of the losses, claims, damages or liabilities of such Persons in such
proportion as is appropriate to reflect the relative fault of the Depositor
or
Trustee on the one hand and such Servicer on the other. Each Servicer
acknowledges that the Depositor and the Trustee are relying on the Master
Servicer’s performance of its obligations under this Agreement in order to
perform their respective obligations under this Section 8.11.
(d) Nothing
shall be construed from the foregoing subsections (a), (b) and (c) to require
the Trustee or any officer, director or Affiliate thereof to sign any Form
10-K
or any certification contained therein. Furthermore, the inability of the
Trustee to file a Form 10-K as a result of the lack of required information
as
set forth in Section 8.11(a) or required signatures on such Form 10-K or any
certification contained therein shall not be regarded as a breach by the Trustee
of any obligation under this Agreement.
-83-
(e) Notwithstanding
the provisions of Section 10.01, this Section 8.12 may be amended without the
consent of the Certificateholders.
(f) Upon
any
filing with the Commission, the Trustee shall promptly deliver to the Depositor
a copy of any executed report, statement or information.
-84-
ARTICLE
IX
TERMINATION
|
SECTION
9.01.
|
Termination
Upon Repurchase or Liquidation of All Mortgage
Loans.
|
Subject
to Section 9.02, the respective obligations and responsibilities of the
Depositor, the Master Servicer and the Trustee created hereby (other than the
obligations of the Master Servicer to provide for and the Trustee to make
payments to Certificateholders as hereafter set forth) shall terminate upon
payment to the Certificateholders of all amounts held by or on behalf of the
Trustee and required to be paid to them hereunder following the earlier to
occur
of (i) the repurchase by the Master Servicer of all Mortgage Loans and each
REO
Property in respect thereof remaining in the Trust Fund at a price equal to
(a)
100% of the unpaid principal balance of each Mortgage Loan (other than one
as to
which a REO Property was acquired) on the day of repurchase together with
accrued interest on such unpaid principal balance at the related Net Mortgage
Rate to the first day of the month in which the proceeds of such repurchase
are
to be distributed, plus (b) the appraised value of any REO Property less the
good faith estimate of the Master Servicer of liquidation expenses to be
incurred in connection with its disposal thereof, such appraisal to be conducted
by an appraiser mutually agreed upon by the Master Servicer and the Trustee
at
the expense of the Master Servicer, (but not more than the unpaid principal
balance of the related Mortgage Loan, together with accrued interest on that
balance at the Net Mortgage Rate to the first day of the month of repurchase),
and (ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund (or the
disposition of all REO Property in respect thereof); provided, however, that
in
no event shall the trust created hereby continue beyond expiration of 21 years
from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
the
late ambassador of the United States to the Court of St. ▇▇▇▇▇, living on the
date hereof. In the case of any repurchase by the Master Servicer pursuant
to
clause (i), the Master Servicer shall include in such repurchase price the
amount of any Advances that will be reimbursed to the Master Servicer pursuant
to Section 3.11 (iii) and the Master Servicer shall exercise reasonable efforts
to cooperate fully with the Trustee in effecting such repurchase and the
transfer of the Mortgage Loans and related Mortgage Files and related records
to
the Master Servicer.
The
right
of the Master Servicer to repurchase all Mortgage Loans pursuant to (i) above
shall be conditioned upon the aggregate Stated Principal Balance of such
Mortgage Loans at the time of any such repurchase aggregating an amount equal
to
or less than ___% of the aggregate Stated Principal Balance of the Mortgage
Loans at the Cut-off Date. If such right is exercised, the Master Servicer
upon
such repurchase shall provide to the Trustee, the certification required by
Section 3.16.
-85-
Notice
of
any termination, specifying the Distribution Date upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be given promptly by the
Master Servicer by letter to the Trustee and shall be given promptly by the
Trustee to the Certificateholders mailed (a) in the event such notice is given
in connection with the Master Servicer’s election to repurchase, not earlier
than the 15th day and not later than the 25th day of the month next preceding
the month of such final distribution or (b) otherwise during the month of such
final distribution on or before the Determination Date in such month, in each
case specifying (i) the Distribution Date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at
the
office of the Certificate Registrar therein designated, (ii) the amount of
any
such final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Certificate Registrar
therein specified. In the event such notice is given in connection with the
Master Servicer’s election to repurchase, the Master Servicer shall deposit in
the Custodial Account pursuant to Section 3. 10 on the last day of the related
Prepayment Period an amount equal to the above-described repurchase price
payable out of its own funds. Upon presentation and surrender of the
Certificates by the Certificateholders, the Trustee shall distribute to the
Certificateholders (i) the amount otherwise distributable on such Distribution
Date, if not in connection with the Master Servicer’s election to repurchase, or
(ii) if the Master Servicer elected to so repurchase, an amount determined
as
follows: with respect to each Class A and Class B Certificate, the outstanding
Certificate Principal Balance thereof, plus one month’s interest thereon at the
applicable Pass-Through Rate and any previously unpaid Accrued Certificate
Interest, subject to the priority set forth in Section 4.01(b); and with respect
to each Class R Certificate, the Percentage Interest evidenced thereby
multiplied by the difference, if any, between the above described repurchase
price and the aggregate amount to be distributed to the Class A and Class B
Certificateholders. Upon certification to the Trustee by a Servicing Officer,
following such final deposit, the Trustee shall promptly release the Mortgage
Files as directed by the Master Servicer for the remaining Mortgage Loans,
and
the Trustee shall execute all assignments, endorsements and other instruments
required by the Master Servicer as being necessary to effectuate such
transfer.
In
the
event that all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the time specified in the
above-mentioned notice, the Trustee shall give a second 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 of the Certificates shall not have been surrendered for
cancellation, the Trustee shall take reasonable steps as directed by the
Depositor, or appoint an agent to take reasonable steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and
the
cost thereof shall be paid out of the funds and other assets which remain
subject hereto. If, within nine months after the second notice, all of the
Certificates shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto.
|
SECTION
9.02.
|
Additional
Termination Requirements.
|
(a) In
the
event the Master Servicer repurchases the Mortgage Loans as provided in Section
9.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Master Servicer obtains for the Trustee
an
Opinion of Counsel to the effect that the failure of the Trust Fund to comply
with the requirements of this Section 9.02 will not (i) result in the imposition
of taxes on the net income derived from “prohibited transactions” of the Trust
Fund as defined in Section 86OF of the Code or (ii) cause the Trust Fund to
fail
to qualify as a REMIC at any time that any Certificates are
outstanding:
-86-
(i) The
Trustee shall establish a 90-day liquidation period and specify the first day
of
such period in a statement attached to the Trust Fund’s final Tax Return
pursuant to Treasury Regulation (S)1.86OF-1. The Trustee shall satisfy all
the
requirements of a qualified liquidation under 86OF of the Code and any
regulations thereunder, as evidenced by an Opinion of Counsel obtained at the
expense of the Master Servicer;
(ii) During
such 90-day liquidation period, and at or prior to the time of making of the
final payment on the Certificates, the Master Servicer shall sell all of the
assets of the Trust Fund for cash; and
(iii) At
the
time of the making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the Holders
of
the Class R Certificates all remaining cash on hand (other than cash retained
to
meet claims), and the Trust Fund shall terminate at that time.
(b) By
their
acceptance of the Class R Certificates, the Holders thereof hereby agree to
authorize the Trustee to specify the 90-day liquidation period for the Trust
Fund, which authorization shall be binding upon all successor Class R
Certificateholders.
-87-
ARTICLE
X
REMIC
PROVISIONS
|
SECTION
10.01.
|
REMIC
Administration.
|
(a) The
Trustee shall make an election to treat the Trust Fund as a REMIC under the
Code
and, if necessary, under applicable state law. Such election will be made on
Form 1066 or other appropriate federal tax or information return or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. For the purposes of the
REMIC election in respect of the Trust Fund, the Class A and Class B
Certificates shall be designated as the “regular interests” and the Class R
Certificates shall be designated as the sole class of “residual interest” in the
Trust Fund. The Trustee shall not permit the creation of any “interests” in the
Trust Fund (within the meaning of Section 86OG of the Code) other than the
Regular Certificates and the Residual Certificates.
(b) The
Closing Date is hereby designated as the “startup day” of the Trust Fund within
the meaning of Section 86OG(a)(9) of the Code.
(c) The
Trustee shall hold a Class R Certificate representing a 0.01 % Percentage
interest of all Class R Certificates and shall be designated as the tax matters
person of the Trust Fund in the manner provided under Treasury regulations
section 1.86OF-4(d) and temporary Treasury regulations section
301.6231(a)(7)-1T. The Trustee, as tax matters person, shall (i) act on behalf
of the Trust Fund in relation to any tax matter or controversy involving the
Trust Fund and (ii) represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. To the extent authorized under the Code and
the
regulations promulgated thereunder, each Holder of a Class R Certificate, hereby
irrevocably appoints and authorizes the Trustee to be its attorney-in-fact
for
purposes of signing any Tax Returns required to be filed on behalf of the Trust
Fund. The legal expenses and costs of any such action described in this
subsection and any liability resulting therefrom shall constitute expenses
of
the Trust Fund and the Trustee shall be entitled to reimbursement therefor
unless such legal expenses and costs are incurred by reason of the Trustee’s
willful misfeasance, bad faith or negligence.
(d) Except
as
provided in Section 4.05, the Trustee shall prepare or cause to be prepared,
sign and file all of the Tax Returns in respect of the Trust Fund created
hereunder. The expenses of preparing and filing such returns shall be borne
by
the Trustee without any right of reimbursement therefor.
(e) The
Trustee shall perform on behalf of the Trust Fund all reporting and other tax
compliance duties that are the responsibility of the Trust Fund under the Code,
REMIC Provisions or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Among its other duties, as
required by the Code, the REMIC Provisions or other such compliance guidance,
the Trustee shall provide (i) to any Transferor of a Class R Certificate such
information as is necessary for the application of any tax relating to the
transfer of a Class R Certificate to any Person who is not a Permitted
Transferee, (ii) Certificateholders such information or reports as are required
by the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service the name, title, address
and telephone number of the person who will serve as the representative of
the
Trust Fund. In addition, the Depositor shall provide or cause to be provided
to
the Trustee, within ten (10) days after the Closing Date, all information or
data that the Trustee reasonably determines to be relevant for tax purposes
as
to the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flow
of
the Certificates.
-88-
(f) The
Trustee shall take such action and shall cause the Trust Fund created hereunder
to take such action as shall be necessary to create or maintain the status
thereof as a REMIC under the REMIC Provisions (and the Master Servicer shall
assist it, to the extent reasonably requested by it). The Trustee shall not
take
any action, cause the Trust Fund 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 the Trust Fund
as a
REMIC or (ii) result in the imposition of a tax upon the Trust Fund (including
but not limited to the tax on prohibited transactions as defined in Section
86OF(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 86OG(d) of the Code) (either such event, an “Adverse REMIC Event”)
unless the Trustee received an Opinion of Counsel (at the expense of the party
seeking to take such action but in no event shall such Opinion of Counsel be
an
expense of the Trustee) to the effect that the contemplated action will not,
with respect to the Trust Fund created hereunder, endanger such status or result
in the imposition of such a tax. The Master Servicer shall not take or fail
to
take any action (whether or not authorized hereunder) as to which the Trustee
has advised it in writing that it has received an Opinion of Counsel to the
effect that an Adverse REMIC Event could occur with respect to such action.
In
addition, prior to taking any action with respect to the Trust Fund or its
assets, or causing the Trust Fund to take any action, which is not expressly
permitted under the terms of this Agreement, the Master Servicer will consult
with the Trustee or its designee, in writing, with respect to whether such
action could cause an Adverse REMIC Event to occur with respect to the Trust
Fund, and the Master Servicer shall not take any such action or cause the Trust
Fund to take any such action as to which the Trustee has advised it in writing
that an Adverse REMIC Event could occur. The Trustee may consult with counsel
to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not permitted by this Agreement (but in no event
shall such cost be an expense of the Trustee). At all times as may be required
by the Code, the Trustee will ensure that substantially all of the assets of
the
Trust Fund will consist of “qualified mortgages” as defined in Section
86OG(a)(3) of the Code and “permitted investments” as defined in Section
86OG(a)(5) of the Code.
(g) In
the
event that any tax is imposed on “prohibited transactions” of the Trust Fund
created hereunder as defined in Section 86OF(a)(2) of the Code, on “net income
from foreclosure property” of the Trust Fund as defined in Section 86OG(c) of
the Code, on any contributions to the Trust Fund after the Startup Day therefor
pursuant to Section 86OG(d) of the Code, or any other tax is imposed by the
Code
or any applicable provisions of state or local tax laws, such tax shall be
charged (i) to the Trustee pursuant to Section 10.03 hereof, if such tax arises
out of or results from the willful misfeasance, bad faith or negligence in
performance by the Trustee of any of its obligations under this Article X,
(ii)
to the Master Servicer pursuant to Section 10.03 hereof, if such tax arises
out
of or results from a breach by the Master Servicer of any of its obligations
under Article III or this Article X, or otherwise (iii) against amounts on
deposit in the Custodial Account and shall be paid by withdrawal
therefrom.
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(h) On
or
before April 15 of each calendar year, commencing April 15, 20_, the Trustee
shall deliver to the Master Servicer and each Rating Agency a Certificate from
a
Responsible Officer of the Trustee stating the Trustee’s compliance with this
Article X.
(i) The
Master Servicer and the Trustee shall, for federal income tax purposes, maintain
books and records with respect to the Trust Fund on a calendar year and on
an
accrual basis.
(j) Following
the Startup Day, the Trustee shall not accept any contributions of assets to
the
Trust Fund other than in connection with any Qualified Substitute Mortgage
Loan
delivered in accordance with Section 2.04 unless it shall have received an
Opinion of Counsel (which such Opinion of Counsel shall not be an expense of
the
Trustee) to the effect that the inclusion of such assets in the Trust Fund
will
not cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject the Trust Fund to any tax under the
REMIC Provisions or other applicable provisions of federal, state and local
law
or ordinances.
(k) Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
the Trust Fund will receive a fee or other compensation for services nor permit
either such REMIC to receive any income from assets other than “qualified
mortgages” as defined in Section 86OG(a)(3) of the Code or “permitted
investments” as defined in Section 86OG(a)(5) of the Code.
(l) Solely
for purposes of satisfying Section 1.86OG-1(a)(4)(iii) of the Treasury
regulations, and based on certain assumptions described below, the “latest
possible maturity date” by which the Certificate Principal Balances of the
Certificates representing a regular interest in the Trust Fund would be reduced
to zero is __________ 25, 20__, which is the Distribution Date immediately
following the latest scheduled maturity of any Mortgage Loan as determined
assuming that (i) scheduled interest and principal payments on the Mortgage
Loans are received in a timely manner, with no delinquencies or losses, (ii)
there are no principal prepayments, and (iii) neither the Seller nor the Master
Servicer will repurchase any Mortgage Loans.
|
SECTION
10.02.
|
Prohibited
Transactions and Activities.
|
Neither
the Depositor, the Master Servicer nor the Trustee shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
foreclosure of a Mortgage Loan, including but not limited to, the acquisition
or
sale of a Mortgaged Property acquired by deed in lieu of foreclosure, (ii)
the
bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund pursuant
to Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant
to
Article II or III of this Agreement) nor acquire any assets for the Trust Fund,
nor sell or dispose of any investments in the Custodial Account or the
Certificate Account for gain, nor accept any contributions to the Trust Fund
after the Closing Date unless it has received an Opinion of Counsel (at the
expense of the party seeking to cause such sale, disposition, substitution
or
acquisition but in no event shall such Opinion of Counsel be an expense of
the
Trustee) that such sale, disposition, substitution or acquisition will not
(a)
affect adversely the status of the Trust Fund as a REMIC or (b) cause the Trust
Fund to be subject to a tax on “prohibited transactions” or “contributions”
pursuant to the REMIC Provisions.
-90-
|
SECTION
10.03.
|
Master
Servicer and Trustee
Indemnification.
|
(a) The
Trustee agrees to indemnify the Trust Fund, the Depositor and the Master
Servicer for any taxes and costs including, without limitation, any reasonable
attorneys fees imposed on or incurred by the Trust Fund, the Depositor or the
Master Servicer, as a result of the willful misfeasance, bad faith or negligence
by the Trustee with respect to the Trustee’s covenants set forth in this Article
X.
(b) The
Master Servicer agrees to indemnify the Trust Fund, the Depositor and the
Trustee for any taxes and costs (including, without limitation, any reasonable
attorneys’ fees) imposed on or incurred by the Trust Fund, the Depositor or the
Trustee, as a result of a breach of the Master Servicer’s covenants set forth in
this Article X or in Article III with respect to compliance with the REMIC
Provisions, including without limitation, any penalties arising from the
Trustee’s execution of Tax Returns prepared by the Master Servicer that contain
errors or omissions.
-91-
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
SECTION
11.01.
|
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, the Master Servicer
and the Trustee without the consent of any of the Certificateholders, (i) to
cure any ambiguity, (ii) to correct or supplement any provisions herein which
may be defective or inconsistent with any other provisions herein or to correct
any error, (iii) to change the timing and/or nature of deposits in the
Certificate Account, provided that (a) such change would not adversely affect
in
any material respect the interests of any Certificateholder, as evidenced by
an
Opinion of Counsel, and (b) such change would not adversely affect the then-
current rating of any rated class of Certificates, as evidenced by a letter
from
each applicable Rating Agency, (iv) to modify, eliminate or add to any of the
provisions of the Trust Fund (a) to such extent as shall be necessary to
maintain the qualification of the Trust Fund as a REMIC or to avoid or minimize
the risk of imposition of any tax on the Trust Fund, provided that the Trustee
has received an Opinion of Counsel to the effect that (1) such action is
necessary or desirable to maintain such qualification or to avoid or minimize
such risk, and (2) such action will not adversely affect in any material respect
the interests of any Certificateholder, or (b) to restrict the transfer of
the
Class R Certificates, provided that the Depositor has determined that the then-
current ratings of the Class A Certificates will not be adversely affected,
as
evidenced by a letter from each Rating Agency, and that any such amendment
will
not give rise to any tax with respect to the transfer of the Class R
Certificates to a non-Permitted Transferee, (v) to make any other provisions
with respect to matters or questions arising this Agreement which are not
materially inconsistent with the provisions thereof, provided that such action
will not adversely affect in any material respect the interests of any
Certificateholder, or (vi) to amend specified provisions that are not material
to holders of any class of Certificates offered hereunder.
This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights allocated to each Class
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 received on Mortgage Loans which are required to be distributed
on
any Certificate without the consent of the Holder of such Certificate, or (ii)
reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of
all Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Seller or the
Master Servicer or any affiliate thereof shall be entitled to Voting Rights
with
respect to matters described in clauses (i) and (ii) of this
paragraph.
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 (provided by the Person requesting such amendment) to the effect that
such amendment will not result in the imposition of any tax on the Trust Fund
pursuant to the REMIC Provisions or cause the Trust Fund to fail to qualify
as a
REMIC at any time that any of the Certificates are outstanding. Promptly after
the execution of any such amendment the Trustee shall furnish a statement
describing the amendment to each Certificateholder.
-92-
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
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.
Prior
to
executing any amendment pursuant to this Section, the Trustee shall be entitled
to receive an Opinion of Counsel (provided by the Person requesting such
amendment) to the effect that such amendment is authorized or permitted by
this
Agreement. The cost of an Opinion of Counsel delivered pursuant to this Section
11.01 shall be an expense of the party requesting such amendment, but in any
case shall not be an expense of the Trustee.
The
Trustee may, but shall not be obligated to enter into any amendment pursuant
to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
|
SECTION
11.02.
|
Recordation
of Agreement; Counterparts.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Master Servicer and at
the
expense of the Depositor on direction by the Trustee, but only upon direction
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the
Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
|
SECTION
11.03.
|
Limitation
on Rights of Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to 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.
No
Certificateholder shall have any right to vote (except as expressly provided
for
herein) or in any manner otherwise control the operation and management of
the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Certificates, be construed so as
to
constitute the Certificateholders from time to time as partners or members
of an
association; nor shall any Certificateholder be under any liability to any
third
party by reason of any action taken by the parties to this Agreement pursuant
to
any provision hereof.
-93-
No
Certificateholder shall have any right by virtue 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 notice of an Event of Default, or of a default
by
the Seller or the Trustee in the performance of any obligation hereunder, and
of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of Certificates entitled to at least 25% of the Voting Rights 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 such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and 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 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 equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at
law
or in equity.
|
SECTION
11.04.
|
Governing
Law.
|
This
Agreement and the Certificates shall be construed in accordance with the laws
of
the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
|
SECTION
11.05.
|
Notices.
|
All
demands, notices and direction hereunder shall be in writing and shall be deemed
effective upon receipt when delivered to (a) in the case of the Depositor,
________________________, ____________________________________, Attention:
____________________, or such other address as may hereafter be furnished to
the
Trustee and the Master Servicer in writing by the Depositor, (b) in the case
of
the Trustee _____________________, Attention: _______________________________,
or such other address as may hereafter be furnished to the Master Servicer
and
the Depositor in writing by the Trustee and (c) in the case of the Master
Servicer, [Name of Master Servicer] ________________________,
____________________________________, Attention: __________________________
or
such other address as may hereafter be furnished to the Depositor and the
Trustee in writing. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
-94-
|
SECTION
11.06.
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
|
SECTION
11.07.
|
Successors
and Assigns; Third Party
Beneficiary.
|
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Trustee and the Certificateholders.
The parties hereto agree that the Seller is the intended third party beneficiary
of Sections 3.07, 3.10 and 3.22 hereof, and that the Seller may enforce such
provisions to the same extent as if the Seller were a party to this
Agreement.
|
SECTION
11.08.
|
Article
and Section Headings.
|
The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
|
SECTION
11.09.
|
Notice
to Rating Agencies and
Certificateholder.
|
The
Trustee shall use its best efforts to promptly provide notice to the Rating
Agency referred to below with respect to each of the following of which it
has
actual knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Master Servicer or the Trustee;
4. The
repurchase or substitution of Mortgage Loans pursuant to
Section 2.04;
5. The
final payment to Certificateholders; and
6. Any
change in the location of the Custodial Account or the Certificate
Account.
In
addition, the Trustee shall promptly furnish to the Rating Agency copies of
the
following:
-95-
1. Each
report to Certificateholders described in Section 4.02;
2. Each
annual independent public accountants’ servicing report received as described in
Section 3.20; and
3. Each
Master Servicer compliance report received as described in
Section 3.19.
Any
such
notice pursuant to this Section 11.09 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to (i) in the case of
[__________________] Attention: ______________ the case of
[____________________________________________________] or, in each case, such
other address as such Rating Agency may designate in writing to the parties
thereto.
-96-
IN
WITNESS WHEREOF, the Depositor, the Master Servicer and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized all as of the day and year first above written.
Company
By:
____________________________________
[NAME
OF
MASTER SERVICER],
Master
Servicer
By:_____________________________________
[NAME
OF
TRUSTEE],
Trustee
By:
____________________________________
EXHIBIT
A-1
FORM
OF
CLASS [A-_] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
A-1-1
|
Certificate
No.__
Class
A-____
|
_____%
Pass-Through Rate
|
|
Date
of Pooling and Servicing
Agreement
and Cut-off Date:
_____________
1, 20__
|
Percentage
Interest:____%
|
|
First
Distribution Date:
_____________,
20__
|
Aggregate
Initial [Certificate Principal Balance]
[Notional
Amount] of the Class A-__ Certificates:
$______________
|
|
Master
Servicer:
[Name
of Master Servicer]
|
Initial
[Certificate Principal
Balance]
[Notional Amount] of this Certificate:
$______________
|
|
Assumed
Final
Distribution
Date:
__________
25, 20__
|
CUSIP:__________
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
200_-_
evidencing
a percentage interest in the distributions allocable to the Class A- ___
Certificates with respect to a Trust Fund consisting primarily of a pool of
conforming one- to four-family fixed-rate first lien mortgage loans formed
and
sold by BNP PARIBAS MORTGAGE SECURITIES LLC
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in BNP Paribas Mortgage Securities LLC,
the Master Servicer, the Trustee referred to below or any of their affiliates.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality or by [Name of Master
Servicer], the Master Servicer, the Trustee or any of their affiliates. None
of
the Depositor, the Master Servicer or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This
certifies that [Cede & Co.] is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Initial
[Certificate Principal Balance] [Notional Amount] of this Certificate by the
aggregate Initial [Certificate Principal Balance] [Notional Amount] of all
Class
A-____ Certificates, both as specified above) in certain distributions with
respect to the Trust Fund consisting primarily of an interest in a pool of
conventional one- to four-family fixed-rate first lien mortgage loans (the
“Mortgage Loans”), formed and sold by BNP Paribas Mortgage Securities LLC
(hereinafter called the “Company,” which term includes any successor entity
under the Agreement referred to below). The Trust Fund was created pursuant
to a
Pooling and Servicing Agreement dated as specified above (the “Agreement”) among
the Depositor, the Master Servicer and [Name of Trustee], as trustee (the
“Trustee”), 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 Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
A-1-2
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing as described in the
Agreement, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such Distribution Date (the “Record Date”), from the Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount of [interest and] [principal],
if
any, required to be distributed to Holders of Class A-____Certificates on such
Distribution Date.
Distributions
on this Certificate will be made either by the Trustee or by a Paying Agent
appointed by the Trustee either in immediately available funds (by wire transfer
or otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Trustee or such Paying Agent at least 5 Business
Days
prior to the related Record Date, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose in the City and State of New York. The Initial [Certificate
Principal Balance] [Notional Amount] of this Certificate is set forth above.
The
[Certificate Principal Balance] [Notional Amount] hereof will be reduced to
the
extent of [distributions allocable to principal and] any Realized Losses
allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified
hereon (herein collectively called the “Certificates”).
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 Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries
on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
A-1-3
As
provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made
by
the Master Servicer from time to time for purposes other than distributions
to
Certificateholders, such purposes including without limitation reimbursement
to
the Trustee, the Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
The
Agreement permits, with certain exceptions therein provided, the amendment
of
the Agreement and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests
of
each Class of Certificates affected thereby. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders
of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
Classes and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of authorized denominations evidencing the
same Class and aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as
the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-1-4
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of New York.
The
obligations created by the Agreement in respect of the Certificates and the
Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu
of
foreclosure of any Mortgage Loan and (ii) the purchase by the Class R
Certificateholder from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, thereby effecting early
retirement of the Certificates. The Agreement permits, but does not require,
the
Class R Certificateholder to (i) purchase at a price determined as provided
in
the Agreement all remaining Mortgage Loans and all property acquired in respect
of any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Aggregate [Stated Principal Balance] [Notional Amount]
of
the Mortgage Loans as of the Distribution Date upon which the proceeds of any
such purchase are distributed is less than one percent of the Aggregate [Stated
Principal Balance] [Notional Amount] of the Mortgage Loans at the Cut-off
Date.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
A-1-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated: __________
__, 200_
|
[NAME
OF TRUSTEE],
as
Trustee
|
|
By:
________________________________
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class A-____ Certificates referred to in the within-mentioned
Agreement.
|
[NAME
OF TRUSTEE],
as
Trustee
|
|
|
By:
________________________________
Authorized
Signatory
|
A-1-6
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_____________________________________ (Please print or typewrite name and
address including postal zip code of assignee) a Percentage Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
______________________________________________________________________________
______________________________________________________________________________
|
Dated:
|
___________________________________________
|
|
Signature
by or on behalf of assignor
|
Signature
Guaranteed
A-1-7
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
___________________________________for the account of __________________ account
number _______________, or, if mailed by check, to ________________________.
Applicable statements should be mailed
to____________________________________________.
This
information is provided by __________________, the assignee named above, or
________________, as its agent.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
CLASS B-_ CERTIFICATES
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND
THE [CLASS M CERTIFICATES] [THE CLASS B-1 CERTIFICATES] [AND THE CLASS B-2
CERTIFICATES], AS DESCRIBED IN THE AGREEMENT (AS DEFINED
BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(d) OF THE AGREEMENT
OR
AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (“ERISA”), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER
SERVICER, THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
A-2-1
|
Certificate
No. 1
|
_______%
Pass-Through Rate
|
|
Class
[B-_]
|
Aggregate
Initial [Certificate Principal Balance] [Notional Amount] of
the
Class
[B-_] Certificates:
$_________________
|
|
Date
of Pooling and Servicing
Agreement
and Cut-off Date:
_____________
1, 200_
|
Initial
[Certificate Principal Balance] [Notional Amount]
of
this Certificate (“Denomination”):
$______________
|
|
First
Distribution Date:
_____________,
200_
|
|
|
Master
Servicer:
[Name
of Master Servicer]
|
CUSIP:
|
|
Assumed
Final Distribution Date:
_____________,
20__
|
Percentage
Interest of this Certificate:
100.00%
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
200_-_
evidencing
percentage interest in the distributions allocable to the Class [B-_]
Certificates with respect to a Trust Fund consisting primarily of a pool of
conforming one- to four- family fixed-rate first lien mortgage loans formed
and
sold by BNP PARIBAS MORTGAGE SECURITIES LLC
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in BNP Paribas Mortgage Securities LLC,
the Master Servicer, the Trustee referred to below or any of their affiliates.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality or by [Name of Master
Servicer], the Master Servicer, the Trustee or any of their affiliates. None
of
the Depositor, the Master Servicer or any of their affiliates will have any
obligation with respect to any certificate or other or obligation secured by
or
payable from payments on the Certificates.
This
certifies that ___________ is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial [Certificate
Principal Balance] [Notional Amount] of this Certificate by the aggregate
Initial [Certificate Principal Balance] [Notional Amount] of all Class [B-_]
Certificates, both as specified above), in certain distributions with respect
to
a Trust Fund consisting primarily of a pool of one- to four-family fixed-rate
first lien mortgage loans (the “Mortgage Loans”), formed and sold by BNP Paribas
Mortgage Securities LLC (hereinafter called the “Company,” which term includes
any successor entity under the Agreement referred to below). The Trust Fund
was
created pursuant to a Pooling and Servicing Agreement dated as specified above
(the “Agreement”) among the Depositor, the Master Servicer and [Name of
Trustee], as trustee (the “Trustee”), 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 the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
A-2-2
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing as described in the
Agreement, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such Distribution Date (the “Record Date”), from the Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if
any)
required to be distributed to Holders of Class [B-_] Certificates on such
Distribution Date.
Distributions
on this Certificate will be made either by the Trustee or by a Paying Agent
appointed by the Trustee either in immediately available funds (by wire transfer
or otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Trustee or such Paying Agent at least 5 Business
Days
prior to the related Record Date, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose in the City and State of New York. The Initial [Certificate
Principal Balance] [Notional Amount] of this Certificate is set forth above.
The
[Certificate Principal Balance] [Notional Amount] hereof will be reduced to
the
extent of [the distributions allocable to principal and] any Realized Losses
allocable hereto.
No
transfer of this Class [B-_] Certificate will be made unless such transfer
is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance
with
said Act and laws. In the event that such a transfer is to be made, (i) the
Trustee shall require an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee that such transfer is exempt (describing
the applicable exemption and the basis therefor) from or is being made pursuant
to the registration requirements of the Securities Act of 1933, as amended,
and
of any applicable statute of any state and (ii) the transferee and transferor
shall execute a representation letter in the form described by the Agreement.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Depositor, the Master Servicer and the
Certificate Registrar acting on behalf of the Trustee 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. In connection with any such transfer, the Trustee
will also require either (i) an opinion of counsel acceptable to and in form
and
substance satisfactory to the Trustee with respect to the permissibility of
such
transfer under the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) and Section 4975 of the Internal Revenue Code (the “Code”) and
stating, among other things, that the transferee’s acquisition of a Class [B-_]
Certificate will not constitute or result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code or (ii) a representation
letter, in the form as described by the Agreement, either stating that the
transferee is not an employee benefit or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code (a “Plan”), or any
other person (including an investment manager, a named fiduciary or a trustee
of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with “plan assets” of any Plan, or stating that the transferee is an
insurance company, the source of funds to be used by it to purchase the
Certificate is an “insurance company general account” (within the meaning of
Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60), and
the purchase is being made in reliance upon the availability of the exemptive
relief afforded under Sections I and III of PTCE 95-60.
A-2-3
This
Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified
hereon (herein collectively called the “Certificates”).
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 Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries
on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As
provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made
by
the Master Servicer from time to time for purposes other than distributions
to
Certificateholders, such purposes including without limitation reimbursement
to
the Trustee, the Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
The
Agreement permits, with certain exceptions therein provided, the amendment
of
the Agreement and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests
of
each Class of Certificates affected thereby. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders
of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
A-2-4
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
Classes and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of authorized denominations evidencing the
same Class and aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as
the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of New York.
The
obligations created by the Agreement in respect of the Certificates and the
Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu
of
foreclosure of any Mortgage Loan and (ii) the purchase by the Class R
Certificateholder from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, thereby effecting early
retirement of the Certificates. The Agreement permits, but does not require,
the
Class R Certificateholder to (i) purchase at a price determined as provided
in
the Agreement all remaining Mortgage Loans and all property acquired in respect
of any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Aggregate [Stated Principal Balance] [Notional Amount]
of
the Mortgage Loans as of the Distribution Date upon which the proceeds of any
such purchase are distributed is less than one percent of the Aggregate [Stated
Principal Balance] [Notional Amount] of the Mortgage Loans at the Cut-off
Date.
A-2-5
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
A-2-6
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated: ___________
__, 200_
|
[NAME
OF TRUSTEE],
as
Trustee
|
|
By:_____________________________
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [B-_] Certificates referred to in the within-mentioned
Agreement.
|
[NAME
OF TRUSTEE],
as
Trustee
|
|
|
By:_______________________________
Authorized
Signatory
|
A-2-7
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_____________________________________ (Please print or typewrite name and
address including postal zip code of assignee) a Percentage Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address
______________________________________________________________________________
______________________________________________________________________________
|
Dated:
|
___________________________________________
|
|
Signature
by or on behalf of assignor
|
A-2-8
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_________________________ for
the
account of _______________, account
number __________________, or, if mailed by check, to ________________________.
Applicable
statements should be mailed to ____________________.
This
information is provided by ________________, the
assignee named above, or __________________, as
its
agent.
A-2-9
EXHIBIT
B
FORM
OF
CLASS R CERTIFICATE
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “RESIDUAL
INTEREST” IN ONE OR MORE “REAL ESTATE MORTGAGE INVESTMENT CONDUITS” AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE “CODE”).
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE AGREEMENT
OR
AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE DEPOSITOR AND
THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE
LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER,
THE DEPOSITOR OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO
THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT (THE
“AGREEMENT”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER
AND
THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE
OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B)
ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE, (C)
ANY
ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREIN REFERRED TO
AS A
“DISQUALIFIED ORGANIZATION”) OR (D) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2)
NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX
AND
(3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE, EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE
OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF
THIS
PARAGRAPH.
B-1
|
Certificate
No. 1
|
_______%
Pass-Through Rate
|
|
Class
R Senior
|
|
|
Date
of Pooling and, Servicing
Agreement
and Cut-off Date:
______________
1, 200_
|
Percentage
Interest: 100.00%
|
|
First
Distribution Date:
______________,
200_
|
Aggregate
Initial [Certificate Principal Balance] [Notional Amount] of the
Class
R Certificates:
$_________________
|
|
Master
Servicer:
[Name
of Master Servicer]
|
Initial
[Certificate Principal Balance] [Notional Amount] of this Class
R Certificates:
$_________________
|
|
Assumed
Final Distribution Date:
______________,
20__
|
CUSIP:
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
20_-_
evidencing
a percentage interest in any distributions allocable to the Class R Certificates
with respect to a Trust Fund consisting primarily of a pool of one- to
four-family fixed-rate first lien mortgage loans formed and sold by BNP PARIBAS
MORTGAGE SECURITIES LLC
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in BNP Paribas Mortgage Securities LLC,
the Master Servicer, the Trustee referred to below or any of their affiliates.
Neither this Certificate nor the underlying Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality or by [Name of Master
Servicer], the Master Servicer, the Trustee or any of their affiliates. None
of
the Depositor, the Master Servicer or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
B-2
This
certifies that ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate stated above in certain distributions
with respect to a Trust Fund, consisting primarily of a pool of one- to
four-family fixed-rate first lien mortgage loans (the “Mortgage Loans”), formed
and sold by BNP Paribas Mortgage Securities LLC (hereinafter called the
“Company,” which term includes any successor entity under the Agreement referred
to below). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as specified above (the “Agreement”) among the Depositor, the
Master Servicer and [Name of Trustee], as trustee (the “Trustee”), 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 Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the Distribution Date”), commencing as described in the
Agreement, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
the month of such Distribution Date (the “Record Date”), from the Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount of interest and principal, if
any ,
required to be distributed to Holders of Class R Certificates on such
Distribution Date.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person
holding or acquiring any Ownership Interest in this Certificate must be a United
States Person and a Permitted Transferee, (ii) the transfer of any Ownership
Interest in this Certificate will be conditioned upon the delivery to the
Trustee of, among other things, an affidavit to the effect that it is a United
States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Depositor will have the right,
in
its sole discretion and without notice to the Holder of this Certificate, to
sell this Certificate to a purchaser selected by the Depositor, which purchaser
may be the Depositor, or any affiliate of the Depositor, on such terms and
conditions as the Depositor may choose.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose in the City and State of New York. The Initial [Certificate
Principal Balance] [Notional Amount] of this Certificate is set forth above.
The
[Certificate Principal Balance] [Notional Amount] hereof will be reduced to
the
extent of [distributions allocable to principal] and any Realized Losses
allocable hereto. Notwithstanding the reduction of the [Certificate Principal
Balance] [Notional Amount] hereof to zero, this Certificate will remain
outstanding under the Agreement and the Holder hereof may have additional
obligations with respect to this Certificate, including tax liabilities, and
may
be entitled to certain additional distributions hereon, in accordance with
the
terms and provisions of the Agreement.
B-3
In
connection with any transfer of this Certificate, the Trustee will also require
either (i) an opinion of counsel acceptable to and in form and substance
satisfactory to the Trustee with respect to the permissibility of such transfer
under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)
and Section 4975 of the Internal Revenue Code (the “Code”) and stating, among
other things, that the transferee’s acquisition of a Class R Certificate will
not constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code or (ii) a representation letter, in
the
form as described by the Agreement, stating that the transferee is not an
employee benefit or other plan subject to the prohibited transaction provisions
of ERISA or Section 4975 of the Code (a “Plan”), or any other person (including
an investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with “plan
assets” of any Plan.
This
Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified
hereon (herein collectively called the “Certificates”).
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 Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries
on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As
provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made
by
the Master Servicer from time to time for purposes other than distributions
to
Certificateholders, such purposes including without limitation reimbursement
to
the Trustee, the Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
The
Agreement permits, with certain exceptions therein provided, the amendment
of
the Agreement and the modification of the rights and obligations of the
Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests
of
each Class of Certificates affected thereby. Any such consent by the Holder
of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders
of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
B-4
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee, duly endorsed by, or accompanied by an,
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
Classes and in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein, set forth, Certificates
are exchangeable for new Certificates of authorized denominations evidencing
the
same Class and aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Trustee and the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered
as
the owner hereof for all purposes, and neither the Depositor, the Master
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This
Certificate shall be governed by and construed in accordance with the laws
of
the State of New York.
The
obligations created by the Agreement in respect of the Certificates and the
Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu
of
foreclosure of any Mortgage Loan and (ii) the purchase by the Class R
Certificateholder from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, thereby effecting early
retirement of the Certificates. The Agreement permits, but does not require,
the
Class R Certificateholder to (i) purchase at a price determined as provided
in
the Agreement all remaining Mortgage Loans and all property acquired in respect
of any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Aggregate [Stated Principal Balance] [Notional Amount]
of
the Mortgage Loans as of the Distribution Date upon which the proceeds of any
such purchase are distributed is less than one percent of the Aggregate [Stated
Principal Balance] [Notional Amount] of the Mortgage Loans at the Cut-off
Date.
B-5
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purpose have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
B-6
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated: _________
__, 200_
|
[NAME
OF TRUSTEE],
as
Trustee
|
|
By:_________________________________
Authorized
Signatory
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class R Certificates referred to in the within-mentioned
Agreement.
|
[NAME
OF TRUSTEE],
as
Trustee
|
|
|
By:__________________________________
Authorized
Signatory
|
B-7
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_____________________________________________________________________________
_____________________________________________________________________________
(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
_____________________________________________________________________________
Dated:
_________________
Signature
by or on behalf of assignor
B-8
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
___________________________________________________________________________
_____________________________________________________________________________
for
the
account of
______________________________________________________________,
account
number __________________, or, if mailed by check, to
________________________.
Applicable
statements should be mailed to
___________________________________________
_____________________________________________________________________________.
This
information is provided by
___________________________________________________,
the
assignee named above, or
_____________________________________________________,
as
its
agent.
B-9
EXHIBIT
C
FORM
OF
TRUSTEE’S INITIAL CERTIFICATION
__________
__, 200_
[Name
of
Master Servicer]
_____________________
_____________________
|
Re:
|
Pooling
and Servicing Agreement, dated as of __________ 1, 200_ among BNP
Paribas
Mortgage Securities LLC, [Name of Master Servicer], and [Name of
Trustee],
Mortgage Pass-Through Certificates Series
200_-_
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement, the undersigned, as Trustee, hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or listed on the attachment hereto) it has reviewed the Mortgage
File and the Mortgage Loan Schedule and has determined that: (i) all documents
required to be included in the Mortgage File are in its possession; (ii) such
documents have reviewed by it and appear regular on their face and relate to
such Mortgage Loan; and (iii) base on examination by it, and only as to such
documents, the information set forth in items (i), (ii), (iii) (iv) of the
definition or description of “Mortgage Loan Schedule” is correct.
The
trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representation that any
documents specified in clause (vi) of Section 2.01 should be included in any
Mortgage File. The Trustee makes no representations as to and shall not be
responsible to verify: (i) the validity, legality, sufficiency, enforceability,
due authorization, recordability or genuineness of any of the documents
contained in each Mortgage File of any of the Mortgage Loans identified on
the
Mortgage Loan Schedule, (ii) the collectability, insurability, effectiveness
or
suitability of any such Mortgage Loan, or (iii) the existence of any assumption,
modification, written assurance or substitution agreement with respect to any
Mortgage File if no such documents appear in the Mortgage File delivered to
the
Trustee.
C-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Pooling and Servicing Agreement.
[NAME
OF
TRUSTEE]
By:______________________________
Name:
Title:
C-2
EXHIBIT
D
FORM
OF
TRUSTEE FINAL CERTIFICATION
__________
__, 200_
[Name
of
Master Servicer]
_____________________
_____________________
|
Re:
|
Pooling
and Servicing Agreement, dated as of __________ 1, 200_ among BNP
Paribas
Mortgage Securities LLC, [Name of Master Servicer], and [Name of
Trustee],
Mortgage Pass-Through Certificates Series
200_-_
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement, the undersigned, as Trustee, hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or listed on the attachment hereto) it has received the documents
set forth in Section 2.01.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representation that any
documents specified in clause (vi) of Section 2.01 should be included in any
Mortgage File. The Trustee makes no representations as to and shall not be
responsible to verify: (i) the validity, legality, sufficiency, enforceability,
due authorization, recordability or genuineness of any of the documents
contained in each Mortgage File of any of the Mortgage Loans identified on
the
Mortgage Loan Schedule, (ii) the collectability, insurability, effectiveness
or
suitability of any such Mortgage Loan or (iii) the existence of any assumption,
modification, written assurance or substitution agreement with respect to any
Mortgage File if no such documents appear in the Mortgage File delivered to
the
Trustee.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in, the above-captioned Pooling and Servicing Agreement.
[NAME
OF
TRUSTEE]
By:_________________________________
Name:
Title:
D-1
EXHIBIT
E
FORM
OF
REMITTANCE REPORT
(PROVIDED
UPON REQUEST)
E-1
EXHIBIT
F-1
REQUEST
FOR RELEASE
(FOR
TRUSTEE)
|
Loan
Information
|
|
|
Name
of Mortgagor:
|
___________________________________
|
|
Master
Servicer
|
|
|
Loan
No.:
|
___________________________________
|
|
Trustee
|
|
|
Name:
|
___________________________________
|
|
Address:
|
___________________________________
|
|
Trustee
|
|
|
Mortgage
File No.:
|
___________________________________
|
Request
for Requesting Documents
(check
one):
|
1.
|
Mortgage
Loan Liquidated.
|
(The
Master Servicer hereby certifies that all proceeds of foreclosure, insurance
or
other liquidation have been finally received and deposited into the Custodial
Account to the extent required pursuant to the Pooling and Servicing
Agreement.)
|
2.
|
Mortgage
Loan in Foreclosure.
|
|
3.
|
Mortgage
Loan Repurchased Pursuant to Section 9.01 of the Pooling and Servicing
Agreement.
|
|
4.
|
Mortgage
Loan Repurchased Pursuant to Article II of the Pooling and Servicing
Agreement.
|
(The
Master Servicer hereby certifies that the repurchase price has been deposited
into the Custodial Account pursuant to the Pooling and Servicing
Agreement.)
F-1-1
|
5.
|
Other
(explain).
|
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
The
undersigned Master Servicer hereby acknowledges that it has received from the
Trustee for the Holders of BNP Paribas Mortgage Securities LLC, Mortgage
Pass-Through Certificates, Series 200_-_, the documents referred to below (the
“Documents”). All capitalized terms not otherwise defined in this Request for
Release shall have the meanings given them in the Pooling and Servicing
Agreement, dated as of __________ 1, 200_ (the “Pooling and Servicing
Agreement”), among BNP Paribas Mortgage Securities LLC, [Name of Master
Servicer] and the Trustee.
|
(
)
|
Promissory
Note dated _________________, 200_, in the original principal sum
of
$__________, made by __________________, payable to, or endorsed
to the
order of, the Trustee.
|
|
(
)
|
Mortgage
recorded on _________________________ as instrument no. ___________
in the
County Recorders Office of the County of ______________________,
State of
_____________________ in book/reel/docket of official records at
page/image _______________.
|
|
(
)
|
Deed
of Trust recorded on ____________________ as instrument no._____________
in the County Recorder’s Office of the County of ______________________,
State of _____________________in book/reel/docket __________________
of
official records at page/image
________________.
|
|
(
)
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on _______________
as instrument no. ______________ in the County Recorder’s Office of the
County of ________________, State of ___________________ in
book/reel/docket ____________ of official records at page/image
___________.
|
|
(
)
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
|
(
)
|
____________________________________
|
|
(
)
|
____________________________________
|
|
(
)
|
____________________________________
|
|
(
)
|
____________________________________
|
F-1-2
The
undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The
Master Servicer shall hold and retain possession of the Documents in trust
for
the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Master Servicer shall not cause or knowingly permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Master Servicer assert
or
seek to assert any claims or rights of setoff to or against the Documents or
any
proceeds thereof.
(3) The
Master Servicer shall return each and every Document previously requested from
the Mortgage File to the Custodian when the need therefor no longer exists,
unless the Mortgage Loan relating to the Documents has been liquidated and
the
proceeds thereof have been remitted to the Custodial Account and except as
expressly provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Master Servicer shall at all times be
earmarked for the account of the Trustee, and the Master Servicer shall keep
the
Documents and any proceeds separate and distinct from all other property in
the
Master Servicer’s possession, custody or control.
[NAME
OF
MASTER SERVICER]
By:
____________________________________
Title:
__________________________________
Date:
_________________, 200_
F-1-3
EXHIBIT
F-2
REQUEST
FOR RELEASE
[MORTGAGE
LOANS PAID IN FULL]
OFFICER’S
CERTIFICATE AND TRUST RECEIPT
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
200_-_
_____________________________________
HEREBY CERTIFIES THAT HE/SHE IS AN OFFICER OF THE MASTER SERVICER, HOLDING
THE
OFFICE SET FORTH BENEATH HIS/HER SIGNATURE, AND HEREBY FURTHER CERTIFIES AS
FOLLOWS:
WITH
RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
ALL
PAYMENTS OF PRINCIPAL, PREMIUM (IF ANY), AND INTEREST HAVE BEEN
MADE.
|
LOAN
NUMBER: _____________________
|
BORROWER’S
NAME: ______________
|
|
COUNTY:
___________________________
|
WE
HEREBY
CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS, WHICH ARE
REQUIRED TO BE DEPOSITED IN THE CUSTODIAL ACCOUNT PURSUANT TO SECTION 3.10
OF
THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE CREDITED.
|
_________
____________
|
DATED:
_____________________
|
// VICE
PRESIDENT
// ASSISTANT
VICE PRESIDENT
F-2-1
EXHIBIT
G-1
FORM
OF
INVESTOR REPRESENTATION LETTER
___________,200__
BNP
Paribas Mortgage Securities LLC
[Address]
[Name
of
Trustee]
______________________
______________________
Attention:
BNP Paribas Mortgage Securities LLC, Series 200_-_
|
Re:
|
BNP
Paribas Mortgage Securities LLC,
Mortgage
Pass-Through Certificates, Series 200_-_, Class
__
|
Ladies
and Gentlemen:
______________
(the “Purchaser”) intends to purchase from ______________ (the “Seller”)
$_________ Initial Certificate Principal Balance of Mortgage Pass-Through
Certificates, Series 200_-_, Class _____ (the “Certificates”), issued pursuant
to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”),
dated as of _________ 1, 200_ among BNP Paribas Mortgage Securities LLC, as
company (the “Company”), [Name of Master Servicer], as master servicer and [Name
of Trustee], as trustee (the “Trustee”). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Purchaser hereby certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
1. The
Purchaser understands that (a) the Certificates have not been and will not
be
registered or qualified under the Securities Act of 1933, as amended (the “Act”)
or any state securities law, (b) the Depositor is not required to so register
or
qualify the Certificates, (c) the Certificates may be resold only if registered
and qualified pursuant to the provisions of the Act or any state securities
law,
or if an exemption from such registration and qualification is available, (d)
the Pooling and Servicing Agreement contains restrictions regarding the transfer
of the Certificates and (e) the Certificates will bear a legend to the foregoing
effect.
G-1-1
2. The
Purchaser is acquiring the Certificates for its own account for investment
only
and not with a view to or for sale in connection with any distribution thereof
in any manner that would violate the Act or any applicable state securities
laws.
3. The
Purchaser is (a) a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters, and, in particular,
in such matters related to securities similar to the Certificates, such that
it
is capable of evaluating the merits and risks of investment in the Certificates,
(b) able to bear the economic risks of such an investment and (c) an “accredited
investor” within the meaning of Rule 501 (a) promulgated pursuant to the
Act.
4. The
Purchaser has been furnished with, and has had an opportunity to review (a)
[a
copy of the Private Placement Memorandum, dated _________ __, 200_, relating
to
the Certificates (b)] a copy of the Pooling and Servicing Agreement and [(b)]
[(c)] such other information concerning the Certificates, the Mortgage Loans
and
the Depositor as has been requested by the Purchaser from the Depositor or
the
Seller and is relevant to the Purchaser’s decision to purchase the Certificates.
The Purchaser has had any questions arising from such review answered by the
Depositor or the Seller to the satisfaction of the Purchaser. [If the Purchaser
did not purchase the Certificates from the Seller in connection with the initial
distribution of the Certificates and was provided with a copy of the Private
Placement Memorandum (the “Memorandum”) relating to the original sale (the
“Original Sale”) of the Certificates by the Depositor, the Purchaser
acknowledges that such Memorandum was provided to it by the Seller, that the
Memorandum was prepared by the Depositor solely for use in connection with
the
Original Sale and the Depositor did not participate in or facilitate in any
way
the purchase of the Certificates by the Purchaser from the Seller, and the
Purchaser agrees that it will look solely to the Seller and not to the Depositor
with respect to any damage, liability, claim or expense arising out of,
resulting from or in connection with (a) error or omission, or alleged error
or
omission, contained in the Memorandum, or (b) any information, development
or
event arising after the date of the Memorandum.]
5. The
Purchaser has not and will not nor has it authorized or will it authorize any
person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security
to
any person in any manner, (b) solicit any offer to buy or to accept a pledge,
disposition of other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest
in
any Certificate or any other similar security with any person in any manner,
(d)
make any general solicitation by means of general advertising or in any other
manner or (e) take any other action, that (as to any of (a) through (e) above)
would constitute a distribution of any Certificate under the Act, that would
render the disposition of any Certificate a violation of Section 5 of the Act
or
any state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer any of
the
Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
G-1-2
|
Very
truly yours,
____________________________________
(Purchaser)
|
|
|
By:
_________________________________
Name:
______________________________
Title:
_______________________________
|
G-1-3
EXHIBIT
G-2
FORM
OF
TRANSFEROR REPRESENTATION LETTER
______________,200___
BNP
Paribas Mortgage Securities LLC
[Address]
[Name
of
Trustee]
______________________
______________________
Attention:
BNP Paribas Mortgage Securities LLC, Series 200_-_
|
Re:
|
BNP
Paribas Mortgage Securities LLC,
Mortgage
Pass-Through Certificates, Series 200_-_, Class
__
|
Ladies
and Gentlemen:
In
connection with the sale by ___________ (the “Seller”) to ________ (the
“Purchaser”) of $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 200_-_, Class _____ (the “Certificates”),
issued pursuant to the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”), dated as of __________ 1, 200_ among BNP Paribas Mortgage
Securities LLC, as company (the “Company”), [Name of Master Servicer], as master
servicer and [Name of Trustee], as trustee (the “Trustee”). The Seller hereby
certifies, represents and warrants to, a covenants with, the Depositor and
the
Trustee that:
Neither
the Seller nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the “Act”), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in
any
manner set forth in the foregoing sentence with respect to any Certificate.
The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing
Agreement.
G-2-1
|
Very
truly yours,
____________________________________
(Seller)
|
|
|
By:
_________________________________
Name:
______________________________
Title:
_______________________________
|
G-2-2
EXHIBIT
G-3
FORM
OF
TRANSFER AFFIDAVIT AND AGREEMENT
|
STATE
OF
|
)
|
|
:ss.:
|
|
|
COUNTY
OF
|
)
|
___________________,
being first duly sworn, deposes, represents and warrants:
1. That
he/she is [Title of Officer] of [Name of Owner], a [savings institution]
[corporation] duly organized and existing under the laws of [the State of
__________] [the United States], (the “Owner”), (record or beneficial owner of
the Class R Certificates (the “Class R Certificates”) on behalf of which he/she
makes this affidavit and agreement). This Class R Certificates were issued
pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) dated as of _________ 1, 200_ among BNP Paribas Mortgage Securities
LLC, as company, [Name of Master Servicer], as master servicer (the “Master
Servicer”), and [Name of Trustee], as trustee (the “Trustee”).
2. That
the Owner (i) is not and will not be a “disqualified organization” as of
_____________ [date of transfer] within the meaning of Section 860E(e)(5) of
the
Internal Revenue Code of 1986, as amended (the “Code”), (ii) will endeavor to
remain other than a disqualified organization for so long as it retains its
ownership interest in the Class R Certificates, and (iii) is acquiring the
Class
R Certificates for its own account or for the account of another Owner from
which it has received an affidavit and agreement in substantially the same
form
as this affidavit and agreement. (For this purpose, a “disqualified
organization” means the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than
an
instrumentality all of the activities of which are subject to tax and, except
for ▇▇▇▇▇▇▇ Mac, a majority of whose board of directors is not selected by
any
such governmental entity) or any foreign government, international organization
or any agency or instrumentality of such foreign government or organization,
any
rural electric or telephone cooperative, or any organization (other than certain
farmers’ cooperatives) that is generally exempt from federal income tax unless
such organization is subject to the tax on unrelated business taxable
income).
3. That
the Owner is aware (i) of the tax that would be imposed on transfers of Class
R
Certificates to disqualified organizations under the Code, that applies to
all
transfers of Class R Certificates after March 31, 1988; (ii) that such tax
would
be on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a disqualified organization, on
the
agent; (iii) that the person otherwise liable for the tax shall be relieved
of
liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is not a disqualified organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Class R Certificates may be “noneconomic residual
interests” within the meaning of Treasury regulations promulgated pursuant to
the Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
unless no significant purpose of the transfer was to impede the assessment
or
collection of tax.
G-3-1
4. That
the Owner is aware of the tax imposed on a “pass-through entity” holding Class R
Certificates if at any time during the taxable year of the pass-through entity
a
disqualified organization is the record holder of an interest in such entity.
(For this purpose, a “pass through entity” includes a regulated investment
company, a real estate investment trust or common trust fund, a partnership,
trust or estate, and certain cooperatives.)
5. That
the Owner is aware that the Trustee will not register the transfer of any Class
R Certificates unless the transferee, or the transferee’s agent, delivers to it
an affidavit and agreement, among other things, in substantially the same form
as this affidavit and agreement. The Owner expressly agrees that it will not
consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are
false.
6. That
the Owner has reviewed the restrictions set forth on the face of the Class
R
Certificates and the provisions of Section 5.02(f) of the Pooling and Servicing
Agreement under which the Class R Certificates were issued (in particular,
clause (iii)(A) and (iii)(B) of Section 5.02(f) which authorize the Trustee
to
deliver payments to a person other than the Owner and negotiate a mandatory
sale
by the Trustee in the event the Owner holds such Certificates in violation
of
Section 5.02(f)). The Owner expressly agrees to be bound by and to comply with
such restrictions and provisions.
7. That
the Owner consents to any additional restrictions or arrangements that shall
be
deemed necessary upon advice of counsel to constitute a reasonable arrangement
to ensure that the Class R Certificates will only be owned, directly or
indirectly, by an Owner that is not a disqualified organization.
8. The
Owner’s Taxpayer Identification Number is _____________________.
9. This
affidavit and agreement relates only to the Class R Certificates held by the
owner and not to any other holder of the Class R Certificates. The Owner
understands that the liabilities described herein relate only to the Class
R
Certificates.
10. That
no purpose of the Owner relating to the transfer of any of the Class R
Certificates by the Owner is or will be to impede the assessment or collection
of any tax.
11. That
the Owner has no present knowledge or expectation that it will be unable to
pay
any United States taxes owed by it so long as any of the Certificates remain
outstanding. In this regard, the Owner hereby represents to and for the benefit
of the person from whom it acquired the Class R Certificate that the Owner
intends to pay taxes associated with holding such Class R Certificate as they
become due, fully understanding that it may incur tax liabilities in excess
of
any cash flows generated by the Class R Certificate.
G-3-2
12. That
the Owner has no present knowledge or expectation that it will become insolvent
or subject to a bankruptcy proceeding for so long as any of the Class R
Certificates remain outstanding.
13. The
Owner is a citizen or resident of the United States, a corporation, partnership
or other entity created or organized in, or under the laws of, the United States
or any political subdivision thereof, provided that with respect to any
partnership or other entity treated as a partnership for United States federal
income tax purposes, all persons that own an interest in such partnership either
directly or through any entity that is not a corporation for United States
federal income tax purposes are required by the applicable operative agreement
to be United States Persons, or an estate or trust whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of
a
trade or business within the United States.
14. (a)
The Certificates (i) are not being acquired by, and will not be transferred
to,
any employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) or other retirement
arrangement, including individual retirement accounts and annuities, ▇▇▇▇▇
plans
and bank collective investment funds and insurance company general or separate
accounts in which such plans, accounts or arrangements are invested, that is
subject to Section 406 of ERISA or Section 4975 of the Internal Revenue Code
of
1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being acquired
with “plan assets” of a Plan within the meaning of the Department of Labor
(“DOL”) regulation, 29 C.F.R. § 2510.3-101 or otherwise under ERISA, and (iii)
will not be transferred to any entity that is deemed to be investing in plan
assets within the meaning of the DOL regulation, 29 C.F.R. § 2510.3-101 or
otherwise under ERISA; or
(b) The
Owner
will provide the Trustee, the Depositor and the Master Servicer with an opinion
of counsel acceptable to and in form and substance satisfactory to the Trustee,
the Depositor and the Master Servicer to the effect that the purchase of
Certificates is permissible under applicable law, will not constitute or result
in any non-exempt prohibited transaction under ERISA or Section 4975 of the
Code
and will not subject the Trustee, the Depositor or the Master Servicer to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Pooling and
Servicing Agreement.
In
addition, the Owner hereby certifies, represents and warrants to, and covenants
with, the Depositor, the Trustee and the Master Servicer that the Owner will
not
transfer such Certificates to any Plan or person unless either such Plan or
person meets the requirements set forth in either (a) or (b) above.
Capitalized
terms used but not defined herein shall have the meanings assigned in the
Pooling and Servicing Agreement.
G-3-3
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ______ day of
_____________, _____.
G-3-4
|
[NAME
OF OWNER]
By:
________________________________
[Name
of Officer]
[Title
of Officer]
|
|
|
[Corporate
Seal]
ATTEST:
________________________________
[Assistant]
Secretary
|
Personally
appeared before me the above-named [Name of Officer], known or proved to me
to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Owner, and acknowledged to me that such person executed the
same
as such person’s free act and deed and the free act and deed of the
Owner.
Subscribed
and sworn before me this ____ day of ___________, 200__.
|
____________________________________
NOTARY
PUBLIC
COUNTY
OF_________________________
STATE
OF___________________________
My
Commission expires the ____ day of __________
,200__.
|
G-3-5
EXHIBIT
G-4
FORM
OF
TRANSFEROR CERTIFICATE
______________,
200__
BNP
Paribas Mortgage Securities LLC
[Address]
[Name
of
Trustee]
_____________________
_____________________
Attention:
BNP Paribas Mortgage Securities LLC, Series 200_-_
|
Re:
|
BNP
Paribas Mortgage Securities LLC,
Mortgage
Pass-Through Certificates,
Series
200_-_, Class R
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the sale by ________________
(the
“Seller”) to __________________________________________ (the “Purchaser”) of a
____% Percentage Interest in the Mortgage Pass-Through Certificates, Series
200_-_, Class R (the “Certificates”), issued pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated
as of _________ 1, 200_, among BNP Paribas Mortgage Securities LLC, as company
(the “Company”), [Name of Master Servicer], as master servicer and [Name of
Trustee], as trustee (the “Trustee”). All terms used herein and not otherwise
defined shall have the meaning set forth in the Pooling and Servicing Agreement.
The Seller hereby certifies, represents and warrants to, and covenants with,
the
Depositor and the Trustee that:
1. No
purpose of the Seller relating to the sale of the Certificates by the Seller
to
the Purchaser is or will be to impede the assessment or collection of any
tax.
2. The
Seller understands that the Purchaser has delivered to the Trustee and the
Master Servicer a transfer affidavit and agreement in the form attached to
the
Pooling and Servicing Agreement as Exhibit G-3. The Seller does not know or
believe that any representation contained therein is false.
G-4-1
3. The
Seller has at the time of the transfer conducted a reasonable investigation
of
the financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Seller
has
determined that the Purchaser has historically paid its debts as they have
become due and has found no significant evidence to indicate that the Purchaser
will not continue to pay its debts as they become due in the future. The Seller
understands that the transfer of the Certificates may not be respected for
United States income tax purposes (and the Seller may continue to be liable
for
United States income taxes associated therewith) unless the Seller has conducted
such an investigation.
4. The
Seller has no actual knowledge that the proposed Transferee is a Disqualified
Organization, an agent of a Disqualified Organization or a Non-United States
Person.
|
Very
truly yours,
____________________________________
(Seller)
|
|
|
By:_________________________________
Name:_______________________________
Title:________________________________
|
G-4-2
EXHIBIT
G-5
FORM
OF
INVESTOR REPRESENTATION LETTER
FOR
INSURANCE COMPANIES
G-5-1
EXHIBIT
H
MORTGAGE
LOAN SCHEDULE
(PROVIDED
UPON REQUEST)
H-1
EXHIBIT
I
SELLER’S
WARRANTY CERTIFICATE
I-1
EXHIBIT
J
FORM
OF
NOTICE UNDER SECTION 3.24 OF POOLING AND SERVICING AGREEMENT
___________
__, 200_
[NAME
OF
TRUSTEE]
______________________
______________________
|
Re:
|
BNP
Paribas Mortgage Securities LLC,
Mortgage
Pass-Through Certificates,
Series
200_-_
|
Pursuant
to Section 3.25 of the Pooling and Servicing Agreement, dated as of _________
1,
200_, relating to the Certificates referenced above, the undersigned does hereby
notify you that:
(c) The
prepayment assumption used in pricing the Certificates with respect to the
Mortgage Loans in Series 200_-_ consisted of a Prepayment Assumption (the
“Prepayment Assumption”) of ___% per annum.
(d) With
respect to each Class of Certificates comprising the captioned series, set
forth
below is (i), the first price, as a percentage of the Certificate Principal
Balance or Notional Amount of each Class of Certificates, at which 10% of the
aggregate Certificate Principal Balance or Notional Amount of each such Class
of
Certificates was first sold at a single price, if applicable, or (ii) if more
than 10% of a Class of Certificates have been sold but no single price is paid
for at least 10% of the aggregate Certificate Principal Balance or Notional
Amount of such Class of Certificates, then the weighted average price at which
the Certificates of such Class were sold expressed as a percentage of the
Certificate Principal Balance or Notional Amount of such Class of Certificates,
(iii) if less than 10% of the aggregate Certificate Principal Balance or
Notional Amount of a Class of Certificates has been sold, the purchase price
for
each such Class of Certificates paid by [Name of Underwriter] (the
“Underwriter”), expressed as a percentage of the Certificate Principal Balance
or Notional Amount of such Class of Certificates calculated by: (1) estimating
the fair market value of each such Class of Certificates as of [______], 20[__];
(2) adding such estimated fair market value to the aggregate purchase prices
of
each Class of Certificates described in clause (i) or (ii) above; (3) dividing
each of the fair market values determined in clause (1) by the sum obtained
in
clause (2); (4) multiplying the quotient obtained for each Class of Certificates
in clause (3) by the purchase price paid by the Underwriter for all the
Certificates purchased by it; and (5) for each Class of Certificates, dividing
the product obtained from such Class of Certificates in clause (4) by the
initial Certificate Principal Balance or Notional Amount of such Class of
Certificates or (iv) the fair market value (but not less than zero) as of the
Closing Date of each Certificate of each Class of Certificates retained by
the
Depositor or an affiliate corporation, or delivered to the seller:
J-1
|
Series
200_-_
|
|
|
Class
A:
|
____%
|
|
Class
B:
|
____%
|
|
Class
R:
|
____%
|
The
prices and values set forth above do not include accrued interest with respect
to periods before the closing.
|
BNP
PARIBAS MORTGAGE SECURITIES LLC
By:________________________________
Name:
Title:
|
J-2
EXHIBIT
K
FORM
OF
DEPOSITOR CERTIFICATION
|
Re:
|
BNP
Paribas Mortgage Securities LLC,
|
Mortgage
Pass-Through Certificates, Series 200_-_
I,
__________________________, certify that:
|
1.
|
I
have reviewed this annual report on Form 10-K, and all reports on
Form 8-K
containing distribution and servicing reports filed in respect of
periods
included in the year covered by this annual report, of BNP Paribas
Mortgage Securities Trust [________] (the
“Trust”);
|
|
2.
|
Based
on my knowledge, the information in these reports, 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 last day of the period covered by this annual
report;
|
|
3.
|
Based
on my knowledge, the distribution information required to be prepared
by
the Trustee based upon the servicing information required to be provided
by each Servicer under the Pooling and Servicing Agreement is included
in
these reports;
|
|
4.
|
Based
on my knowledge and upon the annual compliance statements included
in the
report and required to be delivered to the Trustee in accordance
with the
terms of the Pooling and Servicing Agreement and based upon the review
required under the Pooling and Servicing Agreement, and except as
disclosed in the report, each Servicer has fulfilled its obligations
under
the Pooling and Servicing Agreement;
and
|
|
5.
|
The
reports disclose all significant deficiencies relating to each Servicer's
compliance with the minimum servicing standards based, in each case,
upon
the report provided by an independent public accountant, after conducting
a review in compliance with the Uniform Single Attestation Program
for
Mortgage Bankers or similar standard as set forth in the Pooling
and
Servicing Agreement, that is included in these
reports.
|
In
giving
the certifications above, I have reasonably relied on the information provided
to me by the following unaffiliated parties: each Servicer and the
Trustee.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated [___________] (the “Pooling and Servicing
Agreement”), among BNP Paribas Mortgage Securities LLC, as depositor (the
“Depositor”), [__________], as a servicer (“[__________]”),[__________], as
master servicer and [__________], as trustee (the “Trustee”).
____________________________________
[Name]
[Title]
[Date]
K-1
EXHIBIT
L
FORM
OF
TRUSTEE CERTIFICATION
|
Re:
|
BNP
Paribas Mortgage Securities LLC,
Mortgage Pass-Through Certificates, Series 200_-_ |
[__________]
(the “Trustee”) hereby certifies to BNP Paribas Mortgage Securities LLC (the
“Depositor”), and each Person, if any, who “controls” the Depositor within the
meaning of the Securities Act of 1933, as amended, and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
(a) The
Trustee has reviewed the annual report on Form 10-K for the fiscal year [___],
and all reports on Form 8-K containing distribution reports filed in respect
of
periods included in the year covered by that annual report, of the Depositor
relating to the above-referenced trust;
(b) Based
on
the Trustee's knowledge, and assuming the accuracy and completeness of the
information supplied to the Trustee by each Servicer, the distribution
information in the distribution reports contained in all reports on Form 8-K
included in the year covered by the annual report on Form 10-K for fiscal year
[_____], prepared by the Trustee, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact required by the
Pooling and Servicing Agreement to be included therein and necessary to make
the
statements made, in light of the circumstances under which such statements
were
made, not misleading as of the last day of the period covered by that annual
report; and
(c) Based
on
the Trustee's knowledge, the distribution information required to be provided
by
the Trustee under the Pooling and Servicing Agreement is included in these
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated [__________] (the “Pooling and Servicing
Agreement”), among
BNP
Paribas Mortgage Securities LLC, as depositor (the “Depositor”), [__________],
as a servicer (“[__________]”),[__________], as master servicer and
[__________], as trustee (the “Trustee”).
[__________]
as
Trustee
By:
[Name]
[Title]
[Date]
L-1
EXHIBIT
M
FORM
SERVICER CERTIFICATION
|
Re:
|
BNP
Paribas Mortgage Securities LLC,
Mortgage Pass-Through Certificates, Series 200_-_ |
I,
___________________________, a duly elected and acting officer of
[__________________] (the “Master Servicer”), certify pursuant to Section
8.11(d) of the Pooling and Servicing Agreement to the Depositor, the Trustee
and
each Person, if any, who “controls” the Depositor or the Trustee within the
meaning of the Securities Act of 1933, as amended, and their respective officers
and directors, with respect to the calendar year immediately preceding the
date
of this Certificate (the “Relevant Year”), as follows”:
(a) For
purposes of this Certificate, “Relevant Information” means the information in
the certificate provided pursuant to Section 3.19 of the Pooling and Servicing
Agreement (the “Annual Compliance Certificate”) for the Relevant Year and the
information in all servicing reports required pursuant to the Pooling and
Servicing Agreement to be provided by the Servicer to the Trustee during the
Relevant Year (as such information is amended or corrected in writing and
delivered to the Trustee). Based on my knowledge, the Relevant Information,
taken as a whole, does not contain any untrue statement of a material fact
or
omit to state a material fact required to be stated therein which is necessary
to make the statements made therein, in light of the circumstances under which
such statements were made, not misleading as of the last day of the Relevant
Year;
(b) The
Relevant Information required to be provided to the Trustee under the Pooling
and Servicing Agreement has been provided to the Trustee;
(c) I
am
responsible for reviewing the activities performed by the Servicer under the
Pooling and Servicing Agreement during the Relevant Year. Based upon the review
required under the Pooling and Servicing Agreement and except as disclosed
in
the Annual Compliance Certificate or the accountants' statement provided
pursuant to Section 3.20 of the Pooling and Servicing Agreement, to the best
of
my knowledge, the Servicer has fulfilled its obligations under the Pooling
and
Servicing Agreement throughout the Relevant Year.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated [___________] (the “Pooling and Servicing
Agreement”), among BNP Paribas Mortgage Securities LLC, as depositor (the
“Depositor”), [__________], as a servicer (“[__________]”),[__________], as
master servicer and [__________], as trustee (the “Trustee”).
[ ],
as
Master
Servicer
By:
[Name]
[Title]
M-1
EXHIBIT
N
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the party identified
as responsible for preparing the Securities Exchange Act Reports pursuant to
Section 3.16 of the Pooling and Servicing Agreement. The
trustee in this transaction is responsible for all of the securities
administrator functions.
Under
Item 1 of Form 10-D: a) items marked “monthly statements to certificateholders”
are required to be included in the periodic Distribution Date statement under
Section 5.06 of the Pooling and Servicing Agreement, provided by the Trustee
based on information received from the party providing such information; and
b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the monthly statements to certificateholders, provided by the party
indicated. Information under all other Items of Form 10-D is to be included
in
the Form 10-D report. All such information and any other Items of Form 8-K
and
Form 10-K set forth in this exhibit shall be sent to the Trustee and the
Depositor.
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-backed
securities.
|
||||||
|
1
|
Distribution
and Pool Performance Information
|
||||||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
|||||||
|
(1)
Any applicable record dates, accrual dates, determination dates
for
calculating distributions and actual distribution dates for the
distribution period.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(2)
Cash flows received and the sources thereof for distributions,
fees and
expenses.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(3)
Calculated amounts and distribution of the flow of funds for
the period
itemized by type and priority of payment, including:
|
X
(monthly
statements to certificateholders)
|
||||||
N-1
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
(i)
Fees or expenses accrued and paid, with an identification of
the general
purpose of such fees and the party receiving such fees or
expenses.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(ii)
Payments accrued or paid with respect to enhancement or other
support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of
the general
purpose of such payments and the party receiving such
payments.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(iii)
Principal, interest and other distributions accrued and paid
on the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
X
(monthly
statements to certificateholders)
|
N-2
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
X
(monthly
statements to certificateholders)
(only with respect to the reserve accounts)
|
||||||
|
(7)
Any amounts drawn on any credit enhancement or other support
identified in
Item 1114 of Regulation AB, as applicable, and the amount of
coverage
remaining under any such enhancement, if known and
applicable.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(8)
Number and amount of pool assets at the beginning and ending
of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average remaining term, pool factors and prepayment
amounts.
|
X
(monthly
statements to certificateholders)
|
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
|||||
|
(9)
Delinquency and loss information for the period.
|
X
(monthly
statements to certificateholders)
|
||||||
|
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool assets.
(methodology)
|
X
|
N-3
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of
funds
advanced and the general source of funds for
reimbursements.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(11)
Any material modifications, extensions or waivers to pool asset
terms,
fees, penalties or payments during the distribution period or
that have
cumulatively become material over time.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(12)
Material breaches of pool asset representations or warranties
or
transaction covenants.
|
X
|
X
(if
agreed upon by the parties)
|
X
|
||||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger
and whether
the trigger was met.
|
X
(monthly
statements to certificateholders)
|
||||||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
|
X
|
||||||
|
information
regarding any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such
as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
|
X
|
X
|
X
|
N-4
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
X
|
X
|
|||||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
X
|
||||||
|
2
|
Legal
Proceedings
|
||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders,
including
proceedings known to be contemplated by governmental
authorities:
|
|||||||
|
Sponsor
(Seller)
|
X
|
||||||
|
Depositor
|
X
|
||||||
|
Trustee
|
X
|
||||||
|
Issuing
entity
|
X
|
||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
||||||
|
Custodian
|
X
|
N-5
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
3
|
Sales
of Securities and Use of Proceeds
|
||||||
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
X
|
||||||
|
4
|
Defaults
Upon Senior Securities
|
||||||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
X
|
||||||
|
5
|
Submission
of Matters to a Vote of Certificateholders
|
||||||
|
Information
from Item 4 of Part II of Form 10-Q
|
X
|
||||||
|
6
|
Significant
Obligors of Pool Assets
|
||||||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
X
|
||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|||||||
|
7
|
Significant
Enhancement Provider Information
|
||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|||||||
|
Determining
applicable disclosure threshold
|
X
|
||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
N-6
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|||||||
|
Determining
current maximum probable exposure
|
X
|
||||||
|
Determining
current significance percentage
|
X
|
||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||||||
|
8
|
Other
Information
|
||||||
|
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below.
|
||||||
|
9
|
Exhibits
|
||||||
|
Distribution
report
|
X
|
||||||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
X
|
||||||
|
8-K
|
Must
be filed within four business days of an event reportable on
Form
8-K.
|
||||||
|
1.01
|
Entry
into a Material Definitive Agreement
|
||||||
|
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is
not a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are
fully
disclosed in the prospectus
|
X
|
X
|
X
|
X
|
|||
N-7
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
1.02
|
Termination
of a Material Definitive Agreement
|
X
|
X
|
X
|
X
|
||
|
Disclosure
is required regarding termination of any definitive agreement
that is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
X
|
X
|
X
|
X
|
X
|
||
|
1.03
|
Bankruptcy
or Receivership
|
||||||
|
Disclosure
is required regarding the bankruptcy or receivership, if known
to the
Master Servicer, with respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, affiliated Servicer, other
Servicer
servicing 20% or more of pool assets at time of report, other
material
servicers, Trustee, significant obligor, credit enhancer (10%
or more),
derivatives counterparty, Custodian
|
X
|
X
|
X
|
X
|
X
|
||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement [in
this transaction there is no off-balance sheet
arrangement]
|
N-8
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to certificateholders [in this transaction
there
will be no events other than waterfall triggers]
|
X
|
||||||
|
3.03
|
Material
Modification to Rights of Certificateholders
|
||||||
|
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
X
|
||||||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||||||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
X
|
||||||
|
5.06
|
Change
in Shell Company Status
|
||||||
|
[Not
applicable to ABS issuers]
|
X
|
||||||
|
6.01
|
ABS
Informational and Computational Material
|
||||||
|
[Not
included in reports to be filed under Section 3.16]
|
X
|
||||||
|
6.02
|
Change
of Servicer or Trustee
|
||||||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
X
|
X
|
X
|
N-9
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
Reg
AB disclosure about any new master servicer is also
required.
|
X
|
||||||
|
Reg
AB disclosure about any new trustee is also required.
|
X
|
||||||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
||||||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives.
|
X
|
X
|
|||||
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
X
|
X
|
|||||
|
6.04
|
Failure
to Make a Required Distribution
|
X
|
|||||
|
6.05
|
Securities
Act Updating Disclosure
|
||||||
|
If
any material pool characteristic differs by 5% or more at the
time of
issuance of the securities from the description in the final
prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
X
|
|
|||||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
X
|
||||||
|
7.01
|
Regulation
FD Disclosure
|
X
|
X
|
X
|
X
|
||
|
8.01
|
Other
Events
|
||||||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
X
|
N-10
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
9.01
|
Financial
Statements
and
Exhibits
|
The
Responsible Party applicable to reportable event.
|
|||||
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||||||
|
9B
|
Other
Information
|
||||||
|
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K as indicated
above.
|
||||||
|
15
|
Exhibits
and Financial Statement Schedules
|
||||||
|
Item
1112(b) - Significant
Obligor Financial Information
|
X
|
||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
|
|||||||
|
Determining
applicable disclosure threshold
|
X
|
||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information
|
|||||||
|
Determining
current maximum probable exposure
|
X
|
||||||
|
Determining
current significance percentage
|
X
|
||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders,
including
proceedings known to be contemplated by governmental
authorities:
|
|||||||
|
Sponsor
(Seller)
|
X
|
||||||
|
Depositor
|
X
|
||||||
|
Trustee
|
X
|
||||||
|
Issuing
entity
|
X
|
||||||
N-11
|
Form
|
Item
|
Description
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
||||||
|
Custodian
|
X
|
||||||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
|
|||||||
|
Sponsor
(Seller)
|
X
|
||||||
|
Depositor
|
X
|
||||||
|
Trustee
|
X
|
||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
||||||
|
Originator
|
X
|
||||||
|
Custodian
|
X
|
||||||
|
Credit
Enhancer/Support Provider
|
X
|
||||||
|
Significant
Obligor
|
X
|
||||||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
X
|
X
|
X
|
||||
|
Item
1123 - Servicer Compliance Statement
|
X
|
X
|
N-12
EXHIBIT
CC
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Paying
Agent
|
Trustee
|
Notes
|
|
General
Servicing Considerations
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
|
X-1
|
1
- attest to knowledge but not to process
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|||||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
NA
|
||||||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
|||||
|
Cash
Collection and Administration
|
||||||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
X
|
|||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
X
|
|||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
X
|
CC-1
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
X
|
|||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
X
|
|||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
||||||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
X
|
X
|
|||
|
Investor
Remittances and Reporting
|
||||||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
X
|
CC-2
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
X
|
|||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
X
|
|||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
X
|
X
|
|||
|
Pool
Asset Administration
|
||||||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|||||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
|||||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
X
|
|||||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
||||||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||||||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||||||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
CC-3
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||||||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
||||||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||||||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||||||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||||||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||||||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
X
|
||||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
X
|
CC-4